The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JOSEPH SAMUEL GENUALDI, DOCKET NUMBER
Appellant, AT-0831-14-0878-I-1
v.
OFFICE OF PERSONNEL DATE: February 4, 2015
MANAGEMENT,
Agency.
THIS ORDER IS NO NPRECEDENTIAL *
Joseph Samuel Genualdi, Huntsville, Alabama, pro se.
Roxann Johnson, Washington, D.C., for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Anne M. Wagner, Vice Chairman
Mark A. Robbins, Member
REMAND ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed his appeal of the recomputation of his Civil Service Retirement System
(CSRS) annuity for lack of Board jurisdiction. For the reasons discussed below,
we GRANT the appellant’s petition for review, VACATE the initial decision, and
*
A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
REMAND the appeal to the regional office for further adjudication in accordance
with this Order.
¶2 The appellant filed this appeal to contest a July 29, 2014 final decision
issued by the Office of Personnel Management (OPM). See Initial Appeal File
(IAF), Tab 1 at 15-16. OPM recomputed his monthly annuity to eliminate credit
for his post-1956 military service after he failed to make a deposit for that
service. Id. at 15. The appellant acknowledged that he did not make the deposit.
He did not dispute that recomputation of his annuity was appropriate; instead, he
contested the amount by which the annuity had been reduced. See id. at 6-7.
¶3 In a letter to the Board dated August 27, 2014, OPM rescinded its July 29,
2014 final decision. IAF, Tab 4 at 4. The letter also stated that OPM would
allow the appellant to make a deposit for his post-1956 military service, after
which his monthly annuity payment would be readjusted. Id. Citing Rorick v.
Office of Personnel Management, 109 M.S.P.R. 597, ¶6 (2008), the
administrative judge dismissed the appeal as moot “because OPM has indicated
that it will grant the appellant the sole relief he would have been able to obtain
from the Board if his appeal had been adjudicated in his favor (an opportunity to
make a late deposit for his periods of military service).” IAF, Tab 5, Initial
Decision (ID) at 2 (footnote omitted).
¶4 On review, the appellant argues that the administrative judge misconstrued
the issue he raised in the appeal: that the recomputation resulted in a 20 percent
decrease in his monthly annuity payment. Petition for Review (PFR) File, Tab 1
at 2. He explains that he had asked for reconsideration of the amount of the
annuity payment he receives, and he did not contest whether OPM should have
recomputed his annuity. Id. He further explains that he is financially unable to
make a deposit and he simply wants the Board to reconsider the amount by which
his annuity was reduced. Id. at 4.
¶5 The Board may adjudicate an appeal contesting any administrative action or
order affecting the rights or interests of an individual under the CSRS; however,
3
the Board does not acquire jurisdiction until OPM has issued a final decision.
Baniaga v. Office of Personnel Management, 86 M.S.P.R. 207, ¶ 5 (2000);
see 5 U.S.C. § 8347(b), (d)(1); see also 5 C.F.R. §§ 831.109, .110. If OPM
completely rescinds a final or reconsideration decision, the Board generally does
not retain jurisdiction over the appeal in which that decision is at issue, and the
appeal must be dismissed. See Baniaga, 86 M.S.P.R. 207, ¶ 5. The Board
recognizes an exception to this general rule when OPM’s failure to render a
decision effectively prevents an appellant from obtaining adjudication of the
matter he has appealed. Settlers v. Office of Personnel
Management, 108 M.S.P.R. 105, ¶ 9 (2008).
¶6 Here, the exception applies. OPM’s rescission letter did not truly render the
appeal moot because it did not address the appellant’s issue on appeal: whether
the recomputation resulted in an excessive decrease in his monthly annuity
payment. See IAF, Tab 1 at 6-7. The administrative judge acknowledged that the
appeal presented that question, but stated that the appellant’s intention in filing
the appeal seemed “unclear” and suggested that he had not raised the question
with OPM. See ID at 3 n.2. The administrative judge advised the appellant to
notify OPM if he intended to contest the calculation of his annuity and to allow
OPM to issue another decision. Id.
¶7 The record below does not include the appellant’s initial correspondence
with OPM. His appeal form unequivocally stated that his concern was not with
the fact of recomputation but with the amount by which his monthly annuity
payment had been reduced. See IAF, Tab 1 at 6-7. On review, however, the
appellant submitted a copy of his initial correspondence with OPM. His letter
states that he was challenging the amount of the reduction and that he would be
unable to deposit funds to cover his post-1956 military service. PFR File, Tab 1,
Subtab C. OPM’s rescission letter did not address this second issue. See IAF,
Tab 1 at 15-16. The administrative judge thus erred in dismissing his appeal as
moot. Accordingly, we thus consider OPM’s August 27, 2014 rescission letter to
4
be the agency’s “implicit negative reconsideration decision.” See Morin v. Office
of Personnel Management, 107 M.S.P.R. 534, 537-38 (2007) (because OPM’s
rescission letter was silent about the appellant’s issue on reconsideration, it was
an “implicit negative reconsideration decision”), aff’d, 287 F. App’x 864 (Fed.
Cir. 2008). We remand the appeal to the regional office for further development
of the record as needed and a decision on the merits regarding the accuracy of
OPM’s recomputation of the appellant’s monthly annuity payment.
ORDER
For the reasons discussed above, we VACATE the initial decision
REMAND this case to the regional office for further adjudication in accordance
with this Remand Order.
FOR THE BOARD: ______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.