Manuel L. Mora v. Office of Personnel Management ( 2014 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
MANUEL L. MORA, DOCKET NUMBER
Appellant, SF-0831-10-0240-I-1
v.
OFFICE OF PERSONNEL DATE: September 16, 2014
MANAGEMENT,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Rufus F. Nobles, Zambales, Philippines, for the appellant.
Wanda D. Underwood, 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 appeal of the Office of Personnel Management’s (OPM)
reconsideration decision for lack of jurisdiction. Generally, we grant petitions
such as this one only when: the initial decision contains erroneous findings of
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
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
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). We FORWARD the appellant’s submissions to the Western
Regional Office for docketing as a new appeal with OPM as the responding party.
¶2 The appellant served with the U.S. Navy at Subic Bay, Philippines, from
July 2, 1959, through August 15, 1980. See Initial Appeal File (IAF), Tab 1 at 7.
At some point, he submitted a request to OPM, seeking to make a deposit for that
service, for the purpose of retirement. Id. OPM determined that he was not
eligible to make a deposit for this service and, therefore, denied the request. Id.
In February 2008, the appellant requested reconsideration. Id. OPM issued its
reconsideration decision in October 2009, again denying the appellant’s request
to submit a deposit for his service. 2 Id.
¶3 In December 2009, the appellant filed this appeal of OPM’s reconsideration
decision. IAF, Tab 1. OPM responded to the appeal by rescinding the
reconsideration decision of record, indicating that it would issue a new one at a
later date. IAF, Tab 4 at 2. Therefore, OPM moved to dismiss the appeal for lack
of Board jurisdiction. Id. Subsequently, the administrative judge dismissed the
2
Although it contains the reconsideration decision, the record does not contain the
appellant’s initial request to OPM or OPM’s initial denial.
3
appeal, citing OPM’s rescission of its reconsideration decision. IAF, Tab 5,
Initial Decision (ID) at 2.
¶4 In February 2014, more than 4 years after OPM rescinded its
reconsideration decision and the administrative judge dismissed his appeal for
lack of jurisdiction, the appellant submitted a letter to the Clerk of the Board.
Petition for Review (PFR) File, Tab 1 at 1. He did not present any argument or
evidence that the initial decision was erroneous, but instead, asked for the Board
to exercise its authority. Id. According to the appellant, despite the lengthy
delay and his repeated attempts to follow-up, OPM has yet to issue a
reconsideration decision. Id. The letter was construed as a petition for review
and forwarded to OPM’s representative of record. PFR File, Tab 2 at 1, 5. OPM
did not file a response.
¶5 In July 2014, the Board sent OPM a show cause order. PFR File, Tab 5.
The order directed OPM to submit evidence that it issued a new reconsideration
decision in the appellant’s case, or explain the failure to do so, within 20 days. 3
Id. at 2. OPM never filed a response.
¶6 To the extent that the appellant’s submission is a petition for review of the
initial decision that dismissed his appeal for lack of Board jurisdiction, the
appellant has not shown that the administrative judge erred. 4 See 5 C.F.R.
§ 1201.115. In general, an OPM reconsideration decision is a prerequisite to
Board jurisdiction in a retirement appeal. McNeese v. Office of Personnel
Management, 61 M.S.P.R. 70, 73-74, aff’d, 40 F.3d 1250 (Fed. Cir. 1994)
(Table). Because OPM rescinded its reconsideration decision on January 11,
3
The petition for review was electronically served on the agency through the
representative of record, Wanda Underwood. PFR File, Tab 2 at 5. Recognizing, given
the passage of time, the possibility that Ms. Underwood’s electronic address may no
longer be valid, resulting in the agency’s inability to respond to the petition for review,
the show cause order also was routed to OPM’s General Counsel. PFR File, Tab 5 at 3.
4
It is unnecessary to address the timeliness of the appellant’s petition for review under
these circumstances. See Blade v. Office of Personnel Management, 97 M.S.P.R. 92,
¶ 6 (2004).
4
2010, IAF, Tab 4 at 2, the administrative judge properly dismissed the appellant’s
appeal for lack of jurisdiction on January 12, 2010, ID at 2.
¶7 Although the appellant has shown no error in the administrative judge’s
dismissal for lack of jurisdiction at that time, the Board may take jurisdiction
over an initial OPM decision if OPM has refused to issue a reconsideration
decision. See McNeese, 61 M.S.P.R. at 74. Under the circumstances, it appears
that the appellant has now raised a nonfrivolous allegation of jurisdiction based
on his assertion that OPM has failed to issue a reconsideration decision, despite
his repeated requests, after a delay of more than 4 years. See PFR File, Tab 1
at 1; see also Blade, 97 M.S.P.R. 92, ¶¶ 6, 9 (forwarding a petition for review for
docketing as a new appeal because OPM had not issued a reconsideration decision
a year and a half after the initial decision dismissed the appeal for lack of
jurisdiction due to the absence of a reconsideration decision).
¶8 Accordingly, we FORWARD the appellant’s submissions to the Western
Regional Office for docketing as a new retirement appeal with OPM as the
responding party.
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
5
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.