Teodora L. Owen v. Office of Personnel Management

N OTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
TEODORA L. OWEN,
Petitioner
v.
OFFICE OF PERSONNEL MANAGEMENT,
Respondent
______________________
2016-1850
______________________
Petition for review of the Merit Systems Protection
Board in No. SF-0831-15-0543-I-1.
______________________
Decided: September 12, 2016
______________________
T EODORA L. O WEN, Zambales, Philippines, pro se.
J EFFREY L OWRY , Commercial Litigation Branch, Civil
Division, United States Department of Justice, Washing-
ton, DC, for respondent. Also represented by BENJAMIN C.
MIZER, R OBERT E. K IRSCHMAN, J R., D EBORAH A. BYNUM .
______________________
Before N EWMAN, D YK, and T ARANTO, Circuit Judges.
P ER CURIAM .

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OWEN v. OPM 2
Teodora L. Owen is the widow of John E. Owen, a
former federal government employee. In 2008, she filed
an application with the Office of Personnel Management
for survivor benefits under the Civil Service Retirement
System (CSRS) based on her late husband’s federal ser-
vice. OPM denied the application in 2010, the Merit
Systems Protection Board affirmed the same year, and we
dismissed Mrs. Owen’s appeal in early 2011 for failure to
prosecute.
In 2015, Mrs. Owen filed the application at issue in
the present appeal. She applied to OPM for permission to
make a deposit into the CSRS fund on behalf of her late
husband as a step toward receiving CSRS survivor bene-
fits. OPM declined to consider the application because, in
rejecting Mrs. Owen’s earlier application in the 2008–
2011 proceeding, it had already found that Mr. Owen’s
service was not a permissible basis for CSRS benefits.
The Board affirmed. We now affirm that decision.1
BACKGROUND
Mr. Owen was a federal civil-service employee in the
competitive service from April 9, 1945, through August
30, 1945. After leaving that post, he requested and re-
ceived a refund of the retirement deductions that had
been deposited into the CSRS fund. Many years later,
starting in 1969, Mr. Owen held a position with a Non-
Appropriated Fund Instrumentality (NAFI), the U.S.
Navy Exchange, in Subic Bay, Philippines—a position he
lost on September 4, 1991, based on a federal reduction in
force. During his NAFI service, Mr. Owen declined to
participate in the NAFI’s retirement and insurance plans.
Mr. Owen died on July 13, 1996.
1 We grant Mrs. Owen’s motion to file a supple-
mental memorandum in lieu of oral argument.

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OWEN v. OPM 3
On September 2, 2008, Mrs. Owen filed her first
application with OPM for survivor benefits based on her
late husband’s federal service. OPM found that Mrs.
Owen was not entitled to benefits because the Civil Ser-
vice Commission had refunded Mr. Owen’s retirement
deductions in 1946. After an initial remand from the
Board for further consideration of Mr. Owen’s federal
employment between 1969 and 1991, see Owen v. Office of
Pers. Mgmt., No. SF-0831-09-0452-I-1, 2009 WL 3379697
(MSPB Aug. 6, 2009) (Owen I), OPM found that the 1969–
1991 service likewise did not entitle Mrs. Owen to the
requested CSRS benefits, because the Civil Service Re-
tirement Act did not cover Mr. Owen’s NAFI service. See
5 U.S.C. § 2105(c).
The Board affirmed. Owen v. Office of Pers. Mgmt.,
No. SF-0831-10-0366-I-1 (MSPB Nov. 2, 2010) (Owen II).
The Board specifically considered and rejected Mrs.
Owen’s argument that 5 U.S.C. § 8334(h) entitled her to
make a CSRS deposit on behalf of her husband based on
his 1969–1991 service. Id. at 2. The Board ruled that
§ 8334(h) applied only to covered positions and that a
retroactive deposit could not “convert” Mr. Owen’s non-
covered NAFI service in 1969–1991 “into a covered posi-
tion.” Id. Mrs. Owen appealed the Board’s decision to
this Court, but in January 2011, we dismissed the appeal
for failure to prosecute. Owen v. Office of Pers. Mgmt.,
453 F. App’x 971 (Fed. Cir. 2011).
On March 1, 2015, Mrs. Owen filed her second survi-
vor-benefit application with OPM, seeking again to quali-
fy by requesting the opportunity to make a deposit into
the CSRS fund based on her late husband’s service from
1969 to 1991. OPM declined to consider the application.
It stated that the agency had previously found that Mrs.
Owen was not eligible to make a CSRS deposit because
Mr. Owen’s NAFI service was not covered for federal civil
service retirement purposes.

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OWEN v. OPM 4
On appeal to the Board in 2015, Mrs. Owen argued
that her appeal “should be reopened for due process”
because Mr. Owen was misinformed, or relied on misin-
formation, when he requested a refund of his 1945 CSRS
deposits and when he refused to participate in the NAFI
retirement plan. J.A. 14. She also argued that Mr. Owen
was disabled and hospitalized when his NAFI position
ended and that she “inadvertently” neglected “to file for
disability or immediate retirement” at that time. Id. And
she argued that she was entitled to benefits under the
Nonappropriated Fund Instrumentalities Employees’
Retirement Credit Act of 1986, Pub. L. No. 99-638, 100
Stat. 3535 (codified at 5 U.S.C. § 8332(b)(16)).
The administrative judge held that claim preclusion
barred Mrs. Owen’s application. Specifically, the admin-
istrative judge found that, in Owen II, Mrs. Owen had
received a final decision from a forum with jurisdiction
over the merits of all the issues that she raised in her
appeal, and that the same parties were involved in both
cases. Alternatively, the administrative judge ruled that
issue preclusion would bar Mrs. Owen’s application even
if claim preclusion did not apply.
On review, the Board affirmed the administrative
judge’s finding of claim preclusion. Owen v. Office of Pers.
Mgmt., No. SF-0831-15-0543-I-1 (MSPB Feb. 1, 2016)
(Owen III). The Board also rejected Mrs. Owen’s argu-
ment that the administrative judge was biased, conclud-
ing that Mrs. Owen “offer[ed] no evidence or argument
that the administrative judge’s comments or actions
evidenced ‘a deep-seated favoritism or antagonism that
would make fair judgment impossible.’” J.A. 10.
Mrs. Owen appeals. We have jurisdiction under 28
U.S.C. § 1295(a)(9).

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OWEN v. OPM 5
D ISCUSSION
We must affirm the Board’s decision unless it is “(1)
arbitrary, capricious, an abuse of discretion, or otherwise
not in accordance with law; (2) obtained without proce-
dures required by law, rule, or regulation having been
followed; or (3) unsupported by substantial evidence.” 5
U.S.C. § 7703(c). We review the Board’s legal conclusions
on claim preclusion de novo. See Phillips/May Corp. v.
United States, 524 F.3d 1264, 1267 (Fed. Cir. 2008).
Under the doctrine of claim preclusion applied by the
Board (and federal courts), “a valid, final judgment on the
merits of an action bars a second action involving the
same parties or their privies based on the same cause of
action.” Peartree v. U.S. Postal Serv., 66 M.S.P.R. 332,
337 (1995); see also Federated Dep’t Stores, Inc. v. Moitie,
452 U.S. 394, 398 (1981); Ammex, Inc. v. United States,
334 F.3d 1052, 1055 (Fed. Cir. 2003). Where it applies,
claim preclusion prevents “the parties or their privies
from relitigating issues that were or could have been
raised in the prior action.” Peartree, 66 M.S.P.R. at 337.
According to the Board’s claim-preclusion standard, a
prior judgment bars a subsequent action if (1) the prior
judgment was rendered by a forum with competent juris-
diction; (2) the prior judgment was a final judgment on
the merits; and (3) the same cause of action and the same
parties or their privies were involved in both cases. Id.
The Board properly held that claim preclusion, based
on the 2010 Board decision (Owen II), barred Mrs. Owen’s
new appeal. Owen II was a valid, final judgment on the
merits of Mrs. Owen’s claim for CSRS survivor benefits
based on Mr. Owen’s federal service. See Peartree, 66
M.S.P.R. at 337. Claim preclusion therefore applied to
any issues that Mrs. Owen raised or could have raised in
Owen II. See id.
That bar covers each of the issues Mrs. Owen has
raised in supporting her second application, brought to

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OWEN v. OPM 6
the Board in 2015 and now before us. For example, in
Owen II, the Board found that “Mr. Owen consistently
rejected the retirement plan offered by the Navy Ex-
change to NAFI employees” and “withdrew the retirement
deductions covering his 1945 employment.” J.A. 17. Mrs.
Owen could have raised in Owen II her current allega-
tions about misinformation affecting Mr. Owen’s 1946
withdrawal of his CSRS deposits and about his decisions
not to participate in the NAFI retirement plan. Likewise,
the Board in Owen II considered and rejected Mrs. Owen’s
argument that her late husband’s disability entitled him
to benefits and excused her failure to file. Finally, the
Board in Owen II considered and rejected Mrs. Owen’s
argument that the Nonappropriated Fund Instrumentali-
ties Employees’ Retirement Credit Act of 1986 supported
the benefits claim—concluding that the 1986 Act applies
only to certain civil service employees who held NAFI
positions between 1952 and 1966, see 5 U.S.C.
§ 8332(b)(16), a period in which Mr. Owen did not hold
such a position.
Mrs. Owen’s allegations of misconduct do not under-
mine the entitlement of Owen II to preclusive effect. Mrs.
Owen alleges that “there was concealment of the facts and
misinformation that the agency was concealing the right
of a widow.” Pet. Br. 1. But she has not offered, and we
do not ourselves see, any meaningful evidence to support
those allegations. In these circumstances, the Board’s
ruling here properly rests on claim preclusion.
CONCLUSION
For the foregoing reasons, the judgment of the Board
is affirmed.
No costs.
AFFIRMED

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