The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
FRANK W. WHITE, DOCKET NUMBER
Appellant, CH-0831-14-0421-I-1
v.
OFFICE OF PERSONNEL DATE: January 29, 2015
MANAGEMENT,
Agency.
THIS FINAL ORDER IS NO NPRECEDENTIAL 1
Frank W. White, Chicago, Illinois, pro se.
Christopher H. Ziebarth, 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
vacated a letter of the Office of Personnel Management (OPM) confirming its
prior denial of the appellant’s application for disability retirement benefits and
remanded the appeal to OPM for issuance of a new decision regarding whether
1
A nonprecedential order is one that the Board has determined does not add
sign ificantly 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 Parties may cite nonprecedential orders,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 appellant is entitled to a $10,000 optional life insurance annuity. 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
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 VACATE the initial decision, dismiss this appeal for
lack of jurisdiction, and FORWARD the appellant’s claim regarding his possible
entitlement to an optional life insurance annuity to OPM.
BACKGROUND
¶2 The appellant filed an appeal of a March 18, 2014 letter from OPM which
informed him that he was not entitled to retirement benefits under the Civil
Service Retirement System (CSRS) based on a prior Board decision. Initial
Appeal File (IAF), Tab 1. In that decision, the Board denied the appellant’s
petition for review of an initial decision that affirmed OPM’s denial of his
application for disability retirement benefits because he failed to establish that he
had the requisite 5 years of creditable civilian service. White v. Office of
Personnel Management, MSPB Docket No. CH-0831-96-0942-I-1, Final Order
at 1 (May 29, 1997); see White v. Office of Personnel Management, MSPB
Docket No. CH-0831-96-0942-I-1, Initial Decision at 4 (Dec. 7, 1996).
¶3 The agency filed a motion to dismiss the appeal as res judicata, asserting
that the appellant had previously litigated the denial of his retirement benefits.
IAF, Tab 6 at 4. According to the administrative judge, during a telephonic status
3
conference, the appellant indicated that he was not appealing the denial of his
disability retirement benefits but rather that his appeal related to his entitlement
to a $10,000 optional insurance annuity. IAF, Tab 10 at 2. The administrative
judge issued an order summarizing the status conference and afforded the
appellant 5 days to object. See id. at 3. In response to the administrative judge’s
order, the appellant submitted two separate corrections to the order in which he
appears to contest his involvement in the prior litigation of the denial of his
application for disability retirement benefits. IAF, Tabs 13-14. In an initial
decision, issued without holding the appellant’s requested hearing, the
administrative judge found that a prerequisite for Board jurisdiction over an
individual’s appeal of a retirement matter is an OPM reconsideration decision.
IAF, Tab 15, Initial Decision (ID) at 3. The administrative judge further found
that OPM had not previously issued a decision on the appellant’s optional
insurance annuity claim, and thus he vacated what he described as OPM’s
March 18, 2014 decision and remanded the matter to OPM for consideration of
the appellant’s claim that he is entitled to a $10,000 optional insurance annuity.
ID at 4.
¶4 The appellant has filed a petition for review in which he asserts that the
initial decision fails to note his correction to the status conference summary, that
the administrative judge failed to order OPM to issue a decision within a certain
time frame, and that OPM’s representative has harassed him. Petition for Review
(PFR) File, Tab 1. The agency has filed a response in opposition to the
appellant’s petition. PFR File, Tab 4. The appellant has filed a reply. 2 PFR File,
Tab 5.
2
After the record closed on review, the appellant requested leave to file an additional
pleading. PFR File, Tab 7; see 5 C.F.R. § 1201.114(k) (the record on review closes on
expiration of the period for filing the reply to the response to the petition for review or
on expiration of the period for filing a response to the cross petition for review,
whichever is later). Once the record closes, no additional evidence or argument will be
accepted unless it is new and material as defined in 5 C.F.R. § 1201.115(d) and the
4
DISCUSSION OF ARGUMENTS ON REVIEW
¶5 An individual whose rights under CSRS are affected by an administrative
action or order may appeal to the Board. 5 U.S.C. §§ 8347(d)(1). The Board
generally has jurisdiction over the appeal, however, only after OPM has issued a
final or reconsideration decision on the matter. Tatum v. Office of Personnel
Management, 82 M.S.P.R. 96, ¶ 7 (1999); 5 C.F.R. §§ 831.110.
¶6 As noted, the appellant indicated that he is not appealing the denial of his
disability retirement benefits; rather, his appeal concerns his entitlement to a
$10,000 optional insurance annuity. IAF, Tab 6 at 8, Tab 10 at 2. OPM,
however, has not issued a decision concerning the appellant’s claim as to that
matter. Further, it does not appear that OPM has refused to issue such a decision
but rather construed his letter as a claim for disability retirement benefits. See
IAF, Tab 6 at 7. In the absence of an OPM reconsideration decision, the Board
lacks jurisdiction over the appellant’s claim for an optional life insurance
annuity. 3
party submitting it shows that the evidence or argument was not readily availab le before
the record closed. 5 C.F.R. § 1201.114(k).
In his motion, the appellant requests leave to submit additional evidence in support of
his claim that OPM’s representative has harassed him. PFR File, Tab 7 at 2. The
appellant, however, has failed to show that the information is new evidence because he
has failed to show it was unavailable before the record closed despite due diligence.
See Grassell v. Department of Transportation, 40 M.S.P.R. 554, 564 (1989) (to
constitute new evidence, the information contained in the documents, not just the
documents themselves, must have been unavailable despite due diligence when the
record closed). Moreover, the appellant has failed to show that such information is
material because he has not shown how this evidence provides a basis for reversing the
in itial decision. See Russo v. Veterans Administration, 3 M.S.P.R. 345, 349 (1980).
Accordingly, we deny the appellant’s motion. In any event, there is nothing improper
in an agency changing its representative before the Board; such a practice is not
uncommon when a petition for review is filed. Furthermore, there is nothing improper
in a representative not having or asserting firsthand knowledge of the facts in an appeal.
3
As part of his remand decision, the administrative judge characterized OPM’s
March 18, 2014 letter as a reconsideration decision and vacated it. ID at 4; see IAF,
Tab 1 at 11. We find, however, that the March 18, 2014 letter, which was not issued in
response to a timely request for reconsideration and did not provide the appellant with
5
¶7 Accordingly, we dismiss this appeal for lack of jurisdiction. We
FORWARD the appellant’s claim regarding his possible entitlement to an
optional life insurance annuity to OPM. 4 This is the final decision of the Merit
Systems Protection Board.
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
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).
notice regarding his right to request an appeal before the Board under 5 C.F.R.
§ 831.110, did not constitute a reconsideration decision by OPM. See 5 C.F.R.
§ 831.109.
4
Although the exact nature of the appellant’s claim is not clear, we note that the Board
lacks jurisdiction to review a decision relating to an annuitant’s insurance coverage.
See 5 U.S.C. § 8715 (providing that the Un ited States Court of Federal Claims or the
Un ited States district courts, not the Board, have jurisdiction over life insurance
benefits paid under the Federal Employees’ Group Life Insurance); see, e.g., Richards
v. Office of Personnel Management, 97 M.S.P.R. 291, ¶ 6 (2004). We make no finding
at this time regarding Board jurisd iction over an appeal from an OPM decision on the
appellant’s optional life insurance annuity claim. See 5 U.S.C. § 1204(h) (stating that
the Board shall not issue advisory opin ions).
6
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.