Havrilla v. MSPB , 582 F. App'x 881 ( 2014 )


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  •        NOTE: This disposition is nonprecedential.
    United States Court of Appeals
    for the Federal Circuit
    ______________________
    MARIA HAVRILLA,
    Petitioner,
    v.
    MERIT SYSTEMS PROTECTION BOARD,
    Respondent.
    ______________________
    2014-3122
    ______________________
    Petition for review of the Merit Systems Protection
    Board in No. PH-844E-14-0473-I-1.
    ______________________
    Decided: November 7, 2014
    ______________________
    MARIA HAVRILLA, of Scranton, Pennsylvania, pro se.
    LINDSEY SCHRECKENGOST, Attorney, Office of the
    General Counsel, Merit Systems Protection Board, of
    Washington, DC, for respondent. With her on the brief
    was BRYAN G. POLISUK, General Counsel.
    ______________________
    Before DYK, PLAGER, and MOORE, Circuit Judges.
    2                                         HAVRILLA V. MSPB
    PER CURIAM.
    Maria Havrilla appeals from the final decision of the
    Merit Systems Protection Board (MSPB) dismissing for
    lack of jurisdiction her appeal from an Office of Personnel
    Management’s (OPM) decision denying her application for
    disability retirement benefits under the Federal Employ-
    ees Retirement System. Because the MSPB correctly
    determined that it lacked jurisdiction over Ms. Havrilla’s
    appeal, we affirm.
    BACKGROUND
    Ms. Havrilla filed an application with OPM
    requesting that it convert her early retirement from her
    position at the U.S. Department of Justice into a
    disability retirement. OPM issued its initial decision
    informing Ms. Havrilla that her application for disability
    retirement was incomplete and lacked the necessary
    medical evidence and required supporting documentation
    for OPM to make a determination on her claim. OPM
    noted the missing forms in its decision and enclosed
    copies of the missing forms for Ms. Havrilla to complete.
    Ms. Havrilla requested reconsideration of OPM’s initial
    decision and indicated that she would send additional
    information about her disability and requested an
    additional thirty calendar days to do so. Despite affording
    Ms. Havrilla additional time to submit the necessary
    medical and administrative documentation, OPM claimed
    that it did not receive any additional evidence required to
    process the disability application.       OPM issued its
    reconsideration decision sustaining its original decision
    and dismissing Ms. Havrilla’s disability retirement
    application.
    Ms. Havrilla timely appealed OPM’s decision to the
    MSPB. In her appeal Ms. Havrilla alleged that she sent
    OPM additional documentation to support her application
    for disability retirement. Shortly after Ms. Havrilla filed
    her appeal, OPM decided to rescind its reconsideration
    HAVRILLA V. MSPB                                          3
    decision and grant Ms. Havrilla disability benefits and
    thus filed a motion before the MSPB requesting that it
    dismiss Ms. Havrilla’s appeal for lack of jurisdiction.
    According to OPM, it reviewed all the medical evidence
    Ms. Havrilla submitted and determined that she
    submitted sufficient documentation to establish her
    entitlement to disability retirement benefits.
    The administrative judge (AJ) issued an Initial
    Decision granting OPM’s motion and dismissing Ms.
    Havrilla’s appeal for lack of jurisdiction.       The AJ
    determined that OPM’s rescission of its reconsideration
    decision divested the MSPB of jurisdiction over the
    appeal. The Initial Decision became the MSPB’s Final
    Decision because a petition for review was not filed in the
    matter. Ms. Havrilla appeals. We have jurisdiction
    under 28 U.S.C. § 1295(a)(9).
    DISCUSSION
    Whether the MSPB has jurisdiction to adjudicate an
    appeal is a question of law, which we review de novo.
    Forest v. Merit Sys. Prot. Bd., 
    47 F.3d 409
    , 410 (Fed. Cir.
    1995). The appellant bears the burden of establishing the
    MSPB’s jurisdiction by a preponderance of the evidence.
    Kahn v. Dep’t of Justice, 
    528 F.3d 1336
    , 1341 (Fed. Cir.
    2008).
    We find that the MSPB properly dismissed Ms.
    Havrilla’s appeal for lack of jurisdiction. The MSPB’s
    jurisdiction is limited to those matters over which it has
    been specifically granted jurisdiction by a law, rule, or
    regulation. 5 U.S.C. § 7701(a); Prewitt v. Merit Sys. Prot.
    Bd., 
    133 F.3d 885
    , 886 (Fed. Cir. 1998). A final decision of
    OPM “affecting the rights or interests of an individual or
    of the United States” is a jurisdictional prerequisite to a
    MSPB appeal involving a claim under the civil service
    retirement statutes. See 5 U.S.C. §§ 8347(d), 8461(e); 5
    C.F.R. §§ 831.110, 841.308. Absent an OPM final or
    reconsideration decision, the MSPB lacks jurisdiction to
    4                                          HAVRILLA V. MSPB
    review an appellant’s retirement claims. As such, where
    the OPM has rescinded its decision, as it did in this case,
    the rescission divests the MSPB of its jurisdiction. See,
    e.g., Keira v. Merit Sys. Prot. Bd., 396 F. App’x 703, 704
    (Fed. Cir. 2010). While there is a recognized exception to
    this rule, it only applies in cases where it is evident that
    OPM does not intend to issue another final decision. See
    
    id. at 704–05.
    Ms. Havrilla’s appeal is not such a case.
    Here, OPM indicated that upon receipt of the Initial
    Decision, it would “forward the case file to the appropriate
    office to determine the monetary benefit payable.” J.A.
    20. While OPM has not yet processed Mr. Havrilla’s
    disability benefits, we do not find that OPM’s delay in
    granting those benefits suggests that OPM does not
    intend to grant them. Under these circumstances, the
    MSPB properly dismissed Ms. Havrilla’s appeal for lack of
    jurisdiction.
    Ms. Havrilla argues that the MSPB erred by
    dismissing her appeal for lack of jurisdiction without
    deciding whether OPM should be required to waive her
    obligation to repay a separation incentive that she
    received upon her early retirement. We disagree. At the
    time of Ms. Havrilla’s appeal to the MSPB, OPM had
    made no determination regarding waiver of her
    separation incentive. As such, there was no final decision
    from OPM regarding waiver of the separation incentive
    and thus the MSPB did not have jurisdiction over this
    question. See 5 U.S.C. §§ 8347(d), 8461(e); 5 C.F.R.
    §§ 831.110, 841.308. The sole issue before the MSPB was
    whether OPM improperly denied Ms. Havrilla’s
    application for disability retirement benefits and, as a
    result, the MSPB was divested of its jurisdiction when
    OPM rescinded its decision to deny Ms. Havrilla’s
    HAVRILLA V. MSPB                                        5
    application for those benefits. 1
    CONCLUSION
    Because the MSPB correctly determined that it lacked
    jurisdiction over Ms. Havrilla’s appeal, we affirm.
    AFFIRMED
    COSTS
    No costs.
    1   Ms. Havrilla also contends that she never received
    OPM’s motion to dismiss her appeal despite the certificate
    of service showing it was mailed to her; and therefore,
    never had an opportunity to respond. This does not
    change our analysis. Even if Ms. Havrilla never received
    OPM’s motion, she was not harmed by this error in ser-
    vice. OPM rescinded its reconsideration decision, and any
    opposition by Ms. Havrilla would not have changed the
    fact that the Board no longer had jurisdiction over her
    appeal. Keira, 396 F. App’x at 704.
    

Document Info

Docket Number: 14-3122

Citation Numbers: 582 F. App'x 881

Filed Date: 11/7/2014

Precedential Status: Non-Precedential

Modified Date: 1/13/2023