Filed: Feb. 02, 2015
Latest Update: Mar. 02, 2020
Summary: UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD GERALD MITCHELL, DOCKET NUMBER Appellant, AT-0831-14-0611-I-1 v. OFFICE OF PERSONNEL DATE: February 2, 2015 MANAGEMENT, Agency. THIS FINAL ORDER IS NO NPRECEDENTIAL 1 Gerald Mitchell, Memphis, Tennessee, pro se. Angerlia D. Johnson, Washington, D.C., for the agency. BEFORE Susan Tsui Grundmann, Chairman Anne M. Wagner, Vice Chairman Mark A. Robbins, Member FINAL ORDER ¶1 The appellant has filed a petition for review of the initial decision,
Summary: UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD GERALD MITCHELL, DOCKET NUMBER Appellant, AT-0831-14-0611-I-1 v. OFFICE OF PERSONNEL DATE: February 2, 2015 MANAGEMENT, Agency. THIS FINAL ORDER IS NO NPRECEDENTIAL 1 Gerald Mitchell, Memphis, Tennessee, pro se. Angerlia D. Johnson, Washington, D.C., for the agency. BEFORE Susan Tsui Grundmann, Chairman Anne M. Wagner, Vice Chairman Mark A. Robbins, Member FINAL ORDER ¶1 The appellant has filed a petition for review of the initial decision, ..
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UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
GERALD MITCHELL, DOCKET NUMBER
Appellant, AT-0831-14-0611-I-1
v.
OFFICE OF PERSONNEL DATE: February 2, 2015
MANAGEMENT,
Agency.
THIS FINAL ORDER IS NO NPRECEDENTIAL 1
Gerald Mitchell, Memphis, Tennessee, pro se.
Angerlia D. Johnson, Washington, D.C., for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Anne M. Wagner, Vice Chairman
Mark A. Robbins, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed his disability retirement 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
1
A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
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).
DISCUSSION OF ARGUMENTS ON REVIEW
¶2 On September 17, 2013, the Office of Personnel Management (OPM)
approved the appellant’s application for disability retirement. Mitchell v. Office
of Personnel Management, MSPB Docket No. AT-0841-14-0365-I-1, Initial
Appeal File, Tab 22 at 6-8. On March 18, 2014, the appellant filed the instant
appeal concerning the processing of his application for that disability retirement
annuity. Initial Appeal File (IAF), Tab 1 at 5. The administrative judge issued
an order to the parties, which advised the appellant of his burden of proof
regarding jurisdiction. IAF, Tab 14 at 1-3. After the appellant requested an
extension, the administrative judge issued an initial decision dismissing the
appeal for lack of jurisdiction. 2 IAF, Tabs 15-16, Tab 17, Initial Decision (ID)
2
We find that the administrative judge erred by not issuing a ru ling on the appellant’s
request for an extension. See Long v. Department of the Navy, 32 M.S.P.R. 438, 440
(1987). However, the appellant has not shown that an extension would have enabled
him to provide additional evidence or argument establishing Board jurisdiction over h is
claims below, and has not provided such evidence or argument on review, and therefore
the administrative judge’s failure to rule on his request does not constitute reversible
error. See Panter v. Department of the Air Force, 22 M.S.P.R. 281, 282 (1984)
3
at 2-3. The appellant has submitted a timely petition for review. Petition for
Review (PFR) File, Tab 1. The agency has not responded to the petition for
review.
The Board lacks jurisdiction because OPM has not issued a reconsideration
decision regarding the appellant’s disability retirement annuity calculations.
¶3 On petition for review, the appellant alleges that, “the agency has failed
and/or refused to correct the commencing date of his disability retirement annuity
to his last day of pay.” PFR File, Tab 2 at 3. He did not challenge OPM’s
annuity calculations below. See IAF Tabs 1, 4-10. Instead, he alleged that
“under the watch of OPM,” his employing agency improperly completed, or failed
to complete, an OPM Standard Form 3112D, Agency Certification of
Reassignment and Accommodation Efforts. IAF, Tab 1 at 5. He also alleged
below that OPM refused (1) to properly advise him of his rights and benefits
regarding eligibility for both disability retirement and discontinued service
retirement, and (2) to correct his retirement date. 3 IAF, Tab 8 at 3. The
administrative judge found that the Board lacks jurisdiction because OPM had not
issued a reconsideration decision. ID 2-3. We agree. 4
(adjudicatory error which is not prejudicial to a party’s substantive rights is not
reversib le error).
3
The appellant alleged below that OPM refused to process his health insurance. IAF,
Tab 8 at 3. However, OPM’s decisions concerning its administration of health benefits
are not reviewable by the Board. See Oppenheim v. Office of Personnel Management,
51 M.S.P.R. 255, 257 (1991).
4
The appellant alleged below and on review that OPM failed to respond to his
discovery request. IAF, Tab 7 at 3, Tab 9 at 3; PFR File, Tab 4 at 3. The
administrative judge did not rule on the appellant’s motion to compel discovery, which
did not meet the requirements of 5 C.F.R. § 1201.73, in that it was not accompanied by
a statement that no response was received. See 5 C.F.R. § 1201.73(c)(1)(ii). Further,
the appellant did not state how the discovery information sought was relevant and
material. See 5 C.F.R. §§ 1201.72(a)-(b), .73(c)(1)(i). Because the appellant’s motion
to compel did not comply with the requirements of our regulations, the administrative
judge’s failure to rule on the motion was harmless error. See Johnson v. Department of
Justice, 104 M.S.P.R. 624, ¶ 30 (2007).
4
¶4 The Board generally lacks jurisdiction to consider the issue of OPM’s
annuity calculations if OPM has not issued a reconsideration decision on this
matter. See Parkin v. Office of Personnel Management, 103 M.S.P.R. 468, ¶ 9
(2006). However, the Board has recognized an exception to this general rule
where OPM has failed to render a decision. Ramirez v. Office of Personnel
Management, 114 M.S.P.R. 511, ¶ 7 (2010). The Board will take jurisdiction,
even absent an OPM reconsideration decision, when the appellant has repeatedly
requested such a decision and the evidence indicates that OPM does not intend to
issue a reconsideration decision. Id.
¶5 In the instant case, the Board lacks jurisdiction to consider the issue of the
annuity calculations because OPM has not issued a reconsideration decision on
this matter, and the evidence suggests OPM intends to issue such a decision. See
IAF, Tab 12 at 4-5. OPM indicated below that it “needs time to finalize [the
appellant’s] disability annuity” because it “require[s] some extensive
development and calculations” and that it was delayed by the need to issue a final
decision regarding the appellant’s separate discontinued service retirement
application. Id. at 5. OPM also noted, “[a]s of now [it has] 4 different offices
involved in his case adjudication and the appeal matter.” Id. Thus, OPM
responded to the appellant’s assertions and identified the reasons why a
reconsideration decision had not yet been issued. 5
The Board does not have jurisdiction to adjudicate the appellant’s claims of
reprisal or violation of the Family and Medical Leave Act.
¶6 The appellant alleged below that OPM had “engaged in conspiracy but not
limited to reprisal, among other things.” IAF, Tab 1 at 5. On petition for review,
he alleges retaliation by OPM. 6 See PFR File, Tab 1 at 3-4. He alleges that OPM
5
Subsequent to OPM issuing a reconsideration decision, the appellant can file a new
appeal with the Board if he is dissatisfied.
6
The appellant seeks 57 million dollars to settle the appeal. PFR File, Tab 1 at 4.
However, because there is no jurisdiction over this appeal, we will not address his claim
5
is “still engaged in reprisal activities as well as other stuff and are in violation of
his FMLA rights but not limited to his rights under the Rehabilitation Act and the
Civil Rights Act.” Id. at 3. Further, he argues that OPM has not required his
employing agency to “accommodate and/or to reassign him and [he] believes the
Board has jurisdiction over this matter.” PFR File, Tab 3 at 3.
¶7 With certain exceptions not relevant here, prohibited personnel practices
under 5 U.S.C. § 2302(b)(9) are not an independent source of Board jurisdiction.
See Wren v. Department of the Army, 2 M.S.P.R. 1, 2 (1980), aff’d, 681 F.2d 867,
871-73 (D.C. Cir. 1982). Because the Board lacks jurisdiction over the
appellant’s disability retirement annuity, the Board also lacks jurisdiction over
his allegations of reprisal and the agency’s alleged failure to accommodate or
reassign him.
¶8 The appellant raises a claim under the Family and Medical Leave Act of
1993 (FMLA) but does not provide any details regarding an alleged violation.
Although the Board will adjudicate an alleged violation of FMLA in connection
with a leave-related disciplinary action, it will not take action on an FMLA claim
absent jurisdiction. Lua v. U.S. Postal Service, 87 M.S.P.R. 647, ¶ 12 (2001).
Because we find that we lack jurisdiction over the appellant’s disability
retirement claim, we decline to review his FMLA claim.
¶9 The appellant requested that the Board consolidate this appeal with his
other appeals. IAF, Tab 8 at 3. To the extent that he was referring to Mitchell v.
Office of Personnel Management, MSPB Docket No. AT-0841-14-0365-I-1, and
Mitchell v. United States Postal Service, MSPB Docket No. DA-3443-14-0350-
I-1, we DENY his motion for joinder. In his appeal in MSPB Docket No. AT-
0841-14-0365-I-1, the appellant alleges that OPM repeatedly “failed and/or
refused” to issue a reconsideration decision regarding his application for a
discontinued service retirement annuity. MSPB Docket No. AT-0841-14-0365-
for damages. See Shelton v. U.S. Soldiers’ & Airmen’s Home, 82 M.S.P.R. 695, ¶ 10
(1999).
6
I-1, Initial Appeal File, Tab 1 at 3-4. In his appeal in MSPB Docket No. DA-
3443-14-0350-I-1, the appellant is challenging the alleged failure of the U.S.
Postal Service to provide insurance. MSPB Docket No. DA-3443-14-0350-I-1,
Initial Appeal File, Tab 1. Both appeals are pending before the Board on petition
for review.
¶10 Joinder of two or more appeals filed by the same appellant may be
appropriate when joinder would expedite processing of the appeals and when
joinder would not adversely affect the interests of the parties. Boechler v.
Department of the Interior, 109 M.S.P.R. 542, ¶ 14 (2008), aff’d, 328 F. App’x
660 (Fed. Cir. 2009); 5 C.F.R. § 1201.36(a)(2), (b). In the instant case, joining
this appeal with the appeal in MSPB Docket No. AT-0841-14-0365-I-1 would not
expedite processing of the appeals because we are remanding that appeal, as
noted in our separate Order in that case. Further, joining this appeal with the
appeal in MSPB Docket No. DA-3443-14-0350-I-1 would not be appropriate
because there is no evidence that the U.S. Postal Service ever requested to
intervene in this proceeding. Cf. Holser v. Office of Personnel
Management, 72 M.S.P.R. 247, 251 (1996) (finding no error by the administrative
judge in not combining a disability retirement claim with an involuntary
resignation claim because disposition of one did not affect the other).
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
7
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.
