The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
CHARLES P. HOLLY, DOCKET NUMBER
Appellant, DC-0843-15-0151-I-1
v.
OFFICE OF PERSONNEL DATE: May 6, 2015
MANAGEMENT,
Agency.
THIS FINAL ORDER IS NO NPRECEDENTIAL 1
Charles P. Holly, Severn, Maryland, pro se.
Karla W. Yeakle, 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 for lack of jurisdiction his appeal in which he challenged the Office of
Personnel Management (OPM)’s calculations related to his annuity. Generally,
we grant petitions such as this one only when: the initial decision contains
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
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 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 appellant, formerly a federal employee, and his wife divorced in 1999.
The divorce decree incorporated the terms of a property settlement in which the
appellant irrevocably assigned to his wife a pro rata share of his unreduced
annuity upon his retirement. The property settlement also provided that the
appellant would take all necessary steps to elect his wife as the designated
beneficiary for purposes of establishing and sustaining survivor spouse coverage
for her and that, in the event she elected such rights, she would exclusively bear
their cost by way of a reduced benefit to her. After the appellant retired, his
former wife determined that she did not want the survivor annuity inasmuch as
the cost of it was too high, and she notified OPM of her wishes, requesting to
waive the benefit. OPM disallowed her request, but, on appeal, an administrative
judge reversed OPM’s decision. On OPM’s petition for review of that decision,
the Board affirmed the administrative judge’s decision, modifying its analysis but
still finding that the appellant’s former wife was entitled to waive her entitlement
to the survivor annuity. Holly v. Office of Personnel Management, 121 M.S.P.R.
134, ¶¶ 8-14 (2014). The Board ordered OPM to grant the former wife’s request
3
for a waiver of the former spouse survivor annuity, to immediately cease its
reductions of monies withheld from her monthly annuity payments, and to
reimburse her for all prior reductions taken from her monthly apportioned annuity
payments. Id., ¶ 15.
¶3 Months after the Board issued that Opinion and Order, the appellant filed a
Motion for Status as a Permissive Intervenor under 5 C.F.R. § 1201.34. Initial
Appeal File (IAF), Tab 1. Therein he argued that his interests had been affected
by what he described as OPM’s failure to enforce the Board’s Order. He
acknowledged that OPM, in fact, had stopped withholding the monies from his
former wife’s annuity but argued that it was now withholding that sum from his
annuity. Id. at 2. He asked that his intervenor motion be granted so that he could
seek enforcement of the Board’s order, id. at 3, and he submitted a pleading that
he characterized as a petition for enforcement, id. at 4-10. In this pleading, the
appellant asked that the Board direct OPM to stop withholding the monies from
his annuity and to reimburse him for what he alleged were improper withholdings
over the past 6 months. Id. at 5. He also explained that he had elected a survivor
annuity for his current spouse but that they had not been notified of the “change
in entitlement,” id. at 5 n.1, and had not observed an appropriate deduction in his
annuity for that benefit, id. at 14. The appellant acknowledged that he had not
filed his pleading within 30 days of the date of the Board’s decision but claimed
that he was never notified of that decision. Id. at 5.
¶4 The administrative judge treated the appellant’s submission as a new appeal
and assigned it a different docket number than the one assigned to the appeal of
the appellant’s former wife. In response to the appeal, the administrative judge
issued an Order to Show Cause, id., Tab 3, wherein she first addressed the
appellant’s motion to intervene in his former wife’s appeal, explaining that,
because the Board had issued a final decision in that case, there was no longer
any proceeding pending before the Board in which the appellant could intervene,
id. at 1-2; see 5 C.F.R. § 1201.34(a). The administrative judge acknowledged
4
that the appellant could file his own appeal of a final decision issued by OPM
regarding his annuity but that it did not appear that such a decision had been
issued. IAF, Tab 3 at 2. The administrative judge ordered the appellant to file
evidence and argument to show that his appeal was within the Board’s
jurisdiction, id., but he did not respond.
¶5 The administrative judge dismissed the appellant’s appeal for lack of
jurisdiction, finding that he presented no evidence or argument that OPM has
issued a final or reconsideration decision in the matter about which he
complained. Id., Tab 6, Initial Decision at 2-3.
¶6 The appellant has filed a petition for review, Petition for Review (PFR)
File, Tab 1, to which the agency has responded in opposition, id., Tab 3.
¶7 The administrative judge correctly found that the Board has jurisdiction
over an OPM determination affecting an individual’s rights or interests under a
retirement system only after OPM has issued a final or reconsideration decision.
ID at 2; see Tatum v. Office of Personnel Management, 82 M.S.P.R. 96, ¶ 17
(1999); 5 C.F.R. § 831.110. The appellant acknowledges that there is no OPM
decision “in [his] name.” PFR File, Tab 3 at 5. As OPM explained below, and
reiterates in its response to his petition for review, it is in the process of taking
appropriate action to make necessary adjustments to the appellant’s annuity, and,
when those actions are complete, it will provide him with a written decision
explaining its calculations from which he can request reconsideration. IAF, Tab
5; PFR File, Tab 3 at 5. Upon his receipt of a reconsideration decision, the
appellant, if dissatisfied, may file an appeal with the Board. 5 C.F.R. § 831.110.
¶8 On review, the appellant argues that, notwithstanding the Board’s Opinion
and Order in his former wife’s appeal, the agency still names her, and not his
current wife, as the beneficiary of his survivor annuity. PFR File, Tab 1 at 5. He
has submitted a December 17, 2014 annuity statement, which appears to support
his claim. Id. at 8. However, while the proffered evidence may be new, it is not
material to the dispositive jurisdictional issue in this case, and we have therefore
5
not considered it. 2 Russo v. Veterans Administration, 3 M.S.P.R. 345, 349
(1980).
¶9 The appellant also argues that the administrative judge erred in not granting
him intervenor status regarding his former wife’s appeal. PFR File, Tab 1 at 4.
The appellant failed to challenge before the administrative judge in this appeal
her ruling denying his request for such status. His failure to object to that ruling
below precludes him from challenging it on review. 3 See Miller v. U.S. Postal
Service, 117 M.S.P.R. 557, ¶ 7 (2012).
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).
2
In response to the appellant’s petition for review, the agency has submitted a current
copy of its “Master Record Print Out” listing the appellant’s current wife as the
beneficiary of his survivor annuity. PFR File, Tab 3 at 4-6.
3
In any event, we fail to see how the appellant was directly affected by the outcome of
the proceeding which formed the basis of Holly v. Office of Personnel Management,
121 M.S.P.R. 134 (2014), inasmuch as that decision directed OPM to make specific
adjustments only to the appellant’s former wife’s annuity.
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
information regarding pro bono representation for Merit Systems Protection
Board appellants before the Federal Circuit. 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.