Juan J. Dehoyos v. Department of the Army

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

JUAN J. DEHOYOS, DOCKET NUMBER

Appellant, DA-3443-15-0182-I-1

v.

DEPARTMENT OF THE ARMY, DATE: August 5, 2015

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Juan J. Dehoyos, San Antonio, Texas, pro se.

Joseph P. Kinlin, Esquire, Fort Sam Houston, Texas, 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 this appeal of a Voluntary Separation Incentive

Payment (VSIP) denial. 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 regulation or the

1

A nonprecedential order is one that the Board has determined does not add

significantly 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 Parties may cite nonprecedential orders,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 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 former GS-11 Contract Specialist for the agency, retired

under the Federal Employees’ Retirement System (FERS), effective December 31,

2012. Initial Appeal File (IAF), Tab 4, Subtab 4. On October 7, 2014, the

appellant filed a defective appeal with the Board, which he perfected on

January 9, 2015. 2 IAF, Tab 1 at 1, Tab 2. He indicated that he was challenging

the agency’s decision not to award him a $25,000 VSIP. IAF, Tab 2 at 7-8. The

appellant requested a hearing. Id. at 5.

¶3 The administrative judge issued an acknowledgment order directing the

appellant to file evidence and argument showing that the Board has jurisdiction

over the appeal. IAF, Tab 3 at 2. When the appellant failed to respond, the

administrative judge issued an initial decision dismissing the appeal for lack of

jurisdiction without a hearing. IAF, Tab 5, Initial Decision (ID) at 2 & n.2. She

2

It appears that the January 9, 2015 refiling was untimely according to the Chief

Administrative Judge’s October 20, 2015 notice, which directed the appellant to refile

within 10 calendar days after he received the notice. IAF, Tab 1 at 1. Because the

administrative judge dismissed the appeal for lack of jurisdiction, she made no finding

on the timeliness issue. IAF, Tab 5 at 1 n.1. We decline to reach the timeliness issue

for the same reason.

3

found that there was no law or regulation giving the Board jurisdiction over

appeals of VSIP denials, and that the appellant did not make a nonfrivolous

allegation of jurisdiction over his appeal. 3 ID at 3-4.

¶4 The appellant has filed a petition for review, arguing that he did, in fact,

respond to the acknowledgment order, that the administrative judge should have

conducted a hearing, and that there must be some way for him to vindicate his

rights. Petition for Review (PFR) File, Tab 1 at 3, 5. He also argues the merits

of his VSIP claim. Id. at 4. The agency has not filed a response.

¶5 The Board’s jurisdiction 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). Like the administrative judge,

we are unaware of any law, rule, or regulation giving the Board jurisdiction over

an appeal of a VSIP denial. There are no provisions for Board appeals in the

governing statute and regulations. See 5 U.S.C. chapter 35, subchapter II;

5 C.F.R. part 576. Furthermore, we find that the denial of a VSIP is not an

appealable agency action or order affecting an individual’s rights under FERS.

Cf. 5 U.S.C. § 8461(e)(1) (an administrative action or order affecting the rights or

interests of an individual or of the United States under FERS administered by the

Office of Personnel Management may be appealed to the Board). As applicable

here, VSIPs are governed by 5 U.S.C. chapter 35, subchapter II and 5 C.F.R.

part 576, not 5 U.S.C. chapter 84. Furthermore, if VSIPs were retirement benefits

under 5 U.S.C. chapter 84, they would be paid from the Civil Service Retirement

and Disability Fund, which they are not. See 5 U.S.C. §§ 3523(b)(7) (reflecting

that VSIPs are paid from “appropriations or funds available for … basic pay”),

8348(a)(1)(A) (reflecting that FERS benefits come from the Fund). Nor are

3

The administrative judge acknowledged that the appellant made some references to the

Voluntary Early Retirement Authority in his appeal, but she found that the appellant

was only attempting to appeal a VSIP denial. ID at 4. The appellant does not challenge

this finding on review.

4

VSIPs to be a basis for payment or included in the calculation of any other type

of benefit. See 5 U.S.C. § 3523(b)(5). Accordingly, we find that we lack

jurisdiction over the appellant’s claim that the agency improperly denied him

a VSIP.

¶6 Regarding the appellant’s arguments on review, even assuming that he did

respond to the acknowledgment order, he has not shown that his response would

have changed the outcome of the appeal by establishing Board jurisdiction. PFR

File, Tab 1 at 3. Nor was the appellant entitled to a hearing in this appeal

because he did not raise a nonfrivolous allegation of Board jurisdiction. Id.; see

Burgess v. Merit Systems Protection Board, 758 F.2d 641, 642-43 (Fed. Cir.

1985) (the right to a hearing arises after the appellant has made a nonfrivolous

allegation of Board jurisdiction over the appeal). In addition, the appellant’s

arguments about the merits of his claim are immaterial to the jurisdictional issue.

PFR File, Tab 1 at 4; see Farris v. U.S. Postal Service, 101 M.S.P.R. 316, ¶ 7

(2006). 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:

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

4

To the extent that the appellant is seeking information from the Board about the

proper venue for proceeding with his claim, we have reviewed the applicable statute and

regulations, and we have found no provision for appeal rights therein.

5

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

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.