UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
RIGOBERTO RODRIGUEZ, DOCKET NUMBER
Appellant, AT-0842-15-0782-I-1
v.
OFFICE OF PERSONNEL DATE: September 1, 2016
MANAGEMENT,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Rigoberto Rodriguez, Orlando, Florida, pro se.
Kristine Prentice, 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 his appeal for 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
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
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. 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).
DISCUSSION OF ARGUMENTS ON REVIEW
¶2 The appellant appealed the cancellation of his Federal Employees’
Retirement System (FERS) annuity supplement. Initial Appeal File (IAF), Tab 1.
The appellant claims that he has been trying to resolve this issue with the Office
of Personnel Management (OPM) for over 2 years. IAF, Tab 3 at 2. OPM filed a
motion to dismiss the appeal, asserting that it has not yet issued a final decision
and therefore the Board lacks jurisdiction. IAF, Tab 21. After considering the
appellant’s jurisdictional arguments, the administrative judge issued an initial
decision, without holding a hearing, dismissing the appeal for lack of jurisdiction.
IAF, Tab 23, Initial Decision (ID). The appellant has filed a petition for review.
Petition for Review (PFR) File, Tab 1.
¶3 The administrative judge appropriately dismissed the appeal based on lack
of jurisdiction. ID at 4-5. An administrative action or order affecting the rights
or interests of an individual under the provisions of 5 U.S.C. chapter 84
administered by OPM may be appealed to the Board. 5 U.S.C. § 8461(e)(1).
Generally, the Board has jurisdiction over retirement issues only after OPM
issues a final or reconsideration decision. Johnson v. Office of Personnel
3
Management, 113 M.S.P.R. 118, ¶ 10 (2010); 5 C.F.R. § 841.308. However, the
Board may assert jurisdiction over a retirement appeal in the absence of a
reconsideration decision if OPM has refused or improperly failed to issue a final
decision. McNeese v. Office of Personnel Management, 61 M.S.P.R. 70, 73-74,
aff’d, 40 F.3d 1250 (Fed. Cir. 1994) (Table).
¶4 The record contains communication between the appellant and OPM
concerning his annuity over a 2-year period; however, the appellant first
requested a decision on June 24, 2015. IAF, Tab 1 at 6-14. The appellant filed
his appeal on August 19, 2015. Id. at 4. Thus, there is no excessive delay by
OPM that would indicate a refusal or failure to issue a final decision.
Cf. Easter v. Office of Personnel Management, 102 M.S.P.R. 568, ¶ 8 (2006)
(finding that an 18-month delay by OPM in addressing the appellant’s application
indicated a declination to adjudicate the application). The appellant argues that,
because OPM was not the original respondent, 3 months passed between his
request for a decision and the date that OPM became a party in the appeal.
PFR File, Tab 1 at 3. Three months is not the type of excessive delay that would
lead the Board to conclude that OPM has improperly failed or refused to issue a
decision. Cf. Okello v. Office of Personnel Management, 120 M.S.P.R. 498, ¶ 15
(2014) (finding that OPM’s failure to act for 6 years constituted an appealable
administrative action because the appellant diligently sought a final decision
during that time period). OPM indicated that it will issue a decision once a final
decision is issued in this appeal. IAF, Tab 21. Accordingly, we find that the
administrative judge correctly determined that the Board lacks jurisdiction over
this appeal pursuant to 5 U.S.C. § 8461(e)(1) because there is no final decision
from OPM affecting the appellant’s rights or interest under FERS. 2
2
Because the Board lacks jurisdiction for the reasons explained in the initial decision,
we need not reach the issue of whether a final OPM decision reducing or cancelling the
appellant’s FERS annuity supplement could be reviewed by the Board. See 5 C.F.R.
§ 842.505(e) (stating that a reduction in an annuity supplement because of excess
earnings is not subject to the due process procedures described in 5 U.S.C. § 8461(e)).
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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 U.S.
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 U.S. 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
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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: ______________________________
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.