The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
MARTIN F. SALAZAR, DOCKET NUMBER
Appellant, AT-0842-14-0765-I-1
v.
OFFICE OF PERSONNEL DATE: April 23, 2015
MANAGEMENT,
Agency.
THIS FINAL ORDER IS NO NPRECEDENTIAL *
Martin F. Salazar, Grovetown, Georgia, pro se.
Christopher H. Ziebarth, Washington, D.C., for the agency.
BEFORE
Susan Tsui Grundmann, 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A nonprecedential order is one that the Board has determined does not add
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 Parties may cite nonprecedential orders,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).
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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 In early 2014, the appellant filed an application for a deferred retirement
annuity. Initial Appeal File (IAF), Tab 6 at 4. On June 20, 2014, he filed a
Board appeal in which he asserted that the Office of Personnel Management
(OPM) had failed to act on his application. IAF, Tab 1. Because it appeared that
OPM had not issued a final decision on the appellant’s retirement application, the
administrative judge issued a show-cause order in which he informed the
appellant that the Board may lack jurisdiction over his appeal and directed the
appellant to file evidence and argument establishing the Board’s jurisdiction.
IAF, Tab 7. After considering the parties’ submissions, the administrative judge
dismissed the appeal for lack of jurisdiction on the basis that OPM had not issued
a final decision. IAF, Tab 17, Initial Decision (ID). The appellant petitions for
review. Petition for Review (PFR) File, Tabs 1-2.
¶3 If OPM has not issued a final decision on an appellant’s entitlement to a
retirement benefit, the Board generally lacks jurisdiction over an appeal of that
matter. See, e.g., Fletcher v. Office of Personnel Management, 118 M.S.P.R. 632,
¶ 5 (2012). However, the Board may take jurisdiction over a retirement appeal in
the absence of a final decision if the appellant has made repeated requests for a
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final decision and the evidence indicates that OPM does not intend to issue a final
decision. Id.
¶4 In response to the administrative judge’s acknowledgment order, OPM
asserted that it was “unable to locate” a final decision in the appellant’s case.
IAF, Tab 6 at 4. OPM also explained that the appellant’s original retirement
application was inadequate and that it would send him a detailed explanation of
how he could perfect his application “[i]n the immediate future.” Id.
¶5 The appellant contends on review that this statement is inadequate to
support a conclusion that OPM intends to issue a final decision. See PFR File,
Tab 1 at 5, 8. However, the appellant has the burden of proving jurisdiction over
his appeal. See, e.g., Reid v. Office of Personnel Management, 120 M.S.P.R. 83,
¶ 6 (2013). Therefore it is his burden to prove that OPM has either issued an
appealable decision or that OPM does not intend to issue an appealable decision.
OPM is not required to prove that it has issued an appealable decision or that it
intends to issue an appealable decision. Therefore, the administrative judge
correctly found that the appellant failed to show that OPM has made either an
actual or constructive decision on his retirement application. ID at 3-4. Thus, the
administrative judge properly found that the Board lacks jurisdiction over this
appeal.
¶6 The appellant contends on review that the administrative judge was biased
against him, erred by failing to grant his motion to disqualify, and erred by not
applying the substantial evidence burden of proof. PFR File, Tab 1 at 9-11. The
bases for the appellant’s bias claim are that the administrative judge raised the
issue of jurisdiction sua sponte, and the administrative judge contacted him ex
parte to see if the appellant would withdraw the appeal until OPM issued an
appealable decision. Id. at 9-10; see IAF, Tab 15 at 6-7. The issue of jurisdiction
is always before the Board and may be raised at any time during a proceeding.
Morgan v. Department of the Navy, 28 M.S.P.R. 477, 478 (1985). It is incumbent
on the administrative judge to address jurisdiction sua sponte if there is reason to
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believe that jurisdiction might be an issue in the appeal. See Stephen v.
Department of the Air Force, 47 M.S.P.R. 672, 678 (1991). Therefore, it was
entirely appropriate for the administrative judge to raise the issue of jurisdiction
sua sponte. Moreover, the administrative judge did not engage in an improper ex
parte communication when he contacted the appellant about a procedural matter,
see 5 C.F.R. §§ 1201.101(a), 102, and OPM waived the prohibition against ex
parte communications in any event, IAF, Tab 6 at 4. Further, the preponderant
evidence standard applies in this case and the administrative judge was correct to
employ it. 5 U.S.C. § 7701(c)(1)(B).
¶7 The remainder of the appellant’s petition for review argues extensively that
the administrative judge erred by ruling against him on his various motions filed
below. IAF, Tabs 4, 8, 10, 12, 14, Tab 15 at 7-10. We have considered the
appellant’s arguments and find, based on our review of the record, that they are
without merit. The administrative judge explained the basis for his denial of the
appellant’s motions in some detail, see IAF, Tabs 7, 9, 11, 13; ID at 2-3 n.1, and
the appellant has not shown that the administrative judge abused his discretion in
any of these rulings.
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
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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 providin g 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.