The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JOHN J. SMITH, DOCKET NUMBER
Appellant, AT-0842-15-0628-I-1
v.
OFFICE OF PERSONNEL DATE: March 2, 2016
MANAGEMENT,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
John J. Smith, Jackson, Mississippi, pro se.
Roxann Johnson, 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 appeal of the final decision of the Office of Personnel Management
(OPM) for lack of jurisdiction. Generally, we grant petitions such as this one
only when: the initial decision contains erroneous findings of material fact; 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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
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 administrative
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, 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).
DISCUSSION OF ARGUMENTS ON REVIEW
¶2 This matter involves a May 20, 2015 OPM final decision issued pursuant to
the administrative judge’s March 19, 2015 initial decision remanding the matter
to OPM for a final appealable decision. See Smith v. Office of Personnel
Management, MSPB Docket No. AT-0841-15-0229-I-1, Initial Appeal File, Tab 1
at 4-5; Initial Decision (0229-I-1 ID) at 4-5 (Mar. 19, 2015). 2 In its May 20, 2015
final decision, OPM dismissed the appellant’s request for a determination on his
eligibility for retirement benefits because, among other things, he had not
submitted an application for retirement benefits and OPM does not give advisory
2
In the prior appeal, the appellant challenged OPM’s failure to issue a final appealable
decision concerning his earliest retirement date. 0229 I-1 ID at 1. The administrative
judge remanded the matter to OPM with instructions to issue a final appealable decision
within 90 days. Id. at 1-2. On May 20, 2015, OPM issued a final initial decision
dismissing the appellant’s request. Smith v. Office of Personnel Management, MSPB
Docket No. AT-0842-15-06280-I-1, Initial Appeal File (IAF), Tab 1 at 4-5. On May
26, 2015, the appellant submitted a pleading entitled “Supplement to PFR” challenging
OPM’s decision, which the regional office docketed as the appeal now on review. IAF,
Tabs 1-2.
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opinions in the form of decisions. 3 Smith v. Office of Personnel Management,
MSPB Docket No. AT-0842-15-0628-I-1, Initial Appeal File (IAF), Tab 1 at 4.
In a show cause order, the administrative judge explained that only an individual
whose rights or interests under the Federal Employees Retirement Systems
(FERS) that are affected by a final decision by OPM may request the Board to
review the decision, and ordered the appellant to file evidence and argument to
prove that his appeal was within the Board’s jurisdiction. IAF, Tab 7. The
appellant responded that OPM had failed to answer his question regarding his
eligibility for immediate retirement and that he would like the administrative
judge to decide whether he was eligible for voluntary retirement on December 31,
2014. IAF, Tab 8. In an initial decision dated August 17, 2015, the
administrative judge dismissed the appeal for lack of jurisdiction, finding that the
appellant failed to show that he actually had applied to OPM for retirement
benefits. IAF, Tab 9, Initial Decision (ID) at 4-5. The appellant has filed a
petition for review of the initial decision, and OPM has responded in opposition.
Petition for Review (PFR) File, Tabs 1, 5.
¶3 Generally, the Board has jurisdiction over OPM determinations affecting an
appellant’s rights or interests under the retirement system only after OPM has
issued a final or reconsideration decision. Smith v. Office of Personnel
Management, 114 M.S.P.R. 395, ¶ 8 (2010); 5 C.F.R. § 841.308. The Board,
however, will take jurisdiction over a retirement-related appeal where OPM has
refused or improperly failed to issue a final or reconsideration decision. See
Okello v. Office of Personnel Management, 120 M.S.P.R. 498, ¶ 14 (2014). In
such a case, the Board will consider the totality of the circumstances to find that
OPM’s failure to act on the matter itself constitutes an appealable administrative
action affecting the appellant’s rights under a retirement system. Id., ¶ 15.
3
OPM also explained that it does not maintain records on current Federal employees,
like the appellant, and that such employees must work with their employing agency to
resolve retirement-related questions. IAF, Tab 1 at 4.
4
¶4 On review, the appellant asserts that he is challenging the administrative
judge’s decision to dismiss his appeal of OPM’s “decision to deny [him his] right
to retire on December 31, 2014.” PFR File, Tab 1 at 2. He further claims that he
was eligible to retire on December 31, 2014, but his employing agency and OPM
denied his application for retirement and OPM failed to issue him a final
decision. Id. at 2. The appellant also appears to argue that the proceeding was
unfair. Id. at 2-3.
¶5 First, contrary to the appellant’s characterization of the May 20, 2015 final
OPM decision, OPM did not deny his right to retirement. Id. at 2; IAF, Tab 5
at 5. Rather, OPM explained that there was no evidence that the appellant had
applied for immediate retirement and that OPM does not issue advisory opinions
regarding an employee’s eligibility for retirement. IAF, Tab 5 at 5.
¶6 Second, contrary to the appellant’s assertion on review, there is no evidence
that he has applied for immediate retirement, and he thus is not entitled to a
decision from OPM. Pursuant to the Civil Service Retirement System (CSRS)/
FERS Handbook and the instructions provided to the appellant in OPM’s decision
letter, in order to apply for retirement, an employee must submit an application
for immediate retirement on a Standard Form (SF) 3107, Application for
Immediate Retirement, FERS, or an SF-2801, Application for Immediate
Retirement, CSRS. See CSRS/FERS Handbook (Handbook), Chapter 40,
Section 40A3.1-1, available at https://www.opm.gov/retirement-services/
publications-forms/csrsfers-handbook/; IAF, Tab 5 at 5. With its May 20, 2015
decision, OPM enclosed an SF-2801 and SF-3701 for the appellant’s use if he
wished to apply for retirement benefits under the applicable retirement system.
Id. at 5-41. However, the appellant does not allege, and there is no evidence
suggesting, that he has ever submitted an SF-3107 or SF-2801. PFR File, Tab 1;
IAF, Tabs 1, 6, 8.
¶7 In the proceedings below, the appellant provided a copy of the SF-52 he
submitted to his agency’s human resources (HR) office requesting a voluntary
5
retirement effective December 31, 2014, and email correspondence from the HR
specialist informing him that he would not be eligible to retire until he had
5 years of civilian service, not including his military time. IAF, Tab 6 at 1, 9-10,
39. He also submitted copies of email correspondence with an OPM
representative regarding the rules for calculating creditable civilian service, in
which he insisted that the CSRS/FERS Handbook allowed him to use his military
service to meet the 5-year minimum civilian service requirement under FERS. Id.
at 27-29. In two emails to OPM, the appellant requested a final appealable
decision concerning his earliest retirement date. Id. at 27-28. However, these
measures do not constitute an application for retirement and do not trigger OPM’s
duty to issue a decision on the appellant’s request for retirement. See Handbook,
Chapter 40, Section 40A3.1-1. Thus, the appellant is not entitled to a final
appealable decision from OPM on his eligibility for retirement, and OPM has not
improperly failed to issue one so as to constitute a constructive denial over which
the Board could find jurisdiction. See Okello, 120 M.S.P.R. 498, ¶ 14.
¶8 Third, although the appellant requested that OPM issue an appealable
decision on his earliest retirement date, he is not entitled to such a determination
absent an actual application for retirement benefits. As the administrative judge
explained, OPM is not required to issue an advisory opinion regarding the
appellant’s eligibility to retire on a certain date. See ID at 4. As such, OPM has
not acted improperly by failing to issue an advisory opinion on the appellant’s
request for a determination on his earliest possible retirement date. Likewise, the
Board is prohibited from issuing an advisory opinion on the appellant’s eligibility
to retire on a certain date. ID at 4; 5 U.S.C. § 1204(h). Accordingly, we agree
with the administrative judge that, unless and until the appellant applies for
immediate retirement and receives a decision from OPM on his application, there
is no basis to find Board jurisdiction over the appellant’s retirement matter.
¶9 Finally, we find no merit to the appellant’s claim that the proceeding was
unfair because the administrative judge “refused to look at the facts” and gave
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OPM “months to respond while [he] was given days.” PFR File, Tab 1 at 2-3. In
making a claim of bias or prejudice against an administrative judge, a party must
overcome the presumption of honesty and integrity that accompanies
administrative adjudicators. Thompson v. Department of the Army, 122 M.S.P.R.
372, ¶ 29 (2015). We find that the appellant’s bare assertions do not meet the
high standard for establishing bias, and we discern no reversible error by the
administrative judge. The appellant also has not shown that he requested
additional time to submit any evidence or argument or that additional time would
have affected the outcome of the case. The appellant was given 2 weeks to
respond to the show cause order, which we find to be a reasonable amount of
time. IAF, Tab 7 at 4.
¶10 Based on the foregoing, we affirm the initial decision dismissing the appeal
for lack of jurisdiction.
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
You have the right to request review of this final decision by the
U.S. 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).
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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 U.S. 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 U.S. 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 an appeal to
the U.S. 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.