The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
WALTER E. HYDE, DOCKET NUMBER
Appellant, DA-0845-14-0491-I-1
v.
OFFICE OF PERSONNEL DATE: February 10, 2015
MANAGEMENT,
Agency.
THIS FINAL ORDER IS NO NPRECEDENTIAL 1
Walter E. Hyde, Killeen, Texas, pro se.
Karla W. Yeakle, 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 for lack of jurisdiction his appeal of a reconsideration decision issued
by the Office of Personnel Management (OPM). Generally, we grant petitions
such as this one only when: the initial decision contains erroneous findings of
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
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 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 administrative judge dismissed this appeal for lack of jurisdiction
because OPM rescinded the reconsideration decision that was the subject of this
appeal, and the appellant failed to respond to the administrative judge’s order to
show cause why the case should not be dismissed. Initial Appeal File (IAF), Tab
10 at 4, Tab 11, Tab 12, Initial Decision (ID) at 2. The appellant has filed a
petition for review of the initial decision, arguing the merits of his appeal without
addressing the issue of jurisdiction before the Board. Petition for Review (PFR)
File, Tab 1. OPM has responded in opposition to the appellant’s petition. PFR
File, Tab 4.
¶3 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). The Board generally
has jurisdiction to adjudicate an individual’s rights and interests under the Civil
Service Retirement System only after OPM has rendered a final or
reconsideration decision on the issue in question. See 5 U.S.C. §
8347(d)(1); 5 C.F.R. § 831.110. However, the Board may assume jurisdiction
3
under particular circumstances if OPM has failed to render a final decision or
improperly denied the individual an opportunity for reconsideration. A “final
decision” is a decision OPM issues after a request for reconsideration of an initial
decision, or a decision OPM designates as final. See 5 C.F.R. § 831.109(f). In
either case, the decision should set forth the individual’s Board appeal rights. See
id. The appellant has the burden of proving jurisdiction by preponderant
evidence. See 5 C.F.R. § 1201.56(a)(2).
¶4 In this case, the administrative judge dismissed the appeal because OPM
rescinded its reconsideration decision. ID at 2. We note that, in the letter
rescinding the reconsideration decision, OPM agreed to issue a new final decision
addressing the appellant’s concerns and provide new appeal rights. IAF, Tab 10
at 4. On review, the appellant submits no evidence or argument indicating that
OPM has completed its proceedings and issued a final decision or a new
reconsideration decision with appeal rights. Moreover, he does not dispute that
OPM rescinded its May 19, 2014 reconsideration decision, which divested the
Board of jurisdiction over this appeal. See Tamayo v. Office of Personnel
Management, 56 M.S.P.R. 620, 622 (1993). Because the appellant has shown no
basis for finding jurisdiction over his appeal, we deny the appellant’s petition for
review.
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
4
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
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.