UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
THOMAS E. GABRIEL, DOCKET NUMBER
Appellant, DA-0845-15-0410-I-1
v.
OFFICE OF PERSONNEL DATE: November 13, 2015
MANAGEMENT,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL ∗
Thomas E. Gabriel, Canyon Lake, Texas, pro se.
Karla W. Yeakle, 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 the appeal of lack of jurisdiction. 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
∗
A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).
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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).
¶2 On March 18, 2015, the Office of Personnel Management (OPM) issued a
notice informing the appellant that his Federal Employees’ Retirement System
(FERS) annuity had been overpaid by $44,439.20 because it had not been reduced
by the amount of his Social Security benefits. Initial Appeal File (IAF), Tab 5
at 5-6. On June 1, 2015, the appellant appealed OPM’s initial decision and
requested that the Board issue a decision without a hearing. IAF, Tab 1, Tab 3
at 2. The appellant alleged that he notified OPM that he was receiving Social
Security benefits in 2008 but that OPM was negligent in failing to timely adjust
his FERS annuity. IAF, Tab 1 at 3. He requested a waiver of the overpayment.
Id. OPM filed a motion to dismiss the appeal because it had not rendered a final
decision. IAF, Tab 5. The administrative judge dismissed the appeal for lack of
jurisdiction finding that OPM has not yet issued a final decision concerning the
appellant’s challenge to the overpayment decision. IAF, Tab 8, Initial Decision
(ID) at 3. The administrative judge noted that the appellant may file a new appeal
once OPM renders its final decision, and he may request to have the record of this
appeal incorporated into the new appeal. ID at 3 n.3.
¶3 The appellant has filed a petition for review reiterating the arguments he
made before the administrative judge. Petition for Review (PFR) File, Tab 1.
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The agency has filed an opposition to the appellant’s petition stating that once the
Board issues a final decision in this appeal, it will render a final decision
concerning the appellant’s challenge to the overpayment decision which will
include appeal rights. PFR File, Tab 5.
¶4 An individual whose rights or interests under FERS are affected by a final
decision of OPM may request that the Board review OPM’s decision. 5 C.F.R.
§ 841.308. A reconsideration decision issued under 5 C.F.R. § 841.306 and an
initial decision issued without reconsideration rights under 5 C.F.R. § 841.307 are
final decisions. Okello v. Office of Personnel Management, 120 M.S.P.R. 498,
¶ 14 (2014). The Board also will take jurisdiction over an appeal concerning a
retirement matter if OPM has refused or improperly failed to issue a final
decision. Id.
¶5 We agree with the administrative judge’s finding that the appellant made a
timely request for reconsideration of OPM’s overpayment decision. ID at 2 n.1.
OPM has stated that it will render a final decision after the Board issues a final
decision in this appeal. PFR File, Tab 5 at 4. Because OPM has not yet rendered
a final decision, the administrative judge appropriately dismissed this appeal. ID
at 3. As stated in the initial decision, after OPM renders a final decision, the
appellant may file a new appeal and request that the record in this appeal be
incorporated into the new appeal. ID at 3 n.3. Additionally, if, after repeated
requests for a reconsideration decision, OPM fails to issue a final decision and
the evidence indicates that OPM does not intend to issue a final decision, the
Board may have jurisdiction over a new appeal. Fagone v. Office of Personnel
Management, 85 M.S.P.R. 49, ¶ 9 (2000).
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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 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 an appeal to the
United States 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
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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.