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THIS FINAL ORDER IS NONPRECEDENTIAL 1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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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.