Filed: Aug. 26, 2016
Latest Update: Mar. 03, 2020
Summary: UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD MARK A. STAPLES, DOCKET NUMBER Appellant, DE-0842-16-0117-I-1 v. OFFICE OF PERSONNEL DATE: August 26, 2016 MANAGEMENT, Agency. THIS FINAL ORDER IS NONPRECEDENTIAL 1 Mark A. Staples, Albuquerque, New Mexico, pro se. Kristopher Lee Rogers, 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 appe
Summary: UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD MARK A. STAPLES, DOCKET NUMBER Appellant, DE-0842-16-0117-I-1 v. OFFICE OF PERSONNEL DATE: August 26, 2016 MANAGEMENT, Agency. THIS FINAL ORDER IS NONPRECEDENTIAL 1 Mark A. Staples, Albuquerque, New Mexico, pro se. Kristopher Lee Rogers, 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 appea..
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UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
MARK A. STAPLES, DOCKET NUMBER
Appellant, DE-0842-16-0117-I-1
v.
OFFICE OF PERSONNEL DATE: August 26, 2016
MANAGEMENT,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Mark A. Staples, Albuquerque, New Mexico, pro se.
Kristopher Lee Rogers, 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 of a reconsideration decision of the Office of Personnel
Management (OPM) regarding the calculation of his disability retirement annuity
benefits under the Federal Employees’ Retirement System (FERS). Generally, we
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
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 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).
BACKGROUND
¶2 On November 13, 2012, the appellant retired from the position of Primary
Examiner with the Department of Commerce. Initial Appeal File (IAF), Tab 1
at 1, Tab 2 at 1. He applied for, and obtained, FERS disability retirement annuity
benefits, which were reduced by varying portions of his Social Security disability
benefits. IAF, Tab 2 at 1.
¶3 On September 9, 2013, the appellant filed a Board appeal of an OPM
reconsideration decision finding that he had received an overpayment of the
disability retirement benefits and that he was not eligible for a waiver of the
overpayment. Staples v. Office of Personnel Management, MSPB Docket
No. DE-0845-13-1978-I-1, Initial Appeal File (1978 IAF), Tab 1. After the
appellant and OPM reached a settlement agreement resolving the overpayment
issue, the administrative judge dismissed the appeal as withdrawn. 1978 IAF,
Tab 9, Tab 10, Initial Decision at 1-2.
3
¶4 On August 11, 2014, the appellant filed a Board appeal of OPM’s reduction
of his disability retirement benefits by the amount of his Social Security disability
benefits. Staples v. Office of Personnel Management, MSPB Docket
No. DE-0842-14-0546-I-1, Initial Appeal File (0546 IAF), Tab 1. During a status
conference, the administrative judge informed the appellant that it appeared that
OPM had not issued a reconsideration decision on the relevant matter. 0546 IAF,
Tab 9, Initial Decision at 2. He further informed the appellant that he could
withdraw the appeal, request an annuity computation decision from OPM, and
then later appeal any final decision. Id. at 2-3. The appellant then withdrew his
appeal, which the administrative judge dismissed. Id. at 1, 3.
¶5 In a letter to OPM dated September 22, 2014, the appellant requested that
OPM make an annuity computation decision and argued that his disability
retirement annuity should not be reduced by the amount of his Social Security
disability benefits. IAF, Tab 7 at 4-7. OPM issued an initial decision, and the
appellant requested reconsideration of the initial decision on July 16, 2015. IAF,
Tab 2 at 1, 4. In a reconsideration decision dated November 19, 2015, OPM
affirmed its initial decision and concluded that it had correctly calculated the
appellant’s retirement benefits in accordance with the applicable laws and
regulations under FERS. Id. at 1-5.
¶6 The appellant next filed this Board appeal of the reconsideration decision
and requested a hearing. IAF, Tab 1. OPM filed a motion to dismiss the appeal
because it had rescinded its reconsideration decision and intended to issue a new
final decision after reexamining the appellant’s case as he requested. IAF, Tab 10
at 4, Tab 13 at 3. The appellant objected based, in part, on his poor health and
the harm that would result from further delay. IAF, Tab 11 at 5, Tab 15 at 5,
Tab 16 at 4-5.
¶7 Without holding the requested hearing, the administrative judge issued an
initial decision granting OPM’s motion and dismissing the appeal for lack of
jurisdiction. IAF, Tab 17, Initial Decision (ID) at 1-2. He acknowledged the
4
appellant’s poor health and desire to quickly adjudicate the matter, but found no
basis for Board jurisdiction without a final decision from OPM. ID at 2.
¶8 The appellant has filed a petition for review. Petition for Review (PFR)
File, Tabs 2-5. 2 The agency has filed a response. PFR File, Tab 9.
DISCUSSION OF ARGUMENTS ON REVIEW
¶9 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). The appellant has the burden
of proving the Board’s jurisdiction by a preponderance of the evidence. 3 5 C.F.R.
§ 1201.56(b)(2)(i)(A). The Board has jurisdiction over OPM determinations
affecting an appellant’s rights or interests under FERS after OPM has issued a
final decision, also known as a reconsideration decision. 5 U.S.C. § 8461(e);
5 C.F.R. § 841.308; see Okello v. Office of Personnel Management, 120 M.S.P.R.
498, ¶ 14 (2014) (stating that a reconsideration decision is final and appealable to
the Board). If OPM completely rescinds a reconsideration decision, its rescission
divests the Board of jurisdiction over the appeal in which that reconsideration
decision is at issue, and the appeal must be dismissed. Smith v. Office of
Personnel Management, 113 M.S.P.R. 259, ¶ 6 (2010). However, the Board will
take jurisdiction over an appeal concerning a retirement matter in which OPM has
refused or improperly failed to issue a final decision. Okello, 120 M.S.P.R. 498,
¶ 14.
2
Although the deadline for filing a petition for review was on March 15, 2016, the
Clerk of the Board extended the deadline to March 21, 2016, to give the appellant an
opportunity to perfect his petition for review. PFR File, Tab 1; ID at 2. Therefore, we
grant the appellant’s motion to accept his filings as timely. PFR File, Tabs 2-4, Tab 7.
Although the appellant supplemented his petition for review on March 23, 2016, 2 days
past the deadline, we nevertheless have considered it. PFR File, Tab 5.
3
A preponderance of the evidence is the degree of relevant evidence that a reasonable
person, considering the record as a whole, would accept as sufficient to find that a
contested fact is more likely to be true than untrue. 5 C.F.R. § 1201.4(q).
5
¶10 In his petition for review, the appellant challenges OPM’s purported reasons
for its rescission of the reconsideration decision and the propriety of further
delaying his appeal. Specifically, he challenges OPM’s contentions regarding its
motion to dismiss and alleges that OPM made several misstatements to the Board.
PFR File, Tab 2 at 7-9, 11, 13. First, he argues that OPM mischaracterized the
relevant issue of his appeal as an “overpayment” of retirement benefits instead of
as an “underpayment” of benefits due to OPM’s reduction of his annuity by his
Social Security benefits amount. Id. at 7-9, 11; IAF, Tab 10 at 4, Tab 13 at 3.
Next, he disputes OPM’s claim that the Board already has addressed this issue in
his prior Board appeals. PFR File, Tab 2 at 8, 11; IAF, Tab 13 at 3. Lastly, he
disputes OPM’s allegation that it needs to obtain documents from his employing
agency. PFR File, Tab 2 at 13; IAF, Tab 13 at 3. He surmises that these
misstatements show that OPM’s stated reasons for its rescission are false and that
OPM will not meaningfully review his case. PFR File, Tab 2 at 8, 12‑13.
¶11 The appellant next alleges that OPM unreasonably delayed making a final
decision and that any further delay would be harmful. Specifically, he asserts
that OPM took over 1 year to make a final decision on his request for an annuity
computation decision. 4 Id. at 5-6. He also alleges that OPM could complete the
calculations relevant to making a final decision in less than an hour. Id. at 9. He
further contends that OPM unreasonably delayed making a final decision in
comparison to other agencies. Id. at 14-16. He concludes that these allegations
show that OPM will further delay making a new final decision. Id. at 16. He also
considers the fact that the Board may cite a nonprecedential order to mean that
4
To support this claim, the appellant submits new evidence of an email from OPM
dated November 1, 2014. PFR File, Tab 3 at 4. We decline to consider this evidence
further because he has not shown that the email was unavailable before the record
closed despite his due diligence. See Cleaton v. Department of Justice, 122 M.S.P.R.
296, ¶ 7 (2015) (observing that the Board generally will not consider evidence
submitted for the first time on review absent a showing that, among other things, the
documents and the information contained in the documents were unavailable before the
record closed despite due diligence); 5 C.F.R. § 1201.115(d).
6
the Board could use this nonprecedential final order in a future appeal to support
the same result and that OPM could repeatedly rescind its final decisions. Id.
at 5, 10-11.
¶12 Even assuming the appellant’s allegations are true, we find that they do not
identify a basis for Board jurisdiction. See, e.g., Smith, 113 M.S.P.R. 259, ¶ 6
(finding no Board jurisdiction over OPM’s denial of disability retirement benefits
under FERS after OPM rescinded the reconsideration decision). The appellant
does not dispute OPM’s assertion that it has rescinded its reconsideration decision
and intends to issue a new final decision after reexamining his case. IAF, Tab 10
at 4, Tab 13 at 3. Further, his allegations do not establish that OPM has refused
or improperly failed to issue a final decision. See McNeese v. Office of Personnel
Management, 61 M.S.P.R. 70, 74 (finding that the Board lacked jurisdiction
despite OPM’s alleged 16-month delay in issuing a reconsideration decision
because OPM explained that it had a backlog of cases, which were being
processed on a first-in, first-out basis), aff’d per curiam, 40 F.3d 1250 (Fed. Cir.
1994) (Table); cf. Okello, 120 M.S.P.R. 498, ¶¶ 5-11, 15-16 (finding jurisdiction
when OPM improperly failed to make a final decision on the appellant’s alleged
retirement annuity overpayment within 3 years after rescinding its
reconsideration decision).
¶13 The appellant’s remaining arguments do not provide a reason to disturb the
initial decision. He argues that the administrative judge erroneously applied the
following cases that OPM cited in its motion to dismiss: Frank v. Office of
Personnel Management, 113 M.S.P.R. 164, ¶ 7 (2010); Rorick v. Office of
Personnel Management, 109 M.S.P.R. 597, ¶ 5 (2008); and Glasgow v. Office of
Personnel Management, 103 M.S.P.R. 531, ¶ 5 (2006). PFR File, Tab 2 at 6-9;
ID at 2; IAF, Tab 10 at 4. Specifically, he asserts that these cases establish that
OPM’s motion to dismiss an appeal of a reconsideration decision that it has
rescinded may be granted only when doing so would bestow a benefit on an
appellant or when an appellant does not challenge OPM’s contentions. PFR File,
7
Tab 2 at 8. We do not agree with this interpretation, and find that the
administrative judge properly relied on Frank, 113 M.S.P.R. 164, ¶¶ 7‑8, for its
holding that OPM rescinding its reconsideration decision divested the Board of
jurisdiction over the appeal. ID at 2.
¶14 The appellant further argues that the administrative judge failed to consider
his filings and the factual implications of the poor state of his health. PFR File,
Tab 2 at 4, 13-14. The administrative judge acknowledged the appellant’s health
in the initial decision, but properly found no basis for jurisdiction. ID at 2.
Further, the appellant’s conclusory statement that the administrative judge did not
consider his filings does not provide a reason for review. PFR File, Tab 2 at 4;
see Marques v. Department of Health & Human Services, 22 M.S.P.R. 129, 132
(1984) (finding that the administrative judge’s failure to mention all of the
evidence of record does not mean that she did not consider it in reaching her
decision), aff’d, 776 F.2d 1062 (Fed. Cir. 1985) (Table).
¶15 The appellant, moreover, raises an allegation of disability discrimination for
the first time on review. PFR File, Tab 2 at 12. However, the Board generally
will not consider an argument raised for the first time in a petition for review
absent a showing that it is based on new and material evidence not previously
available despite the party’s due diligence. Banks v. Department of the
Air Force, 4 M.S.P.R. 268, 271 (1980); see 5 C.F.R. § 1201.115(d). In any event,
prohibited personnel practices under 5 U.S.C. § 2302(b) are not an independent
source of Board jurisdiction. 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). Thus, we decline to address
this argument further.
¶16 Finally, the appellant’s arguments on the merits of the appeal are irrelevant
to the jurisdictional issue before the Board. PFR File, Tab 2 at 8 n.1, 11-12; see,
e.g., Sapla v. Department of the Navy, 118 M.S.P.R. 551, ¶ 7 (2012) (finding that
the appellant’s arguments on the merits of her appeal were not relevant to the
jurisdictional question).
8
¶17 Accordingly, we find that the administrative judge properly dismissed this
appeal for lack of jurisdiction. 5 If the appellant is dissatisfied with any
subsequent OPM decision regarding his disability retirement benefits, he may
request that OPM reconsider the decision and, if he is still dissatisfied, he may
appeal OPM’s final decision to the Board. See 5 U.S.C. § 8461(e)(1); Smith,
113 M.S.P.R. 259, ¶ 8; 5 C.F.R. § 841.308. Any future appeal must be filed
within the time limits set forth in the Board’s regulations. See Smith,
113 M.S.P.R. 259, ¶ 8; 5 C.F.R. § 1201.22(b)(1).
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
5
As an alternative to reversing the initial decision, the appellant requests that the Board
compel OPM to make a final decision within 30 days. PFR File, Tab 2 at 17. Although
we lack the authority to make such an order, we encourage OPM to act expeditiously.
See McNeese, 61 M.S.P.R. at 74-75 (finding that, absent Board jurisdiction, the Board
lacks the authority to order OPM to process a request for reconsideration within a
certain period of time).
9
title 5 of the U.S. 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 U.S. 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
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.
