The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
MICHAEL R. JONES, DOCKET NUMBER
Appellant, SF-0831-14-0651-I-1
v.
OFFICE OF PERSONNEL DATE: January 20, 2015
MANAGEMENT,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL *
Michael R. Jones, Corona, California, pro se.
Roxann Johnson, Washington, D.C., for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Anne M. Wagner, Vice Chairman
Mark A. Robbins, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed his retirement appeal for lack of jurisdiction. Generally, we grant
petitions such as this one only when: the initial decision contains erroneous
findings of material fact; the initial decision is based on an erroneous
*
A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the 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. See 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, and based on the following
points and authorities, 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 and AFFIRM the initial decision, which is now the
Board’s final decision. 5 C.F.R. § 1201.113(b).
¶2 The appellant retired effective August 1, 2013 under the Civil Service
Retirement System (CSRS). Soon thereafter, he questioned whether his
application was being handled properly and he began contacting the Office of
Personnel Management (OPM) to inquire about the nature of his retirement and to
ensure that his annuity was correctly calculated. Eventually, OPM issued a
May 27, 2014 letter containing some information as to how his annuity was
calculated. Initial Appeal File (IAF), Tab 7 at 5. The letter did not contain notice
of the appellant’s right to seek reconsideration before OPM. Id.
¶3 The appellant thereafter filed an appeal before the Board. Because it
appeared that OPM had not issued an appealable final decision, the administrative
judge ordered the appellant to submit evidence and argument establishing the
Board’s jurisdiction over his appeal. IAF, Tab 2 at 2. In response, the appellant
filed notice that he wished to withdraw his appeal, but the administrative judge
denied the appellant’s request to withdraw because it did not reflect an
understanding that withdrawal is an act of finality. IAF, Tab 3, Tab 5, Tab 8 at 2.
The appellant objected to the administrative judge’s ruling and he also argued
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that OPM’s May 27, 2014 letter was not a final decision appealable to the Board.
IAF, Tab 8 at 1-7.
¶4 The administrative judge issued an initial decision on the written record
dismissing the appeal for lack of jurisdiction. Initial Decision (ID) at 4-5. He
found that OPM had not yet issued an appealable decision and that the appellant
had not established that he had rights or interests under the CSRS that were
affected by OPM’s acts. ID at 5.
¶5 The Board generally lacks jurisdiction to hear an appeal of a retirement
matter before OPM has issued a final decision on the matter and, accordingly,
will dismiss the appeal. See Ramirez v. Office of Personnel Management,
114 M.S.P.R. 511, ¶ 7 (2010). The Board has recognized an exception to that
general rule, however, when OPM has failed to render a decision. Id. Dismissal
in such a case could effectively prevent an appellant from obtaining an
adjudication of his claim. Id. The Board therefore will take jurisdiction, even
absent an OPM final decision, when the appellant has repeatedly requested such a
decision and the evidence indicates that OPM does not intend to issue a final
decision. Id.
¶6 This, however, is not such a case. OPM has indicated that it intends to treat
its May 27, 2014 letter as if it were an initial decision and to issue a
reconsideration decision on the appellant’s case. IAF, Tab 7 at 4. OPM’s
representation that it intends to issue a final decision weighs significantly against
a finding of jurisdiction. See Okello v. Office of Personnel Management,
120 M.S.P.R. 498, ¶ 15 (2014). The appellant may have repeatedly contacted
OPM to request answers to his questions, but the Board has found that it lacks
jurisdiction based on OPM’s failure to issue a final decision for much longer
delays than exist in this case. See Hasanadka v. Office of Personnel
Management, 116 M.S.P.R. 636, ¶¶ 20-22 (2011). Moreover, because the Board
lacks jurisdiction over this appeal, it lacks jurisdiction to consider the appellant’s
arguments concerning the merits of his claim, the procedures employed by the
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regional office, or the administrative judge’s failure to sanction OPM for
submitting its file properly. Under the circumstances, we find that the
administrative judge correctly dismissed this appeal for lack of jurisdiction.
¶7 On review, the appellant continues to object to the administrative judge’s
refusal to allow him to withdraw his appeal. Petition for Review File, Tab 1
at 7-9. Because the appellant intended to withdraw his appeal without prejudice
to refiling, the administrative judge correctly denied his request. The Board will
not honor a request to withdraw an appeal unless it is clear, unequivocal, and
decisive and reflects an understanding that withdrawal is an act of finality, i.e., a
dismissal with prejudice, and the appellant’s request to withdraw his appeal
clearly did not meet this standard. See Cason v. Department of the Army,
118 M.S.P.R. 58, ¶ 5 (2012). The appellant retains the right to file a new appeal
concerning these matters once an appealable action has occurred, that is, once
OPM has issued a final decision on his case or has indicated that it does not
intend to issue a final decision.
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
You have the right to request review of this final decision by the United
States Court of Appeals for the Federal Circuit. You must submit your request to
the court at the following address:
United States Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, DC 20439
The court must receive your request for review no later than 60 calendar
days after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec.
27, 2012). If you choose to file, be very careful to file on time. The court has
held that normally it does not have the authority to waive this statutory deadline
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and that filings that do not comply with the deadline must be dismissed. See
Pinat v. Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).
If you need further information about your right to appeal this decision to
court, you should refer to the federal law that gives you this right. It is found in
Title 5 of the United States Code, section 7703 (5 U.S.C. § 7703) (as rev. eff.
Dec. 27, 2012). You may read this law as well as other sections of the United
States Code, at our website, http://www.mspb.gov/appeals/uscode.htm.
Additional information 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, and 11.
If you are interested in securing pro bono representation for your court
appeal, you may visit our website at http://www.mspb.gov/probono for a list of
attorneys who have expressed interest in providing pro bono representation for
Merit Systems Protection Board appellants before the court. The Merit Systems
Protection Board neither endorses the services provided by any attorney nor
warrants that any attorney will accept representation in a given case.
FOR THE BOARD: ______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.