The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JHAMIE WALLACE, DOCKET NUMBER
Appellant, SF-844E-20-0365-I-1
v.
OFFICE OF PERSONNEL DATE: July 25, 2024
MANAGEMENT,
Agency.
THIS ORDER IS NONPRECEDENTIAL 1
Jhamie Wallace , Peoria, Arizona, pro se.
Linnette Scott , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member*
*Member Kerner did not participate in the adjudication of this appeal.
REMAND ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed for lack of jurisdiction her appeal of the Office of Personnel
Management (OPM) reconsideration decision denying her application for
disability retirement under the Federal Employees’ Retirement System (FERS).
1
A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
2
For the reasons discussed below, we GRANT the appellant’s petition for review,
VACATE the initial decision, and REMAND the case to the regional office for
further adjudication in accordance with this Remand Order.
BACKGROUND
On April 9, 2020, the appellant filed an appeal with the Board contesting
her ineligibility for disability retirement under FERS. Initial Appeal File (IAF),
Tab 1 at 3. The appellant indicated on her initial appeal form that she had
received OPM’s final decision on March 31, 2020; however, she did not provide a
copy of the decision. Id. The appellant requested a hearing on the matter. Id.
at 2.
The administrative judge issued an acknowledgment order wherein he
ordered the agency to provide all documents material to the appeal. IAF, Tab 2
at 6-7, 9. The administrative judge explained that failure to comport with his
order may result in sanctions pursuant to 5 C.F.R. § 1201.43. Id. at 1. The
administrative judge also issued a jurisdictional order explaining that the Board’s
jurisdiction over retirement matters under FERS does not vest until OPM has
issued a final decision, IAF, Tab 3 at 1, and he ordered the appellant to file
evidence and argument as to why the Board has jurisdiction over the matter, id.
at 1-2. The administrative judge also provided the agency an opportunity to
respond to his order. Id. Neither party responded.
Thereafter, the administrative judge issued an order explaining that the
agency had failed to respond to his initial acknowledgment order, IAF, Tab 4 at 1,
and he ordered the agency to file a response within 7 days, id. The agency did
not respond; instead, 14 days later, it filed a motion for a 30-day extension. IAF,
Tab 5 at 4-6. The administrative judge denied this request, IAF, Tab 6 at 1-2, and
he again ordered the agency to file a response to his acknowledgment order, id.
at 2; however, the agency failed to respond.
3
Without holding the appellant’s hearing, the administrative judge issued an
initial decision dismissing the appeal for lack of jurisdiction. IAF, Tab 7, Initial
Decision (ID) at 1-3. In so doing, he explained that, apart from a “single,
conclusory allegation,” the appellant had failed to present any evidence or
argument that she had received a final decision from the agency. ID at 2.
The appellant has filed a petition for review. Petition for Review (PFR)
File, Tab 1. OPM has not filed a response. In her petition for review, the
appellant does not provide any argument; instead, she provides two copies of
OPM’s March 31, 2020 reconsideration decision denying her application for
disability retirement under FERS. Id. at 4-15.
DISCUSSION OF ARGUMENTS ON REVIEW
The Board’s jurisdiction is limited to those matters over which it has been
given jurisdiction by law, rule, or regulation. Maddox v. Merit Systems
Protection Board, 759 F.2d 9, 10 (Fed. Cir. 1985). An appellant bears the burden
of proving the Board’s jurisdiction by preponderant evidence. 5 C.F.R.
§ 1201.56(b)(2)(i)(A). The Board generally has jurisdiction over the agency’s
determinations affecting an appellant’s rights or interests under the retirement
system only after OPM has issued a final decision, that is, a reconsideration
decision, on the matter. See McNeese v. Office of Personnel Management,
61 M.S.P.R. 70, 73-74, aff’d, 40 F.3d 1250 (Fed. Cir. 1994) (Table). Board
regulations require that any such appeal therefrom be filed no later than 30 days
after the effective date, if any, of the action being appealed, or 30 days after the
date of receipt of the agency’s decision, whichever is later. 5 C.F.R.
§ 1201.22(b).
For the first time on review, the appellant provides a March 31, 2020 final
decision letter from OPM. PFR File, Tab 1 at 4-15. In this letter, OPM upheld
its initial decision to disallow the appellant’s disability retirement application
under FERS. Id. at 4, 10. The Board generally will not consider evidence
4
submitted for the first time on review absent a showing that it was unavailable
before the record closed despite the party’s due diligence. Avansino v. U.S.
Postal Service, 3 M.S.P.R. 211, 214 (1980); 5 C.F.R. § 1201.115(d). Here, the
appellant provides no explanation as to why she failed to submit this decision to
the administrative judge.
Nevertheless, the Board has recognized that appeals involving an
appellant’s entitlement to retirement benefits are fundamentally different from
other types of appeals within its jurisdiction. Matson v. Office of Personnel
Management, 105 M.S.P.R. 547, ¶ 16 (2007); Edney v. Office of Personnel
Management, 79 M.S.P.R. 60, ¶ 6 (1998) (explaining that, unlike the competing
interests of agency management and employee rights involved in a disciplinary
appeal, there is only one primary interest involved in a retirement appeal, that of
the applicant’s entitlement under law to a benefit). Here, the documents
submitted on review suggest that the appellant timely appealed OPM’s final
decision pertaining to her eligibility for disability retirement under FERS to the
Board. IAF, Tab 1; PFR File, Tab 1 at 4, 10; 5 C.F.R. § 1201.22(b). Despite her
timely appeal, OPM failed to comply with multiple orders to submit documents
material to the matter. IAF, Tab 2 at 6-7, 9, Tab 4 at 1, Tab 6 at 2. Moreover, a s
noted, OPM did not respond to the appellant’s petition for review. In these
circumstances, we find it appropriate to remand this appeal for further
adjudication based on the evidence provided with the appellant’s petition for
review. 2 See 5 C.F.R. § 1201.115(e).
2
OPM’s reconsideration decision contains a slight naming discrepancy, i.e., the
decision lists the surname “WALLACE HANNA” in lieu of merely “Wallace.”
Compare PFR File, Tab 1 at 4, 10, with IAF, Tab 1 at 1. The administrative judge
should resolve this discrepancy on remand.
5
ORDER
For the reasons discussed above, we remand this case to the regional office
for further adjudication in accordance with this Remand Order.
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.