Tikhonov v. MSPB , 688 F. App'x 927 ( 2017 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
NIKOLAY TIKHONOV,
Petitioner
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent
______________________
2017-1374
______________________
Petition for review of the Merit Systems Protection
Board in No. DC-0842-16-0336-I-1.
______________________
Decided: May 10, 2017
______________________
NIKOLAY TIKHONOV, Gaithersburg, MD, pro se.
STEPHEN FUNG, Office of the General Counsel, Merit
Systems Protection Board, Washington, DC, for respond-
ent. Also represented by BRYAN G. POLISUK, KATHERINE
M. SMITH.
______________________
Before NEWMAN, SCHALL, and WALLACH, Circuit Judges.
2 TIKHONOV v. MSPB
PER CURIAM.
DECISION
Nikolay Tikhonov petitions for review of the final de-
cision of the Merit Systems Protection Board (“Board”)
that dismissed for lack of jurisdiction his appeal of a final
decision of the Office of Personnel Management (“OPM”
or “agency”). See Tikhonov v. Office of Pers. Mgmt.
(MSPB Final Decision), Case No. DC-0842-16-0336-I-1,
2016 WL 6212348 (M.S.P.B. Oct. 21, 2016). The Board
dismissed Mr. Tikhonov’s appeal because OPM rescinded
its final decision with the stated intention of issuing a
new, appealable reconsideration decision. We affirm.
DISCUSSION
I.
On September 1, 2015, Mr. Tikhonov filed an applica-
tion with OPM for a deferred retirement annuity under
the Federal Employees Retirement System (“FERS”). On
January 5, 2016, OPM sent Mr. Tikhonov a letter stating
that his application was denied because he was not yet
eligible to receive a retirement annuity under FERS. The
letter informed Mr. Tikhonov that it constituted the
agency’s final decision in the matter and that Mr.
Tikhonov now had the right to appeal to the Board. Mr.
Tikhonov appealed OPM’s decision to the Board on Feb-
ruary 8, 2016. Subsequently, on April 11, 2016, OPM
moved to dismiss Mr. Tikhonov’s appeal. In its motion,
OPM stated that it was rescinding its January 5, 2016
final decision and that it intended to issue a new, appeal-
able reconsideration decision. On April 13, 2016, the
administrative judge (“AJ”) to whom the appeal was
assigned issued an initial decision dismissing Mr.
Tikhonov’s appeal for lack of jurisdiction. See Tikhonov v.
Office of Pers. Mgmt., Case No. DC-0842-16-0336-I-1,
2016 WL 1580250 (M.S.P.B. Apr. 13, 2016). The AJ
determined that the agency’s rescission of its final deci-
TIKHONOV v. MSPB 3
sion with the intent to issue a new, appealable reconsid-
eration decision divested the Board of jurisdiction over
Mr. Tikhonov’s appeal. Id.
On May 14, 2016, Mr. Tikhonov petitioned the Board
for review of the AJ’s initial decision. In addition to
challenging the AJ’s dismissal of his appeal for lack of
jurisdiction, he argued that OPM had erred in denying his
application for retirement benefits. He also argued that
that the AJ had committed two errors: first, denying him
a hearing on the merits of his appeal; and second, not
requiring OPM to submit all the documentation required
by regulation with its “agency file,” such as his pay stubs.
On October 21, 2016, the Board issued a final order
denying Mr. Tikhonov’s petition for review. In its final
order, the Board affirmed the AJ’s initial decision and
adopted the initial decision as the final decision of the
Board. MSPB Final Decision, 2016 WL 6212348, at *1.
In its final order, the Board agreed with the AJ that
OPM’s rescission of its final decision with the intention of
issuing a new appealable reconsideration decision divest-
ed the Board of jurisdiction over Mr. Tikhonov’s appeal.
As a result, the Board did not reach the merits of Mr.
Tikhonov’s claim to a deferred retirement annuity under
FERS. The Board did, however, address the two addi-
tional arguments raised by Mr. Tikhonov. With respect to
Mr. Tikhonov’s argument that the AJ improperly denied
him a hearing on the merits of his appeal, the Board
stated that he was not entitled to such a hearing because
OPM’s unrebutted contentions regarding rescission of its
final decision were sufficient to show that the Board
lacked jurisdiction over the appeal. Id. at *2. Regarding
Mr. Tikhonov’s argument relating to missing documents,
the Board determined that any error in the agency’s
failure to submit certain documentation was harmless. In
the Board’s view, the alleged missing documentation
related only to the merits of the appeal and thus had no
bearing on the issue of jurisdiction. Id.
4 TIKHONOV v. MSPB
Following the Board’s final decision, Mr. Tikhonov
timely sought review in this court. We have jurisdiction
pursuant to 28 U.S.C. § 1295(a)(9) (2012).
II.
Our scope of review in an appeal form a decision of
the Board is limited. Specifically, we must affirm the
Board’s decision unless it is arbitrary, capricious, an
abuse of discretion, or otherwise not in accordance with
law; obtained without procedures required by law, rule, or
regulation having been followed; or unsupported by
substantial evidence. 5 U.S.C. § 7703(c) (2012); Ellison v.
Merit Sys. Prot. Bd., 7 F.3d 1031, 1034 (Fed. Cir. 1993).
The Board’s dismissal of an appeal for lack of jurisdiction
presents an issue of law that we review without defer-
ence. Forest v. Merit Sys. Prot. Bd., 47 F.3d 409, 410
(Fed. Cir. 1995).
The Board has jurisdiction over OPM determinations
affecting an appellant’s rights or interests under FERS
after OPM has issued a final decision. 5 U.S.C. § 8461(e);
5 C.F.R. § 841.308 (2016). A decision of OPM concerning
FERS benefits constitutes a final decision if it is a recon-
sideration decision or an initial decision designated as a
final decision. 5 C.F.R. §§ 841.306, 307; Havrilla v. Merit
Sys. Prot. Bd., 582 F. App’x 881, 882 (Fed. Cir. 2014).
OPM’s complete rescission of a final/reconsideration
decision divests the Board of jurisdiction over an appeal,
and the appeal must be dismissed. Keira v. Merit Sys.
Prot. Bd., 396 F. App’x 703, 704 (Fed. Cir. 2010) (citing
Nebblett v. Office of Pers. Mgmt., 237 F.3d 1353, 1356
(Fed. Cir. 2001)); Frank v. Office of Pers. Mgmt., 113
M.S.P.R. 164, 166 (2010). The Board will assert jurisdic-
tion over an appeal concerning a retirement matter,
however, where OPM has refused or improperly failed to
issue a final decision. McNeese v. Office of Pers. Mgmt.,
61 M.S.P.R. 70, 74, aff’d, 40 F.3d 1250 (Fed. Cir. 1994)
(Table). The appellant has the burden of proving the
TIKHONOV v. MSPB 5
Board’s jurisdiction by a preponderance of the evidence. 5
C.F.R. § 1201.56(b)(2)(i)(A); Forest, 47 F.3d at 410.
III.
The Board did not err in dismissing Mr. Tikhonov’s
appeal for lack of jurisdiction. The record shows that
OPM completely rescinded its January 5, 2016 final
decision and that it did so with the express intention of
issuing a new, appealable reconsideration decision. There
is no evidence in the record indicating that OPM will
refuse to issue a new decision. At the same time, there is
no indication that Mr. Tikhonov will not be able to obtain
an adjudication of his claim upon issuance of OPM’s new
decision. The Board’s dismissal of Mr. Tikhonov’s appeal
was in accordance with law.
Mr. Tikhonov makes several arguments on appeal.
First, he contends that the AJ erred in dismissing his
appeal as moot. Mr. Tikhonov is mistaken, however. The
AJ did not dismiss his appeal as moot. Rather, he dis-
missed the appeal for lack of jurisdiction. As we have just
stated, that ruling was correct. Next, Mr. Tikhonov
argues at length that OPM erred in denying his applica-
tion for a deferred retirement annuity under FERS.
Because OPM withdrew its final decision denying Mr.
Tikhonov’s claim to an annuity, however, both the AJ and
the Board properly declined to consider the merits of the
claim. If OPM issues a new reconsideration decision
denying his claim, Mr. Tikhonov will have the opportunity
to appeal that denial to the Board. Finally, as he did
before the Board, Mr. Tikhonov urges that the AJ improp-
erly denied him a hearing on the merits of his appeal and
that the AJ erred in not requiring OPM to submit all the
documentation required by regulation with its “agency
file,” such as his pay stubs. In view of the fact that it
lacked jurisdiction over Mr. Tikhonov’s appeal, the Board
did not err in rejecting these arguments, both of which
raise matters pertinent to the merits of Mr. Tikhonov’s
6 TIKHONOV v. MSPB
claim. Again, if OPM issues a new reconsideration deci-
sion denying his claim, Mr. Tikhonov will have the oppor-
tunity to appeal that denial to the Board. In any such
appeal, Mr. Tikhonov will be able to argue to the AJ that
he is entitled to a hearing. He also will be able to argue to
the AJ that OPM has failed to submit all required docu-
ments with its “agency file.”
CONCLUSION
Because we agree with the Board that OPM’s rescis-
sion of its January 5, 2016 final decision divested the
Board of jurisdiction, we affirm the Board’s dismissal of
Mr. Tikhonov’s appeal for lack of jurisdiction. Our deci-
sion does not mean, however, that Mr. Tikhonov’s claim to
a deferred retirement annuity under FERS has been
denied. Because OPM rescinded its final decision with
the express intention of issuing a new reconsideration
decision, the Board was required to dismiss Mr.
Tikhonov’s appeal in order to allow OPM to reconsider his
claim. If Mr. Tikhonov does not agree with OPM’s deci-
sion upon reconsideration, he may file a new appeal with
the Board.
AFFIRMED
COSTS
No costs.