Opinion

Richard Young v. Office of Personnel Management

Court: Merit Systems Protection Board
Filed: Jan 21, 2026
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 38.3%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

RICHARD YOUNG, DOCKET NUMBER

Appellant, PH-831M-19-0459-I-1

OFFICE OF PERSONNEL DATE: January 21, 2026

MANAGEMENT,

Agency,

and

SCOTT KUPOR, DIRECTOR OF THE

OFFICE OF PERSONNEL

MANAGEMENT

Intervenor. 1

THIS FINAL ORDER IS NONPRECEDENTIAL 2

Daniel M. Rosenthal , Washington, D.C., for the appellant.

Nicole M. Lohr , Karen Silveira , and Tanisha Elliott Evans , Washington,

D.C., for the agency and for the intervenor, the Director of the Office of

Personnel Management.

The former Acting Director of the Office of Personnel Management intervened in this

matter. We have taken official notice that Director Kupor now holds the position. See

5 C.F.R. § 1201.64.

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).

BEFORE

Henry J. Kerner, Vice Chairman

James J. Woodruff II, Member

FINAL ORDER

The appellant has filed a petition for review of the initial decision, which

dismissed his appeal without prejudice. Generally, we grant petitions such as this

one only in the following circumstances: the initial decision contains erroneous

findings of material fact; the initial decision is based on an erroneous

interpretation of statute or regulation or the erroneous application of the law to

the facts of the case; the administrative judge’s rulings during either the course of

the appeal or the initial decision were not consistent with required procedures or

involved an abuse of discretion, and the resulting error affected the outcome of

the case; or new and material evidence or legal argument is available that, despite

the petitioner’s due diligence, was not available when the record closed. Title 5

of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115).

After fully considering the filings in this appeal, we conclude that the petitioner

has not established any basis under section 1201.115 for granting the petition for

review. Therefore, we DENY the petition for review, AFFIRM the initial

decision, and FORWARD the matter to the Northeastern Regional Office for

docketing and adjudication as a refiled appeal. 5 C.F.R. § 1201.113(c).

The appellant filed the instant appeal to challenge the reconsideration

decision of the Office of Personnel Management (OPM), which concerned the

apportionment of his supplemental annuity for purposes of a divorce decree and

an associated overpayment. Initial Appeal File (IAF), Tab 1. OPM’s

reconsideration decision relied on 5 U.S.C. § 8421(c) to find that OPM “must

include [his Federal Employees’ Retirement System (FERS)] annuity supplement

in the computation of the court-ordered division of [his] FERS annuity.” Id.

at 10. The appellant disagreed, arguing that division of his annuity supplement

was not expressly provided for in his divorce decree, so it should not be included

in the apportionment of his annuity. Id. at 6.

The administrative judge developed the record and held a hearing. While

doing so, the parties recognized two other cases where other administrative

judges reached opposite legal conclusions about the same legal question

presented in this appeal—whether OPM is properly interpreting and applying

section 8421(c). IAF, Tabs 14-16 (referencing Kuebbeler v. Office of Personnel

Management, MSPB Docket No. AT-0843-19-0356-I-1; Moulton v. Office of

Personnel Management, MSPB Docket No. DE-0841-18-0053-I-1). Because

those cases and the underlying issue were pending before the Board, the

administrative judge issued a decision that dismissed the instant appeal without

prejudice. IAF, Tab 17, Initial Decision (ID) at 1-2. He explained that the appeal

could be refiled after the Board or the U.S. Court of Appeals for the Federal

Circuit issued a decision in Kuebbeler or Moulton. ID at 2. Alternatively, the

administrative judge indicated that the appeal would be automatically refiled on a

specified date. Id.

Rather than waiting for his appeal to be refiled, the appellant filed a

petition for review of the decision to dismiss his appeal without prejudice.

Petition for Review (PFR) File, Tab 1. The Director of OPM filed a notice of

intervention in this appeal, to which OPM was already the respondent agency.

PFR File, Tab 5. Then, in a single pleading, OPM and its Director filed a

response to the appellant’s petition. PFR File, Tab 7. The appellant filed a reply.

PFR File, Tab 8. Finally, the Clerk of the Board issued an order that invited the

appellant’s former spouse to intervene, but she did not do so. PFR File, Tab 9.

An administrative judge has wide discretion to control the proceedings

before him and the dismissal without prejudice to refiling is a procedural option

committed to his sound discretion. Gingery v. Department of the Treasury,

111 M.S.P.R. 134, ¶ 9 (2009). A dismissal without prejudice is appropriate when

it is in the interests of fairness, due process, and administrative efficiency. Id.

The Board has held that an administrative judge may order a dismissal without

prejudice at the request of one or both parties, or to avoid a lengthy or indefinite

continuance. Id.

In his petition for review, the appellant asked the Board to consolidate his

case with the Moulton case mentioned above, since both involved the same legal

question—the proper interpretation of section 8421(c). PFR File, Tab 1 at 7-8.

He seemed to suggest that this would allow for the fastest disposition of his

appeal, while also giving him an opportunity to add to existing arguments before

the Board in other cases about this question of law before any precedent is issued

about the same. Id. We decline to exercise our discretion and consolidate this

appeal with Moulton. See 5 C.F.R. § 1201.36(b) (providing that a judge may

consolidate cases if doing so would expedite processing and not adversely affect

the parties’ interests).

While the appellant’s petition in this appeal was pending, we issued a

precedential decision in the Moulton case regarding the proper interpretation of

section 8421(c). Moulton v. Office of Personnel Management, 2023 MSPB 26. In

short, we disagreed with OPM’s interpretation of the statute. Id., ¶¶ 10-21. The

Director of OPM filed a petition for review of the Board’s decision before the

Federal Circuit. Like the Board, the Federal Circuit interpreted 5 U.S.C.

§ 8421(c) “to require OPM to apportion a retiree’s annuity supplement only when

expressly provided for in a court order.” Director of Office of Personnel

Management v. Moulton, 155 F.4th 1331, 1337 (Fed. Cir. 2025) (emphasis in

original). Because the Board has issued a precedential decision addressing the

gravamen of this appeal and the Federal Circuit has affirmed the Board’s

decision, it is now ripe for adjudication. The administrative judge assigned to

this case can best apply the Moulton precedent and any other case 3 that might be

relevant to the particular facts of the appellant and his divorce decree.

The administrative judge’s dismissal of this appeal without prejudice while

awaiting a precedential decision was not an abuse of discretion. It was a proper

exercise of his discretion, under the circumstances.

The remainder of the appellant’s petition—the vast majority of his petition

—consists of arguments and assertions about how section 8421(c) should be

interpreted. PFR File, Tab 1 at 4-7, 9-10. However, those arguments are

irrelevant to the only issue before us at this time, which is whether the

administrative judge abused his discretion in dismissing the appeal without

prejudice. Gingery, 111 M.S.P.R. 134, ¶ 11. Therefore, we will not consider

them further.

This is the final decision of the Board on the appellant’s petition for review

of the February 7, 2020 initial decision to dismiss his appeal without prejudice. 4

We FORWARD the appeal to the Northeastern Regional Office for docketing and

adjudication as a refiled appeal. 5

Although we ruled on the proper interpretation of section 8421(c) in Moulton, we did

not do so in the Kuebbeler case also referenced by the parties during the proceedings

below. The Kuebbeler case came to a close when we granted that appellant’s request to

withdraw his petition for review. Kuebbeler v. Office of Personnel Management, MSPB

Docket No. AT-0843-19-0356-I-1, Petition for Review File, Tabs 11-12. Separately,

the parties were likely aware of another case that was working its way through Federal

courts involving the proper interpretation of section 8421(c) while the instant appeal

was pending on review. That case also came to a close without answering the question

of how to interpret section 8421(c) because the U.S. Court of Appeals for the District of

Columbia found that a district court that had ruled on the matter lacked jurisdiction.

Federal Law Enforcement Officers Association v. Ahuja, 62 F.4th 551 (D.C. Cir. 2023).

The appeal was refiled automatically shortly after the Board issued its decision in

Moulton. However, the administrative judge dismissed the refiled appeal for reasons of

adjudicatory efficiency as premature, citing the pending petition for review before the

Federal Circtuit. Young v. Office of Personnel Management, MSPB Docket No.

PH-831M-19-0459-I-2, Initial Decision (Feb. 6, 2024). Neither party filed a petition for

review of that initial decision.

The Board’s decision in Moulton articulated the legal principles applicable to the

interpretation of the appellant’s divorce decree and the distribution of marital property.

NOTICE OF APPEAL RIGHTS 6

You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By

statute, the nature of your claims determines the time limit for seeking such

review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).

Although we offer the following summary of available appeal rights, the Merit

Systems Protection Board does not provide legal advice on which option is most

appropriate for your situation and the rights described below do not represent a

statement of how courts will rule regarding which cases fall within their

jurisdiction. If you wish to seek review of this final decision, you should

immediately review the law applicable to your claims and carefully follow all

filing time limits and requirements. Failure to file within the applicable time

limit may result in the dismissal of your case by your chosen forum.

Please read carefully each of the three main possible choices of review

below to decide which one applies to your particular case. If you have questions

about whether a particular forum is the appropriate one to review your case, you

should contact that forum for more information.

(1) Judicial review in general . As a general rule, an appellant seeking

judicial review of a final Board order must file a petition for review with the U.S.

Court of Appeals for the Federal Circuit, which must be received by the court

within 60 calendar days of the date of issuance of this decision. 5 U.S.C.

§ 7703(b)(1)(A).

If you submit a petition for review to the U.S. Court of Appeals for the

Federal Circuit, you must submit your petition to the court at the

following address:

As such, adjudication of the forwarded appeal will impact the appellant’s former

spouse. Accordingly, the administrative judge should afford the appellant’s former

spouse another opportunity to intervene in this matter. 5 C.F.R. § 1201.34(a), (c).

Since the issuance of the initial decision in this matter, the Board may have updated

the notice of review rights included in final decisions. As indicated in the notice, the

Board cannot advise which option is most appropriate in any matter.

U.S. Court of Appeals

for the Federal Circuit

717 Madison Place, N.W.

Washington, D.C. 20439

Additional information about the U.S. Court of Appeals for the Federal

Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular

relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is

contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.

If you are interested in securing pro bono representation for an appeal to

the U.S. Court of Appeals for the Federal Circuit, you may visit our website at

http://www.mspb.gov/probono for information regarding pro bono representation

for Merit Systems Protection Board appellants before the Federal Circuit. The

Board neither endorses the services provided by any attorney nor warrants that

any attorney will accept representation in a given case.

(2) Judicial or EEOC review of cases involving a claim of

discrimination . This option applies to you only if you have claimed that you

were affected by an action that is appealable to the Board and that such action

was based, in whole or in part, on unlawful discrimination. If so, you may obtain

judicial review of this decision—including a disposition of your discrimination

claims —by filing a civil action with an appropriate U.S. district court ( not the

U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you

receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems

Protection Board, 582 U.S. 420 (2017). If you have a representative in this case,

and your representative receives this decision before you do, then you must file

with the district court no later than 30 calendar days after your representative

receives this decision. If the action involves a claim of discrimination based on

race, color, religion, sex, national origin, or a disabling condition, you may be

entitled to representation by a court-appointed lawyer and to waiver of any

requirement of prepayment of fees, costs, or other security. See 42 U.S.C.

§ 2000e-5(f) and 29 U.S.C. § 794a.

Contact information for U.S. district courts can be found at their respective

websites, which can be accessed through the link below:

http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .

Alternatively, you may request review by the Equal Employment

Opportunity Commission (EEOC) of your discrimination claims only, excluding

all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the

EEOC’s Office of Federal Operations within 30 calendar days after you receive

this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,

and your representative receives this decision before you do, then you must file

with the EEOC no later than 30 calendar days after your representative receives

this decision.

If you submit a request for review to the EEOC by regular U.S. mail, the

address of the EEOC is:

Office of Federal Operations

Equal Employment Opportunity Commission

P.O. Box 77960

Washington, D.C. 20013

If you submit a request for review to the EEOC via commercial delivery or

by a method requiring a signature, it must be addressed to:

Office of Federal Operations

Equal Employment Opportunity Commission

131 M Street, N.E.

Suite 5SW12G

Washington, D.C. 20507

(3) Judicial review pursuant to the Whistleblower Protection

Enhancement Act of 2012 . This option applies to you only if you have raised

claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or

other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).

If so, and your judicial petition for review “raises no challenge to the Board’s

disposition of allegations of a prohibited personnel practice described in

section 2302(b) other than practices described in section 2302(b)(8), or

2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial

review either with the U.S. Court of Appeals for the Federal Circuit or any court

of appeals of competent jurisdiction. 7 The court of appeals must receive your

petition for review within 60 days of the date of issuance of this decision.

5 U.S.C. § 7703(b)(1)(B).

If you submit a petition for judicial review to the U.S. Court of Appeals for

the Federal Circuit, you must submit your petition to the court at the