Paula K. Lua v. Office of Personnel Management ( 2014 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
PAULA K. LUA, DOCKET NUMBER
Appellant, SF-0842-14-0650-I-1
v.
OFFICE OF PERSONNEL DATE: September 15, 2014
MANAGEMENT,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL *
Paula K. Lua, Los Angeles, California, pro se.
Roxann 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 her 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
*
A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
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).
BACKGROUND
¶2 The appellant received a March 30, 2014 notice from the Office of
Personnel Management (OPM) of an adjustment in her Federal Employees’
Retirement System (FERS) disability annuity, pursuant to the legal requirement to
adjust the annuity when a FERS disability retiree reaches the age of 62. Initial
Appeal File (IAF), Tab 1 at 8. The appellant submitted a “request for correction”
to OPM concerning the recalculation of benefits and a potentially related Social
Security overpayment issue. Id. at 7. Subsequently, she filed the initial appeal
alleging that OPM had violated her due process rights in recomputing her annuity
benefits and indicating that she had not received a final or reconsideration
decision from OPM. Id. at 3-4. In a subsequent pleading, the appellant alleged
that OPM did not address her challenge regarding the monthly annuity payment
adjustment and stated that she had received a letter from OPM informing her that
the “request for more information was sent to the Reconsideration and Appeals
Unit.” IAF, Tab 3. The appellant included a copy of OPM’s letter dated June 24,
2014. Id. at 4.
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¶3 The administrative judge issued an order to show cause why the Board had
jurisdiction over the appeal, informing the appellant that the Board’s jurisdiction
over FERS retirement matters does not vest until OPM has issued a final decision.
IAF, Tab 2 at 2. OPM filed a motion to dismiss the appeal as it had not issued a
final decision on the overpayment of annuity matter, noting that the appellant’s
file had been in OPM’s Reconsideration Branch to render a final decision, and
that once the instant appeal was resolved, OPM would return the case to the
Reconsideration Branch to address the appellant’s reconsideration request and
other concerns. IAF, Tab 5 at 4. The administrative judge dismissed the appeal
for lack of jurisdiction because OPM had not yet issued a final decision. IAF,
Tab 6, Initial Decision (ID).
DISCUSSION OF ARGUMENTS ON REVIEW
¶4 Generally, the Board has jurisdiction over retirement issues only after OPM
issues a final or reconsideration decision. Johnson v. Office of Personnel
Management, 113 M.S.P.R. 118, ¶ 10 (2010). However, the Board may take
jurisdiction over a retirement appeal in the absence of an OPM reconsideration
decision where the appellant has made repeated requests for such a decision, and
the evidence indicates that OPM does not intend to issue a reconsideration
decision. Id.¶5 On review, the appellant argues that OPM has not responded to her
challenge of the annuity adjustment or request for documentation. The petition
for review, however, misconstrues the final decision requirement for Board
jurisdiction over a retirement appeal by alleging that OPM’s commencement of a
reduction in annuity benefits constituted a final agency decision. Petition for
Review (PFR) File, Tab 1 at 6; see id., Tab 3 at 1.
¶6 We conclude that the appellant has not shown error in the administrative
judge’s finding that the Board lacks jurisdiction over the present appeal. While
there may be some confusion regarding the potentially related Social Security
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overpayment, the appellant has not shown that OPM has issued a final decision on
her annuity recalculation challenge, or has indicated that it does not intend to do
so. In contrast to Johnson, the record here reflects that OPM has notified the
appellant that it intends to issue a reconsideration decision. IAF, Tab 3 at 1, Tab
5 at 4. Moreover, the appellant’s own pleadings indicate that OPM has notified
her that her request was in the Reconsideration Branch for development. IAF,
Tab 3 at 1. The appellant received the initial notice of the recalculation from
OPM in March 2014 and filed her appeal with the Board in June 2014, and thus
there is no indication of excessive delay by OPM. See Easter v. Office of
Personnel Management, 102 M.S.P.R. 568, ¶ 8 (2006) (finding that an 18-month
delay by OPM in addressing appellant’s application indicated a declination to
adjudicate the application). Accordingly, we find the administrative judge
correctly determined that the Board lacks jurisdiction over this retirement appeal
at this juncture.
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).
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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.