The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
BARRY J. GARNER, DOCKET NUMBER
Appellant, DE-0842-14-0476-I-1
v.
DEPARTMENT OF THE ARMY, DATE: February 5, 2015
Agency.
THIS FINAL ORDER IS NO NPRECEDENTIAL 1
Janice L. Jackson, Leavenworth, Kansas, for the appellant.
Anne E. Hinkebein, Esquire, Fort Leavenworth, Kansas, 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 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 interpretation of statute or
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
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. Except as
expressly modified by this Final Order, we AFFIRM the initial decision.
BACKGROUND
¶2 Effective April 7, 2001, the appellant resigned from his law enforcement
officer (LEO) position as a GS-11 Regulatory Supervisory Specialist with the
Department of Justice’s Bureau of Prisons (BOP) after approximately 16 years of
service. 2 IAF, Tab 7 at 63. On October 12, 2010, the appellant was appointed to
a secondary LEO position as a GS-12 Regulatory Supervisory Specialist with the
agency’s Military Correctional Complex (MCC) in Fort Leavenworth, Texas. Id.
at 35, 40.
¶3 On or before May 1, 2014, the appellant contacted the agency’s Army
Benefits Center (ABC) and inquired about a potential retirement date of
January 31, 2015, under LEO special retirement coverage. See IAF, Tab 7 at 34;
see also 5 U.S.C. § 8412(d) (establishing special retirement eligibility for LEOs
under the Federal Employees Retirement System). By email dated May 1, 2014,
2
The “Service History Detail” for the appellant indicates that he was employed by BOP
from September 2, 1984, to January 15, 1985, and from December 8, 1985, until h is
April 7, 2001 resignation. Initial Appeal File (IAF), Tab 11 at 15. The Standard Form
50 documenting the appellant’s resignation identifies his service computation date as
July 24, 1985. IAF, Tab 7 at 63.
3
an ABC Human Resources (HR) Specialist informed the appellant that he was
ineligible to retire on January 31, 2015. IAF, Tab 1 at 33-34. On May 28, 2014,
the appellant sent an email to an HR Specialist in Fort Leavenworth’s Civilian
Personnel Advisory Center (CPAC) seeking assistance concerning his “retirement
problem.” Id. at 31. In response, the CPAC HR Specialist sent the appellant an
email on May 30, 2014, informing him that, due to his break in service of greater
than 3 days, he was not eligible to retire under LEO special retirement coverage
in January 2015. Id. at 29-30; see 5 C.F.R. § 842.803(b).
¶4 During June 2014, the appellant communicated with the CPAC HR
Specialist and the MCC’s Resource Manager via email concerning his eligibility
for LEO special retirement coverage. See IAF, Tab 1 at 21-29. By email dated
June 19, 2014, the Resource Manager notified the appellant that he was ineligible
for LEO special retirement coverage because of the break in service between his
position with BOP and his current position. Id. at 22-23.
¶5 On July 15, 2014, the appellant filed a Board appeal and requested a
hearing, alleging that the agency had improperly denied his request for LEO
special retirement coverage. IAF, Tab 1 at 2-3. The administrative judge issued
a show cause order in which he stated that the Board might not have jurisdiction
over this appeal because it appeared that the agency had not issued a final
decision denying the appellant’s request for LEO service credit. 3 IAF, Tab 8 at 2.
3
In the show cause order, the administrative judge indicated that the relevant regulation
for purposes of determining the Board’s jurisdiction over this appeal is 5 C.F.R.
§ 842.807(a), which pertains to the denial of an employee’s request for approval of a
position as a secondary position. See IAF, Tab 8 at 2. It is undisputed, however, that
the appellant’s position is a secondary LEO position. See IAF, Tab 7 at 40. The
appellant is alleging that the agency improperly denied him LEO special retirement
coverage due to his failure to satisfy the conditions in 5 C.F.R. § 842.803(b) as a result
of his break in service. See IAF, Tab 1 at 9. Consequently, as the administrative judge
made clear in the initial decision, the Board’s jurisdiction in th is appeal is governed by
5 C.F.R. § 842.807(b), which pertains to the denial of LEO special retirement coverage
to an individual serving in an approved secondary LEO position because of his failure
to meet the conditions in 5 C.F.R. § 842.803(b). See IAF, Tab 12, Initial Decision (ID)
at 2.
4
Accordingly, the administrative judge directed the appellant to submit evidence
and argument to show that the Board has jurisdiction over his appeal. Id. In
response, the appellant asserted that the Board has jurisdiction over this appeal
based on the May 30, 2014 email from the CPAC HR Specialist informing him
that he was not eligible for LEO special retirement coverage because of his break
in service. IAF, Tab 11; see IAF, Tab 1 at 29-30.
¶6 Without holding the requested hearing, the administrative judge issued an
initial decision dismissing the appeal for lack of jurisdiction. ID at 1, 3. The
administrative judge found that nothing in the record constitutes a final decision
by the agency concerning the appellant’s special retirement coverage, and that the
Board therefore lacks jurisdiction over this appeal. ID at 3. The administrative
judge stated that the dismissal of the appeal was without prejudice to refiling
once the appellant receives a final agency decision on his request for LEO
retirement coverage or, alternatively, if the agency refuses to issue such a
decision. ID at 3 (citing Scott v. Department of the Treasury, 71 M.S.P.R. 42,
46-47 (1996)).
¶7 The appellant has filed a petition for review. Petition for Review (PFR)
File, Tab 1. The agency has filed a response in opposition to the petition for
review. PFR File, Tab 3.
ANALYSIS
¶8 The Board’s jurisdiction is not plenary; it is limited to those 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). As previously noted,
5 C.F.R. § 842.807(b) affords the Board jurisdiction over “[t]he final decision of
an agency head denying an individual [LEO special retirement] coverage while
serving in an approved secondary position because of failure to meet the
conditions in section 842.803(b) . . . .”
5
¶9 Based on our review of the record, we agree with the administrative judge
that the record does not contain a final decision by the agency regarding the
appellant’s request for LEO special retirement coverage. See ID at 2. Although
the record includes emails from various agency employees informing the
appellant that he is not eligible for LEO special retirement coverage, none of
those emails can be properly characterized as a final decision so as to provide the
Board with jurisdiction over this appeal pursuant to 5 C.F.R. § 842.807(b). See
IAF, Tab 1 at 20-23, 29-30, 33-34.
¶10 On review, the appellant argues for the first time that the following
statement in the agency’s August 14, 2014 response to his appeal constitutes a
“final decision” so as to provide the Board with jurisdiction over this appeal:
“The Agency’s interpretation that Appellant is not eligible for retirement on
January 31, 2015[,] and further that he is not eligible for special retirement
coverage is correct.” PFR File, Tab 1 at 3; see IAF, Tab 7 at 8.
¶11 We find the appellant’s argument unpersuasive. The appellant does not cite
any authority, nor do we know of any, to support his apparent contention that
arguments made by an agency representative in response to an appeal qualify as a
final decision under 5 C.F.R. § 842.807(b). Therefore, this argument provides no
basis for disturbing the administrative judge’s finding that the Board lacks
jurisdiction over this appeal. 4
¶12 As noted above, rather than dismissing this appeal outright, the
administrative judge dismissed the appeal without prejudice to refiling. ID at 3.
An administrative judge has wide discretion to control the proceedings before him
and the dismissal of an appeal without prejudice to refiling is a procedural option
committed to his sound discretion. Argabright v. Department of Defense,
113 M.S.P.R. 152, ¶ 6 (2010); Selig v. Department of the Army, 102 M.S.P.R.
4
We do not address the appellant’s remaining arguments on review, which pertain to
the merits of his appeal and are immaterial to the dispositive jurisdictional issue. See
PFR File, Tab 1 at 2-3, 4.
6
189, ¶ 6 (2006). Nevertheless, an administrative judge must exercise his
discretion in a manner consistent with Board policy, including the Board’s policy
that cases be adjudicated expeditiously. See Schulte v. Department of the Air
Force, 100 M.S.P.R. 141, ¶ 5 (2005). The Board has held that when an
administrative judge dismisses a case without prejudice, he must set a date certain
for refiling, rather than leaving the refiling date open or ambiguous. Thomas v.
Department of the Treasury, 115 M.S.P.R. 224, ¶ 6 (2010).
¶13 Here, the administrative judge did not set a date certain for refiling the
appeal, opting instead to dismiss the appeal without prejudice to refiling once the
appellant receives a final agency decision on his request for LEO special
retirement coverage or if the agency refuses to issue such a decision. ID at 3.
Accordingly, we affirm the initial decision as modified and dismiss the appeal
without prejudice to refile by the appellant 90 days after the date of this
Nonprecedential Final Order, or within 30 days of the date of the appellant’s
receipt of a final agency decision regarding the appellant’s request for LEO
special retirement coverage, whichever date occurs earlier. See, e.g., Selig,
102 M.S.P.R. 189, ¶ 8 (modifying the initial decision to allow the appellant to
refile his appeal within 120 days of the date of the Opinion and Order or within
30 days of the date of issuance of the final decisions regarding his application for
benefits, whichever date occurs earlier). In the event that the agency has already
issued a final decision and the appellant has received that decision, the appellant
must refile his appeal within 30 days of the date of this Nonprecedential Final
Order.
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:
7
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).
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
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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.