NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
__________________________
WILLIAM B. WILEY,
Petitioner,
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent.
__________________________
2009-3151
__________________________
Petition for review of the Merit Systems Protection
Board in case no. SF0831090055-I-1.
_______________________
Decided: January 11, 2011
_______________________
PETER B. BROIDA, of Arlington, Virginia, argued for
petitioner.
JEFFREY A. GAUGER, Attorney, Office of the General
Counsel, Merit Systems Protection Board, of Washington,
DC, argued for respondent. With him on the brief were B.
CHAD BUNGARD, General Counsel, and KEISHA DAWN
BELL, Deputy General Counsel.
__________________________
WILEY v. MSPB 2
Before RADER 1 , Chief Judge, and ARCHER and GAJARSA,
Circuit Judges.
ARCHER, Circuit Judge.
In this annuity case, William B. Wiley (“Wiley”) ap-
peals the Merit Systems Protection Board’s (“Board”)
dismissal of his appeal for lack of jurisdiction. Wiley v.
Office of Pers. Mgmt., No. SF-0831-09-0055-I-1 (Merit Sys.
Prot. Bd. Nov. 26, 2008) (“Initial Decision”). Because the
Board failed to decide whether the Office of Personnel
Management’s (“OPM”) October 2008 letter to Wiley was
an appealable action, the Board’s decision is vacated and
remanded.
A
Wiley retired from federal service in January of 2001.
He was eligible for a retirement annuity under the Civil
Service Retirement System, and in his application for the
annuity, he elected to receive a reduced annuity to pro-
vide a survivor annuity for his then-spouse. In 2002,
Wiley’s marriage was dissolved. Wiley believed the state
court divorce documents provided that his ex-wife would
not receive a survivor annuity. 2
1 Randall R. Rader assumed the position of Chief
Judge on June 1, 2010.
2 Paragraph 11 of the Dissolution of Marriage
states: “RETIREMENT BENEFIT [DENIED BENEFIT] .
. . B. The parties have agreed that Wife shall not be
entitled to a former spouse survivor annuity, nor shall
Husband be required to provide Wife with a former
spouse survivor annuity.” Similarly, the “Stipulation of
Division of Pension Benefits” provided that a pro rata
share of Wiley’s monthly annuity be paid to his former
spouse, but it did not require that she be provided a
survivor annuity. The stipulation stated “any benefits not
specifically granted . . . to the Former Spouse shall be
payable to the Member . . . .”
3 WILEY v. MSPB
In December 2006, after realizing “for the first time”
that he was receiving a reduced annuity to provide a
survivor annuity for his ex-wife, Wiley wrote a letter to
OPM indicating that he did not intend to provide the
survivor benefit. Almost two years later, in October
2008, Wiley received a letter from OPM stating that it
had received a court order awarding a survivor annuity to
his former wife and that it would continue deducting the
survivor annuity. The letter was silent as to any options
for recourse for Wiley. Specifically, the letter did not
notify Wiley of any right to request reconsideration of the
decision, nor did it inform Wiley of any right to request
Board review. Wiley timely appealed OPM’s determina-
tion to the Board, requesting an order directing OPM to
correct his annuity calculations with respect to the inap-
propriate reduction of his annuity for the survivor benefit.
OPM responded to the appeal by submitting a letter
to the Administrative Judge (“AJ”) assigned to the case
and moving that the appeal be dismissed. OPM stated:
No final decision has been issued by [OPM] con-
cerning a court ordered former spouse survivor
benefit. In addition, we have rescinded the initial
decision determining that the appellant’s former
spouse is entitled to a former spouse survivor an-
nuity. . . . After the dismissal becomes final, we
will issue a new decision to the parties concerning
whether the court order awards former spouse
survivor annuity benefits.
After first noting that there “ha[d] been no determina-
tion of whether the Board has jurisdiction over this ap-
peal pursuant to 5 U.S.C. § 8347(d)(1) and
5 C.F.R. § 831.110,” Initial Decision, slip op. at 1-2, the AJ
dismissed the appeal for lack of jurisdiction on the
grounds that OPM had rescinded its decision in its en-
WILEY v. MSPB 4
tirety and indicated that it would issue a new decision.
The AJ’s decision became the final decision of the Board.
Wiley now appeals. We have jurisdiction pursuant to
28 U.S.C. § 1295(a)(9).
B
We must affirm the decision of the Board unless it is:
1) arbitrary, capricious, an abuse of discretion or other-
wise not in accordance with law; 2) obtained without
following the procedures required by law; or 3) unsup-
ported by substantial evidence. 5 U.S.C. § 7703(c).
Whether the Board has jurisdiction to adjudicate an
appeal is a question of law, which we review de novo.
Forest v. Merit Sys. Prot. Bd., 47 F.3d 409, 410 (Fed. Cir.
1995).
1
In this appeal, the first issue is whether the dismissal
below was correct because OPM’s October 2008 decision
was not a final appealable decision.
Pursuant to statute, “an administrative action or or-
der affecting the rights or interests of an individual[‘s
retirement] . . . may be appealed to the Merit Systems
Protection Board under procedures prescribed by the
Board.” 5 U.S.C § 8347(d)(1). OPM’s regulations require
that in order for a decision to be appealable to the Board,
it must be a “final decision of [OPM].” 5 C.F.R. § 831.110
(2009) (“An individual . . . whose rights or interests under
the Civil Service Retirement System . . . are affected by a
final decision of [OPM] . . . may request the Merit Sys-
tems Protection Board to review such decision . . . .”).
The regulations define two types of “final” decision:
(1) After reconsideration, the Associate Director's
representative shall issue a final decision which
5 WILEY v. MSPB
shall be in writing, shall fully set forth the find-
ings and conclusions of the reconsideration, and
shall contain notice of the right to request an ap-
peal provided in § 831.110. Copies of the final de-
cision shall be sent to the individual, to any
competing claimants and, where applicable, to the
agency.
(2) OPM may issue a final decision providing the
opportunity to appeal under § 831.110 rather than
an opportunity to request reconsideration under
paragraph (c) of this section. Such a decision must
be in writing and state the right to appeal under §
831.110.
5 C.F.R. §§ 831.109(f)(1), (2) (2009). The regulations
further define an “initial decision” as one that is “ren-
dered by OPM in writing and stating the right to recon-
sideration.” 5 C.F.R. § 831.109(c) (2009). Thus, under
OPM’s regulations, absent an initial decision expressly
stating the right to appeal to the Board, an appellant
must obtain a reconsideration decision in order to appeal
to the Board.
We note that the Board has recognized an exception to
this regulatory requirement. In Richards v. Office of
Personnel Management, 29 M.S.P.R. 310, 312 (1985), the
Board concluded that “while OPM’s letter dismissing
appellant’s application d[id] not meet the regulatory
definition of either an appealable initial decision or a
reconsideration decision, the regulatory requirement for
obtaining a reconsideration decision should not apply
under the circumstances of this case.” The Board noted
that the letter at issue in that case “clearly constitute[d] a
decision on appellant’s position” and did not “state that
appellant ha[d] any right to appeal or pursue that deter-
mination.” Id. According to the Board, because the
WILEY v. MSPB 6
appellant was unaware that he could request reconsidera-
tion, it was inappropriate to require such a decision as a
prerequisite to Board review. Id. See also Scallion v.
Office of Pers. Mgmt., 72 M.S.P.R. 457, 461 (1996);
Youngblood v. Office of Pers. Mgmt., 108 M.S.P.R. 278,
283-84 (2008).
In view of our holding below as to the effect of the uni-
lateral rescission of the October 2008 decision of OPM, it
will be necessary on remand for the Board to determine
whether that decision was, or should be treated as, a final
appealable decision of OPM.
2
The second issue on appeal is whether the dismissal
below was proper because OPM rescinded its October
2008 decision and stated that it would issue a new deci-
sion.
An appeal that has been properly brought before the
Board can be rendered moot by an agency’s complete
rescission of its decision, thus divesting the Board of
jurisdiction. See Kagel v. Dep’t of Army, 126 F.3d 1455,
1458 (Fed. Cir. 1997) (“The Board may dismiss an appeal
as moot if the appealable action is canceled or rescinded
by the agency. The agency's rescission of the appealable
action, however, must be complete in order for the appeal
to be deemed moot and to relieve the Board of its statu-
tory obligation to decide the appeal.” (internal citations
omitted)).
“Simply stated, a case is moot when the issues pre-
sented are no longer ‘live’ or the parties lack a legally
cognizable interest in the outcome.” Powell v. McCor-
mack, 395 U.S. 486, 496 (1969). Indeed,
[J]urisdiction, properly acquired, may abate if the
case becomes moot because
7 WILEY v. MSPB
1) it can be said with assurance that “there is no
reasonable expectation . . .” that the alleged
violation will recur, and
2) interim relief or events have completely and ir-
revocably eradicated the effects of the alleged
violation.
When both conditions are satisfied it may be said
that the case is moot because neither party has a
legally cognizable interest in the final determina-
tion of the underlying questions of fact and law.
County of Los Angeles v. Davis, 440 U.S. 625, 631 (1979)
(internal citations omitted). Thus, if neither OPM nor
Wiley has “a legally cognizable interest in the final de-
termination of the underlying questions of fact and law,”
the Board’s dismissal of Wiley’s appeal was proper. Id.
OPM’s submission to the Administrative Judge re-
scinding its October 2008 letter, however, did not “irrevo-
cably eradicate[ ] the effects of the alleged violation.”
Rather, it left Wiley awaiting a determination by OPM as
to whether his annuity has been (and continues to be)
properly reduced by a survivor annuity. Certainly, then,
Wiley continues to have a legally cognizable interest in
the outcome, and OPM’s unilateral rescission of its Octo-
ber 2008 determination did not moot Wiley’s appeal. See
also Fernandez v. Dep’t of Justice, 105 M.S.P.R. 443, 446
(2007) (concluding that an appellant’s sworn statement
that the agency had not paid him all appropriate back pay
constitutes a nonfrivolous allegation that his appeal is not
moot and must first be resolved before the appeal could be
properly dismissed); see also Hagan v. Dep’t of the Army,
99 M.S.P.R. ¶6 (2005) (“If an agency fails to completely
rescind an appealed action, the Board will retain jurisdic-
tion over the underlying action. Furthermore, the proper
remedy, if an employee has not been returned to the
WILEY v. MSPB 8
status quo ante, is for the Board to retain jurisdiction and
adjudicate the appeal on the merits.”) For the Board to
have reached a contrary conclusion was error.
C
Accordingly, on remand, the Board must first deter-
mine whether OPM’s 2008 letter was an appealable
action, that is, should it be treated as a final decision by
OPM. If the Board concludes that it was, the Board must
reach the merits of Wiley’s appeal.
VACATED AND REMANDED