NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
MARIA HAVRILLA,
Petitioner,
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent.
______________________
2014-3122
______________________
Petition for review of the Merit Systems Protection
Board in No. PH-844E-14-0473-I-1.
______________________
Decided: November 7, 2014
______________________
MARIA HAVRILLA, of Scranton, Pennsylvania, pro se.
LINDSEY SCHRECKENGOST, Attorney, Office of the
General Counsel, Merit Systems Protection Board, of
Washington, DC, for respondent. With her on the brief
was BRYAN G. POLISUK, General Counsel.
______________________
Before DYK, PLAGER, and MOORE, Circuit Judges.
2 HAVRILLA V. MSPB
PER CURIAM.
Maria Havrilla appeals from the final decision of the
Merit Systems Protection Board (MSPB) dismissing for
lack of jurisdiction her appeal from an Office of Personnel
Management’s (OPM) decision denying her application for
disability retirement benefits under the Federal Employ-
ees Retirement System. Because the MSPB correctly
determined that it lacked jurisdiction over Ms. Havrilla’s
appeal, we affirm.
BACKGROUND
Ms. Havrilla filed an application with OPM
requesting that it convert her early retirement from her
position at the U.S. Department of Justice into a
disability retirement. OPM issued its initial decision
informing Ms. Havrilla that her application for disability
retirement was incomplete and lacked the necessary
medical evidence and required supporting documentation
for OPM to make a determination on her claim. OPM
noted the missing forms in its decision and enclosed
copies of the missing forms for Ms. Havrilla to complete.
Ms. Havrilla requested reconsideration of OPM’s initial
decision and indicated that she would send additional
information about her disability and requested an
additional thirty calendar days to do so. Despite affording
Ms. Havrilla additional time to submit the necessary
medical and administrative documentation, OPM claimed
that it did not receive any additional evidence required to
process the disability application. OPM issued its
reconsideration decision sustaining its original decision
and dismissing Ms. Havrilla’s disability retirement
application.
Ms. Havrilla timely appealed OPM’s decision to the
MSPB. In her appeal Ms. Havrilla alleged that she sent
OPM additional documentation to support her application
for disability retirement. Shortly after Ms. Havrilla filed
her appeal, OPM decided to rescind its reconsideration
HAVRILLA V. MSPB 3
decision and grant Ms. Havrilla disability benefits and
thus filed a motion before the MSPB requesting that it
dismiss Ms. Havrilla’s appeal for lack of jurisdiction.
According to OPM, it reviewed all the medical evidence
Ms. Havrilla submitted and determined that she
submitted sufficient documentation to establish her
entitlement to disability retirement benefits.
The administrative judge (AJ) issued an Initial
Decision granting OPM’s motion and dismissing Ms.
Havrilla’s appeal for lack of jurisdiction. The AJ
determined that OPM’s rescission of its reconsideration
decision divested the MSPB of jurisdiction over the
appeal. The Initial Decision became the MSPB’s Final
Decision because a petition for review was not filed in the
matter. Ms. Havrilla appeals. We have jurisdiction
under 28 U.S.C. § 1295(a)(9).
DISCUSSION
Whether the MSPB 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). The appellant bears the burden of establishing the
MSPB’s jurisdiction by a preponderance of the evidence.
Kahn v. Dep’t of Justice, 528 F.3d 1336, 1341 (Fed. Cir.
2008).
We find that the MSPB properly dismissed Ms.
Havrilla’s appeal for lack of jurisdiction. The MSPB’s
jurisdiction is limited to those matters over which it has
been specifically granted jurisdiction by a law, rule, or
regulation. 5 U.S.C. § 7701(a); Prewitt v. Merit Sys. Prot.
Bd., 133 F.3d 885, 886 (Fed. Cir. 1998). A final decision of
OPM “affecting the rights or interests of an individual or
of the United States” is a jurisdictional prerequisite to a
MSPB appeal involving a claim under the civil service
retirement statutes. See 5 U.S.C. §§ 8347(d), 8461(e); 5
C.F.R. §§ 831.110, 841.308. Absent an OPM final or
reconsideration decision, the MSPB lacks jurisdiction to
4 HAVRILLA V. MSPB
review an appellant’s retirement claims. As such, where
the OPM has rescinded its decision, as it did in this case,
the rescission divests the MSPB of its jurisdiction. See,
e.g., Keira v. Merit Sys. Prot. Bd., 396 F. App’x 703, 704
(Fed. Cir. 2010). While there is a recognized exception to
this rule, it only applies in cases where it is evident that
OPM does not intend to issue another final decision. See
id. at 704–05. Ms. Havrilla’s appeal is not such a case.
Here, OPM indicated that upon receipt of the Initial
Decision, it would “forward the case file to the appropriate
office to determine the monetary benefit payable.” J.A.
20. While OPM has not yet processed Mr. Havrilla’s
disability benefits, we do not find that OPM’s delay in
granting those benefits suggests that OPM does not
intend to grant them. Under these circumstances, the
MSPB properly dismissed Ms. Havrilla’s appeal for lack of
jurisdiction.
Ms. Havrilla argues that the MSPB erred by
dismissing her appeal for lack of jurisdiction without
deciding whether OPM should be required to waive her
obligation to repay a separation incentive that she
received upon her early retirement. We disagree. At the
time of Ms. Havrilla’s appeal to the MSPB, OPM had
made no determination regarding waiver of her
separation incentive. As such, there was no final decision
from OPM regarding waiver of the separation incentive
and thus the MSPB did not have jurisdiction over this
question. See 5 U.S.C. §§ 8347(d), 8461(e); 5 C.F.R.
§§ 831.110, 841.308. The sole issue before the MSPB was
whether OPM improperly denied Ms. Havrilla’s
application for disability retirement benefits and, as a
result, the MSPB was divested of its jurisdiction when
OPM rescinded its decision to deny Ms. Havrilla’s
HAVRILLA V. MSPB 5
application for those benefits. 1
CONCLUSION
Because the MSPB correctly determined that it lacked
jurisdiction over Ms. Havrilla’s appeal, we affirm.
AFFIRMED
COSTS
No costs.
1 Ms. Havrilla also contends that she never received
OPM’s motion to dismiss her appeal despite the certificate
of service showing it was mailed to her; and therefore,
never had an opportunity to respond. This does not
change our analysis. Even if Ms. Havrilla never received
OPM’s motion, she was not harmed by this error in ser-
vice. OPM rescinded its reconsideration decision, and any
opposition by Ms. Havrilla would not have changed the
fact that the Board no longer had jurisdiction over her
appeal. Keira, 396 F. App’x at 704.