The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
BENJAMIN BRINKMOELLER, DOCKET NUMBER
Appellant, DC-0831-24-0080-I-1
v.
OFFICE OF PERSONNEL DATE: March 24, 2025
MANAGEMENT,
Agency.
THIS ORDER IS NONPRECEDENTIAL 1
Gregory R. Williams , Esquire, Durham, North Carolina, for the appellant.
Sherri A. McCall , Washington, D.C., for the agency.
BEFORE
Henry J. Kerner, Vice Chairman
Cathy A. Harris, Member
REMAND ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed for lack of jurisdiction his appeal of an Office of Personnel
Management (OPM) final decision. For the reasons discussed below, we GRANT
the appellant’s petition for review, VACATE the initial decision, and REMAND
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
the case to the Washington Regional Office for further adjudication in accordance
with this Remand Order.
BACKGROUND
On October 27, 2023, the appellant filed a Board appeal contesting an OPM
final decision determining that he was not eligible to receive a lump sum death
benefit under the Civil Service Retirement System (CSRS) based on his mother’s
death; however, he did not provide a copy of that decision. Initial Appeal File
(IAF), Tab 1. On November 6, 2023, the administrative judge issued an
acknowledgment order wherein he informed the appellant of the applicable
burdens of proof and what he needed to do to establish Board jurisdiction over his
appeal. IAF, Tab 2 at 2-3. The administrative judge explained that the Board has
jurisdiction over OPM determinations affecting an appellant’s rights or interests
under CSRS only after OPM issues a final decision on the matter, and he ordered
the appellant to file evidence and argument as to why the Board has jurisdiction
here by, for example, filing a copy of OPM’s final decision. Id. The
administrative judge also ordered the agency to respond to the order, Id. at 8-9,
but neither party responded. On March 8, 2024, the administrative judge issued a
second order advising the parties that they had failed to respond to the
acknowledgment order and instructing them to comply with that initial order.
IAF, Tab 4. On April 12, 2024, after the parties again failed to respond, the
administrative judge issued a third order providing the appellant with a final
opportunity to file evidence and argument to establish Board jurisdiction, “e.g.,
by filing a copy of OPM’s final or reconsideration decision,” before dismissing
the appeal. IAF, Tab 5. The appellant did not respond.
On April 16, 2024, the administrative judge issued an initial decision,
without holding the appellant’s requested hearing, dismissing the appeal for lack
of jurisdiction. IAF, Tab 6, Initial Decision (ID) at 1-4. In so doing, he
explained that he had provided the appellant with three opportunities over a
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5-month span to submit evidence or argument, such as a final OPM decision,
establishing Board jurisdiction over the appeal. ID at 3-4. He concluded that in
the absence of any such evidence or argument, he could not find that the appellant
had met his jurisdictional burden. ID at 4.
The appellant has filed a petition for review, Petition for Review (PFR)
File, Tab 1, OPM has filed a response, PFR File, Tab 4, and the appellant has
filed a reply to the agency’s response, PFR File, Tab 6.
DISCUSSION OF ARGUMENTS ON REVIEW
The Board’s jurisdiction is not plenary; rather, it is limited to 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). Under 5 C.F.R. § 831.110, an individual whose
rights or interest under CSRS are affected by a final decision of OPM may
request the Board to review the decision in accordance with procedures
prescribed by the Board. See 5 U.S.C. § 8347(d)(1). Generally, the Board has
jurisdiction over OPM determinations affecting an appellant’s rights or interests
under CSRS only after OPM issues a final decision on the matter. Miller v.
Office of Personnel Management, 123 M.S.P.R. 68, ¶ 7 (2015); Coffey v. U.S.
Postal Service, 77 M.S.P.R. 281, 286 (1998). A “final decision” is a decision that
OPM issues after a request for reconsideration of an initial decision, or a decision
OPM that designates as final. 5 C.F.R. § 831.109(f). It is undisputed that neither
party filed a copy of the final decision before the administrative judge.
For the first time on review, the appellant provides a copy of the OPM final
decision determining that he was not eligible to receive a lump sum death benefit
under the CSRS based on his mother’s death. PFR File, Tab 1 at 11-12. The
Board generally will not consider evidence submitted for the first time on review
absent a showing that it was unavailable before the record closed below despite
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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 asserts that his legal
representative lost access to the Board’s e-filing system shortly after filing this
appeal; specifically, that he was unable to reset his password without the
assistance of a system administrator, and despite submitting a ticket and making
multiple phone calls seeking technical support, he did not regain access to the
system until a few days after the initial decision was issued. PFR File, Tab 1
at 7-8. The appellant also asserts that his representative made numerous phone
calls to OPM seeking updates on the appeal, but the agency never responded, and
as a result, he did not receive the administrative judge’s orders or the initial
decision until the Board’s regional office provided him with courtesy copies on
April 18, 2024. Id. at 7-8. Finally, the appellant argues that the administrative
judge abused his discretion in dismissing the appeal as a sanction, noting that
OPM also failed to comply with the administrative judge’s orders. Id.
Regardless of whether the appellant has shown that OPM’s final decision
was not available to him before the record closed despite his due diligence, the
Board has recognized that appeals involving an appellant’s entitlement to benefits
are fundamentally different from other types of appeals within its jurisdiction,
and equity is of greater concern. See Moore-Meares v. Office of Personnel
Management, 105 M.S.P.R. 613, ¶ 8 (2007) (stating that, in annuity cases, the
paramount concern is whether the appellant is entitled to the benefits she seeks,
not how well she argues her case); 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). Furthermore, the issue of Board
jurisdiction is always before the Board and may be raised by either party or sua
sponte by the Board at any time during a Board proceeding. Stoglin v.
Department of the Air Force, 123 M.S.P.R. 163, ¶ 7 (2015), aff’d, 640 F. App’x
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864 (Fed. Cir. 2016); see Boechler v. Department of the Interior, 109 M.S.P.R.
542, ¶ 10 (2008) (observing that the Board has an interest in ensuring that
jurisdictional determinations are correct), aff’d, 328 F. App’x 660 (Fed. Cir.
2009); cf. Bent v. Department of State, 123 M.S.P.R. 304, ¶ 6 (2016) (explaining
that it is the Board’s practice to adjudicate an appeal that was premature when
filed but ripens while pending before the Board).
Because the appellant has now submitted evidence that OPM issued a final
decision on his eligibility for death benefits and, therefore, has established that
the Board has jurisdiction over this appeal, we find it appropriate to remand this
appeal for adjudication on the merits. See 5 C.F.R. § 1201.115(e). On remand,
the administrative judge shall hold the appellant’s requested hearing. IAF, Tab 1
at 6; PFR File, Tab 1 at 9. OPM has filed a pleading explaining that another
individual’s rights or interest may be affected by a decision regarding the death
benefits at issue in this appeal. PFR File, Tab 5. Accordingly, on remand the
administrative judge shall put that individual on notice of this proceeding.
5 C.F.R. § 1201.34.
ORDER
For the reasons discussed above, we remand this case to the Washington
Regional Office for further adjudication in accordance with this Remand Order.
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.