UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
CALVIN W. SCOTT, DOCKET NUMBER
Appellant, AT-0831-14-0015-C-1
v.
OFFICE OF PERSONNEL DATE: March 17, 2015
MANAGEMENT,
Agency.
THIS FINAL ORDER IS NO NPRECEDENTIAL *
Calvin W. Scott, Lithonia, Georgia, pro se.
Christopher H. Ziebarth, 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
denied his petition for enforcement of the Board’s August 29, 2014 Remand
Order in MSPB Docket No. AT-0831-14-0015-I-1 and otherwise found that the
Board lacked jurisdiction over his claims absent a final decision by the Office of
*
A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
Personnel Management (OPM). 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 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).
BACKGROUND
¶2 On August 29, 2014, the Board ordered OPM to issue an initial decision on
the appellant’s application for former spouse annuity benefits within 90 calendar
days. MSPB Docket No. AT-0831-14-0015-I-1, Remand Order at 4-5 (Aug. 29,
2014). The appellant filed a pleading 10 days later that was docketed as a
petition for enforcement of the Remand Order. Compliance File (CF), Tab 1 at
1-2, Tab 2 at 1. In his request for relief, the appellant stated that he had no court
order awarding him former spouse benefits as required under the Civil Service
Retirement Spouse Equity Act of 1984, but maintained that he was entitled to the
benefits under certain statutes. CF, Tab 1 at 1-2. The administrative judge
ordered OPM to show proof that it had complied with the Board’s Remand Order
or demonstrate good cause for noncompliance. CF, Tab 2 at 1-2. OPM
responded that the Remand Order had instructed the agency to render a decision
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on the appellant’s application within 90 days of the August 29, 2014 order and
that the file had been forwarded to the Court Ordered Benefits Branch for review.
CF, Tab 4 at 4. OPM sought an extension of time to respond further until the
90-day period had expired. Id.
¶3 In the initial decision, the administrative judge noted that OPM had not
issued any decision on the appellant’s application for benefits and that the 90-day
period in the Board’s Remand Order had not yet expired. CF, Tab 6, Initial
Decision (ID) at 2. Thus, the administrative judge concluded that the appellant’s
appeal was premature, but informed him that, once OPM issued a final decision,
he could appeal that final decision in accordance with the appeal rights provided
by the agency. ID at 2-3. The administrative judge further stated that, viewing
this matter as a petition for enforcement of the Remand Order, the appellant’s
petition was denied without prejudice to the appellant filing a new petition for
enforcement if OPM failed to issue a decision at the expiration of the 90-day
period. ID at 3 n.1.
¶4 On review, the appellant submits a copy of an initial OPM decision dated
October 17, 2014, informing him that the court order he had submitted was
unacceptable for processing as it did not expressly award former spouse or former
spouse survivor annuity benefits. Petition for Review (PFR) File, Tab 1 at 7. In
his petition for review, the appellant does not address the administrative judge’s
finding that the petition for enforcement was filed prematurely, but instead
discusses a discrimination complaint he had filed with the Department of Justice
against OPM. Id. at 2-4. The appellant requests that the Board stay the present
case due to pending litigation in federal district court. Id. at 3. The appellant has
also filed a subsequent pleading concerning his discrimination complaints against
OPM and various state authorities, requesting that the Board send the matter to
arbitration. PFR File, Tab 3 at 1-4. The agency has responded that its October
17, 2014 decision satisfied its obligation under the Remand Order, and that the
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appellant did not seek reconsideration from OPM within the 30-day time limit.
PFR File, Tab 5 at 4.
DISCUSSION OF ARGUMENTS ON REVIEW
The administrative judge correctly denied the petition for enforcement.
¶5 The administrative judge correctly found that the appellant filed his petition
for enforcement of the Board’s August 29, 2014 Remand Order well before
OPM’s 90-day time limit to issue a decision on his application for former spouse
benefits had expired. See ID at 2; CF, Tab 1 at 1-2, 15-19. The record evidence
indicates that OPM issued a decision within the time limit on October 17, 2014,
satisfying the agency’s obligation under the Remand Order. See PFR File, Tab 1
at 7. We thus find that the agency is in compliance with the Remand Order and
deny the appellant’s petition for enforcement.
The Board lacks jurisdiction over the remainder of the appellant’s arguments.
¶6 The Board’s jurisdiction is not plenary; it 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). The appellant bears
the burden of proof of establishing Board jurisdiction by a preponderance of the
evidence. 5 C.F.R. § 1201.56(a)(2)(i). Generally, the Board has jurisdiction over
retirement issues only after OPM has rendered a final or reconsideration decision.
See 5 U.S.C. § 8347(d)(1); 5 C.F.R. § 831.110. A final decision is a decision
OPM has issued after a request for reconsideration of an initial decision, or which
it designates as final. See 5 C.F.R. § 831.109(f). However, the Board may take
jurisdiction over a retirement appeal in the absence of an OPM reconsideration
decision where the appellant has made repeated requests for such a decision, and
the evidence indicates that OPM does not intend to issue a reconsideration
decision. Johnson v. Office of Personnel Management, 113 M.S.P.R. 118, ¶ 10
(2010).
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¶7 The appellant has not contested the agency’s argument that he failed to seek
reconsideration within 30 days, see PFR File, Tab 5 at 4, although we note that
the appellant filed his petition for review in the present case 32 days after the date
of OPM’s initial decision, see PFR File, Tab 1 at 1-4. Although the appellant
submitted a copy of OPM’s initial decision, he alleges no error in OPM’s finding
that he had not provided a court order expressly awarding him a share of his
former spouse’s annuity or a survivor annuity. See id. at 7. In his petition, the
appellant argues that, due to his federal district court litigation, he needs “more
time to provide the OPM with a corrected Court Order for processing.” Id. at 3.
Thus, we find that the appellant does not seek Board review of OPM’s initial
decision concerning his application for former spouse benefits.
¶8 We deny the appellant’s request to stay the present case pending resolution
of proceedings in federal district court, which appear to concern matters outside
the scope of his appeal before the Board. See id. at 1-2. The appellant has not set
forth any basis upon which to stay this proceeding pending the outcome of his
litigation purportedly in relation to his claims of discrimination and
dissatisfaction with his divorce decree in state court. See id. We also deny the
appellant’s request to send his appeal to arbitration, as he has alleged no basis
under which the Board has jurisdiction over his discrimination complaints, and
has provided no authority for referring a pending case to arbitration.
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
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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 court
appeal, you may visit our website at http://www.mspb.gov/probono for a list of
attorneys who have expressed interest in providing pro bono representation for
Merit Systems Protection Board appellants before the court. 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.