The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
CHARLES HOUSER, DOCKET NUMBER
Appellant, NY-3443-15-0059-I-1
v.
DEPARTMENT OF HOMELAND DATE: June 15, 2015
SECURITY,
Agency.
THIS FINAL ORDER IS NO NPRECEDENTIAL 1
Charles Houser, Charles Town, West Virginia, pro se.
Jill M. Skretny, Esquire, Buffalo, New York, 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 appeal of his former agency’s debt collection action 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
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
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, a retired federal employee, filed an appeal alleging that his
former agency erroneously asserted that he had an overpayment and that the
National Finance Center was attempting to collect the debt “with the US treasury
who has imposed penalties bringing the erroneous amount to $9,797.65.” Initial
Appeal File (IAF), Tab 1 at 5. The appellant argued that he does not owe his
former agency any money and that the agency actually owes him money “due to
obstruction of [Office of Workers’ Compensation Programs (OWCP)] benefits for
which [he has] an accepted claim.” Id. The appellant also mentioned that he has
another appeal before the Board. 2 Id.
¶3 The administrative judge set forth the applicable jurisdictional criteria and
informed the appellant that his appeal raised an issue of jurisdiction because he
did not claim that the Office of Personnel Management (OPM) was involved in
2
The appellant filed an involuntary resignation appeal and the administrative judge
dismissed that appeal at the appellant’s request, without prejudice to refiling. See
MSPB Docket No. NY-0752-14-0224-I-1, Initial Decision (Jan. 12, 2015). The
appellant refiled his appeal on April 1, 2014, and the administrative judge suspended
case processing on May 5, 2015, with processing set to have resumed on June 4, 2015.
See MSPB Docket No. NY-0752-14-0224-I-2, Refiled Appeal File (RAF), Tabs 1, 7.
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collecting the debt. IAF, Tab 3 at 1-2. The administrative judge ordered the
appellant to file evidence and argument to meet his burden of proving that the
Board has jurisdiction over his appeal. Id. The appellant failed to respond to the
order. Id. at 2. The agency argued that the appellant appeared to be disputing an
OWCP matter, which is “solely within the purview of the Department of Labor
(DOL),” and that the appellant failed to submit any evidence establishing the
Board’s jurisdiction. IAF, Tab 8 at 10, 13.
¶4 The administrative judge issued an initial decision dismissing the appeal for
lack of jurisdiction. IAF, Tab 9, Initial Decision (ID). The administrative judge
found that, pursuant to 5 U.S.C. § 8128(b), the Secretary of Labor has exclusive
jurisdiction to review the appellant’s entitlement to, or any unresolved claims for,
OWCP benefits. ID at 3. The administrative judge further found that, although
the Board can review certain OPM determinations in retirement-related matters,
including whether OPM complied with its own regulations for collecting
overpayment debts by administrative offset against money due to the debtor from
the Federal Employees’ Retirement System, the appellant did not claim any
involvement by OPM. ID at 4-5.
¶5 The appellant has filed a petition for review of the initial decision
reasserting the arguments he made on appeal and claiming, for the first time on
review, that OPM was involved in the collection action. Petition for Review
(PFR) File, Tab 1 at 6. The agency has filed a response in opposition to his
petition, and the appellant has replied. PFR File, Tabs 2, 4.
¶6 No law, rule, or regulation grants the Board jurisdiction over a
debt-collection action, except in the context of the recovery of an overpayment in
retirement benefits by OPM or if the issue is integral to the disposition of an
underlying appealable action. See Secrist v. U.S. Postal Service, 115 M.S.P.R.
199, ¶ 5 (2010). The appellant’s arguments concerning the merits of the alleged
collection action present no basis for finding jurisdiction over his appeal. For the
first time on review, the appellant alleges “OPM has the [Internal Revenue
4
Service (IRS)] collecting this erroneous debt” and the IRS confiscated over $1900
of his tax return money. PFR File, Tab 1 at 6. Although the appellant submits
various documents on review in support of his petition, there is no evidence that
OPM issued a final appealable decision affecting his retirement benefits or that
the disputed debt collection action is within the Board’s jurisdiction. 3 See id. at
8-12. We therefore deny the petition for review. 4
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:
3
The documents that the appellant submitted with his petition for review consisted of:
bills that he received from the agency regarding a workers’ compensation benefits
overpayment; part of a letter he received from DOL concerning h is workers’
compensation claim; a letter from the agency denying the appellant’s request for
reinstatement; and a letter from OPM stating the amount of the appellant’s interim
annuity payment. PFR File, Tab 1 at 8-12. The appellant does not explicitly address
his failure to submit this evidence on appeal or his failure to respond to the show cause
order on jurisdiction. However, the appellant states that his pro se status, combined
with health and financial issues, prevented him from processing his appeal properly. I d.
at 4.
4
The appellant also argues, for the first time on review, that the agency failed to restore
or reinstate him to duty or to provide him with reasonable accommodation, although he
does not fully explain the basis for these claims. PFR File, Tab 1 at 4. An appellant
may appeal an alleged denial of restoration to the Board if he can prove that his claim
meets the applicable jurisdictional criteria. Here, however, the appellant did not raise a
restoration claim on appeal. Accord ingly, the administrative judge in this appeal had
no opportunity to consider it, and we will not consider it on review. See 5 C.F.R.
§ 1201.115(d). We note, however, that the appellant appears to have raised these
claims in his recently refiled invo luntary retirement appeal, which is pending
adjudication by another administrative judge. RAF, Tab 5 at 3, Tab 6 at 4-6. Although
the appellant asked the Board to join his refiled appeal with the underlyin g debt
collection appeal because he believes they “may have similarities,” we deny his request
because doing so would not expedite the processing of these cases. PFR File, Tab 1 at
1; see 5 C.F.R. § 1201.36(a)(2), (b)(1).
5
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 appeal to
the Court of Appeals for the Federal Circuit, 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
6
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.