Jones v. MSPB , 621 F. App'x 626 ( 2015 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
MICHAEL R. JONES,
Petitioner
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent
______________________
2015-3043
______________________
Petition for review of the Merit Systems Protection
Board in No. SF-3443-13-4830-I-1.
______________________
Decided: July 13, 2015
______________________
MICHAEL R. JONES, Corona, CA, pro se.
CALVIN M. MORROW, Office of the General Counsel,
United States Merit Systems Protection Board, Washing-
ton, DC, for respondent. Also represented by BRYAN G.
POLISUK.
______________________
Before MOORE, SCHALL, and O’MALLEY, Circuit
Judges.
2 JONES v. MSPB
PER CURIAM.
DECISION
Michael R. Jones petitions for review of the final deci-
sion of the Merit Systems Protection Board (“Board”) that
dismissed his appeal for lack of jurisdiction. Jones v.
Dep’t of Agriculture, No. SF-3443-13-4830-I-1 (M.S.P.B.
Sept. 29, 2014) (“Final Decision”). We affirm.
DISCUSSION
I.
In August 2013, Mr. Jones retired from his position as
an Information Assistant with the Department of Agricul-
ture (“agency”). Mr. Jones previously had held the posi-
tion of Firefighter/Forestry Technician. He sustained a
workplace injury in July 1993, however. Eventually that
injury led to his reassignment to the Information Assis-
tant position in 2004.
In September 2013, Mr. Jones filed an appeal with the
Board in which he challenged the agency’s processing of
his retirement application. Among other things, he
objected to the agency’s summary of his service and his
work experience for the part of the application relating to
firefighter/law enforcement retirement benefits. Accord-
ing to Mr. Jones, the summary was inaccurate because
the position descriptions to which it referred did not
match the Fire Engine Operator position he had held.
Mr. Jones also claimed that, in connection with his re-
tirement application, the agency ignored the cancellation
of his removal from the service in 1997, that it used the
wrong dates for the period when he received Office of
Workers Compensation benefits, and that it ignored his
approval for disability retirement in 1997. He also al-
leged that the agency ignored the fact that the position he
held at the time of his injury in 1993 was noncompetitive-
ly upgraded to a GS-7 level. Finally, he asserted that the
agency failed to include in his application package his
JONES v. MSPB 3
submission of more than 284 pages of corrections and
correspondence that he believed were relevant to the
application. In short, Mr. Jones claimed that he could be
prejudiced by the agency’s mishandling of his retirement
application.
On February 19, 2014, the administrative judge (“AJ”)
to whom the appeal was assigned issued an initial deci-
sion dismissing the appeal for lack of jurisdiction. Jones
v. Dep’t of Agriculture, No. SF-3443-13-4830-I-1 (M.S.P.B.
Feb. 19, 2014) (“Initial Decision”). With respect to Mr.
Jones’s claims concerning retirement benefits, the AJ
found that Mr. Jones had failed to establish that the
Office of Personnel Management (“OPM”) had issued a
final decision on his claims so as to give him the right to
appeal to the Board pursuant to 5 C.F.R. § 831.110. Id. at
5. The AJ also found that, to the extent Mr. Jones was
attempting to appeal an alleged denial of his request for
law enforcement benefits pursuant to 5 C.F.R. §§ 831.906and 831.910, he had failed to show that either the agency
or OPM had issued a final decision on his request. Id. at
6. The AJ also determined that none of the other various
complaints raised by Mr. Jones provided grounds for
Board jurisdiction.
Mr. Jones petitioned for review of the Initial Decision.
In its Final Decision, the Board denied the petition and
affirmed the Initial Decision. The Board first explained
that it has jurisdiction to adjudicate an individual’s rights
and interests under the Civil Service Retirement System
(CSRS) only after OPM has rendered a final or reconsid-
eration decision on the issue in question. Final Decision
at 3. Noting that Mr. Jones was asserting a violation of
his rights regarding the processing of his CSRS retire-
ment application through an appeal brought against his
employing agency, the Board pointed out that such an
appeal must be filed against “OPM and not the employing
agency.” Id. at 3–4. “The appellant,” the Board stated,
“must pursue the matter with OPM and obtain a final
4 JONES v. MSPB
OPM decision before filing an appeal to the Board.” Id. at
4.
Continuing, the Board stated that, “[u]nder 5 C.F.R.
§ 831.910, the final decision of an agency head issued
under CSRS on a request for law enforcement/firefighter
treatment may be appealed to the Board.” Id. The Board
pointed out, however, that Mr. Jones had submitted the
agency’s August 2013 letter to OPM certifying that he
qualified for law enforcement/firefighter benefits. Id. The
Board also pointed out that there was no evidence that
either the agency or OPM had issued a final decision as to
this type of claim. Id. The Board concluded that it there-
fore lacked jurisdiction over such a claim, stating:
The appellant has not submitted evidence or ar-
gument that would support the exercise of juris-
diction over his claims concerning the processing
of his retirement application on any other basis.
Accordingly, we find that the administrative judge
correctly determined that the Board does not have
jurisdiction over the appellant’s claims concerning
the processing of his retirement application.
Id. The Board thus denied Mr. Jones’s petition for review
and affirmed the Initial Decision, thereby making the
Initial Decision the final decision of the Board. This
appeal followed. We have jurisdiction pursuant to 28
U.S.C. § 1295(a)(9).
II.
Our scope of review in an appeal from a decision of
the Board is limited. We must affirm the Board’s decision
unless we find it to be (1) arbitrary, capricious, an abuse
of discretion, or otherwise not in accordance with law; (2)
obtained without procedures required by law, rule, or
regulation having been followed; or (3) unsupported by
substantial evidence. 5 U.S.C. § 7703(c); Kewley v. Dep’t
JONES v. MSPB 5
of Health & Human Servs., 153 F.3d 1357, 1361 (Fed. Cir.
1998).
III.
The Board’s jurisdiction is limited to actions made
subject to its review by specific law, rule, or regulation.
Monasteri v. Merit Sys. Prot. Bd., 232 F.3d 1376, 1378
(Fed. Cir. 2000). The Board’s authority to review claims
under the CSRS, 5 U.S.C., Chapter 83, Subchapter III, is
granted by 5 U.S.C. § 8347(d)(1), which provides in perti-
nent part as follows:
[A]n administrative action or order affecting the
rights of an individual or of the United States un-
der this subchapter may be appealed to the Merit
Systems Protection Board under procedures pre-
scribed by the Board.
Under 5 U.S.C. § 8347(a), the administration of Subchap-
ter III is assigned to OPM. By regulation, a reconsidera-
tion or final decision by OPM concerning an individual’s
rights under the subchapter may be appealed by the
affected individual to the Board. 5 C.F.R. §§ 831.109,
831.110. See Miller v. Office of Pers. Mgmt., 449 F.3d
1374, 1382 (Fed. Cir. 2006) (the CSRS requires that a
claim under the retirement statutes be first adjudicated
in a decision by OPM, which may then be appealed to the
Board). At the same time, pursuant to 5 C.F.R. § 831.910,
an employee may appeal to the Board from a final deci-
sion of an agency head or OPM concerning a request by
the employee for a determination of the eligibility of the
employee’s service for law enforcement officer/firefighter
treatment for purposes of retirement benefits.
On appeal, Mr. Jones does not dispute that OPM has
not issued a final decision on his claims concerning the
agency’s record of his service for purposes of his retire-
ment application. Rather, he is concerned that the agen-
cy’s handling of his retirement application might
6 JONES v. MSPB
prejudice any eventual final decision. Thus, the Board did
not err in finding that it lacked jurisdiction over Mr.
Jones’s claims of inaccuracies in his retirement record.
Nor does Mr. Jones challenge the decision of the Board
that there is no evidence that either the agency or OPM
has issued a final decision on a claim by him relating to
entitlement to a law enforcement/firefighter annuity.
Accordingly, the Board also did not err in holding that it
lacked jurisdiction over any such claim. Mr. Jones makes
several other arguments on appeal. We have considered
them all and find them to be without merit.
IV.
For the foregoing reasons, the Final Decision of the
Board is affirmed.
AFFIRMED
No Costs.