Staples v. MSPB , 684 F. App'x 951 ( 2017 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
MARK A. STAPLES,
Petitioner
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent
______________________
2017-1113
______________________
Petition for review of the Merit Systems Protection
Board in No. DE-0842-16-0117-I-1.
______________________
Decided: April 10, 2017
______________________
MARK A. STAPLES, Albuquerque, NM, 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 WALLACH, CLEVENGER, and SCHALL, Circuit
Judges.
2 STAPLES v. MSPB
PER CURIAM.
Mark A. Staples seeks review of the final decision of
the Merit Systems Protection Board (the “Board”) dis-
missing his appeal of a reconsideration decision of the
Office of Personnel Management (“OPM”) for lack of
jurisdiction. Staples v. Office of Pers. Mgmt., No. DE-
0842-16-0117-I-1, 2016 WL 4547602 (M.S.P.B. Aug. 26,
2016). The Board dismissed Mr. Staples’s appeal of
OPM’s decision concerning the computation of his annuity
because OPM rescinded its decision with the intention to
issue a new, appealable decision. This court affirms.
I
Mr. Staples retired from the position of Primary Ex-
aminer at the U.S. Patent and Trademark Office within
the Department of Commerce on November 13, 2013. He
applied for and was granted Federal Employees Retire-
ment System (“FERS”) disability retirement annuity
benefits, which were reduced by varying portions of his
Social Security disability benefits. On September 22,
2014, Mr. Staples requested that OPM make an annuity
calculation decision, arguing that his disability retirement
annuity should not be reduced by the amount of his Social
Security disability benefits. OPM then issued a decision
rejecting Mr. Staples’s argument and stating that it had
correctly calculated his retirement benefits in accordance
with the applicable laws and regulations. On July 16,
2015, Mr. Staples requested reconsideration of OPM’s
initial decision and on November 19, 2015, OPM issued a
reconsideration decision affirming its initial decision.
On December 16, 2015, Mr. Staples filed an appeal of
OPM’s November 19 reconsideration decision. On Janu-
ary 20, 2016, OPM filed a motion to dismiss, stating that
it had rescinded its reconsideration decision and intended
to issue a new reconsideration decision. The next day,
Mr. Staples filed a response, arguing that OPM’s rescis-
sion of the reconsideration decision should not strip the
STAPLES v. MSPB 3
Board of jurisdiction over his appeal. However, his re-
sponse did not assert any additional independent source
of Board jurisdiction over his appeal. On February 9,
2016, the administrative judge issued an initial decision
dismissing Mr. Staples’s appeal for lack of jurisdiction
because the agency’s rescission of its reconsideration
decision with intent to issue a new decision divested the
Board of jurisdiction. On August 26, 2016, the Board
affirmed the February 9, 2016 initial decision and adopted
it as the final decision of the Board. The Board agreed
with the administrative judge’s finding that the Board
lacked jurisdiction over an appeal where OPM rescinded
its reconsideration decision. The Board rejected the
remainder of Mr. Staples’s arguments, finding that none
of them affected its jurisdictional holding.
Mr. Staples timely appealed to this court. We have
jurisdiction pursuant to 28 U.S.C. § 1295(a)(9).
II
This court will affirm the Board’s decision unless it is
arbitrary, capricious, an abuse of discretion, or otherwise
not in accordance with law; obtained without required
procedure; or unsupported by substantial evidence. 5
U.S.C. § 7703(c); 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 deference. 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. A decision of OPM concerning FERS
benefits constitutes a final decision if it is a reconsidera-
tion 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 reconsideration decision divests
4 STAPLES v. MSPB
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).
However, the Board will assert jurisdiction over an appeal
concerning a retirement matter 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 Board’s jurisdiction by a prepon-
derance of the evidence. 5 C.F.R. § 1201.56(b)(2)(i)(A);
Forest, 47 F.3d at 410.
On appeal, Mr. Staples makes several arguments as
to why the Board should hear his case. First, he alleges
that the Board erred in relying on Frank v. Office of
Personnel Management to find that it lacks jurisdiction
over his appeal. Mr. Staples argues that Frank is factual-
ly distinct from his case and thus it should not have been
considered as precedent. Next, Mr. Staples contends that
OPM made misrepresentations to the Board about its
consideration of the case. These misrepresentations
specifically include its statements that it needed to obtain
more documents from Mr. Staples and that an issue in the
case was overpayment. Finally, Mr. Staples alleges that
he has been denied due process and equal protection in
his appeal. He contends that he was denied his right to a
hearing at the Board and thus was unable to meaningful-
ly participate in his appeal. He also alleges generally that
disabled Federal retirees are not granted due process and
equal protection before OPM. We address Mr. Staples’s
arguments in turn.
First, the Board did not err in relying on Frank for the
rule that OPM’s complete rescission of a reconsideration
decision terminates the Board’s jurisdiction over an
appeal of that decision. The Board relied on Frank for the
rule it identifies and not as a factual comparison. Thus,
STAPLES v. MSPB 5
Mr. Staples’s argument that the Board improperly consid-
ered the facts of Frank is without merit.
In this case, the Board properly relied on the rule set
forth in Frank (and multiple other Board decisions) to
find that OPM’s letter rescinding its decision divested the
Board of its jurisdiction over Mr. Staples’s appeal. See
Frank, 113 M.S.P.R. at 166 (“If OPM completely rescinds
a reconsideration decision, its rescission divests the Board
of jurisdiction over the appeal in which that reconsidera-
tion decision is at issue, and the appeal must be dis-
missed.”); see also Rorick v. Office of Pers. Mgmt., 109
M.S.P.R. 597, 599 (2008) (same); Glasgow v. Office of Pers.
Mgmt., 103 M.S.P.R. 531, 533 (2006) (same). This court
has repeatedly endorsed that rule. See, e.g., Keira, 396 F.
App’x at 704 (“If OPM completely rescinds a reconsidera-
tion decision, the Board no longer has jurisdiction over
the appeal in which that decision is at issue and must
dismiss the appeal.”); Nebblett v. Office of Pers. Mgmt.,
237 F.3d 1353, 1356 (Fed. Cir. 2001) (same); Snyder v.
Office of Pers. Mgmt., 136 F.3d 1474, 1476 (Fed. Cir. 1998)
(same). On January 20, 2016, OPM sent a letter to the
administrative judge in this case stating that “OPM
hereby rescinds its final decision of November 19, 2015,
decision. . . . OPM will take another look at the overpay-
ment in question and render a new decision and give
appeal rights accordingly.” Respondent’s Supp. App’x 21.
This letter is a clear statement indicating that OPM
completely rescinded its decision, thereby divesting the
Board of jurisdiction.
Mr. Staples’s arguments about OPM’s alleged misrep-
resentations to the Board, even if true, do not identify a
basis for Board jurisdiction. See, e.g., Smith v. Office of
Pers. Mgmt., 113 M.S.P.R. 259, 261 (2010) (finding that
the Board lacked jurisdiction over OPM’s denial of disabil-
ity retirement benefits under FERS because OPM re-
scinded the reconsideration decision, despite appellant’s
complaint of a delay in receiving his benefits). Mr. Sta-
6 STAPLES v. MSPB
ples does not dispute that OPM rescinded its reconsidera-
tion decision and intends to issue a new final decision
after reexamining his case. Additionally, Mr. Staples fails
to allege that OPM refused or improperly failed to issue a
final decision. See McNeese, 61 M.S.P.R. at 74 (finding
that the Board lacked jurisdiction over an appeal despite
OPM’s alleged 16-month delay in issuing a reconsidera-
tion decision because OPM explained that it had a backlog
of cases). Mr. Staples may, if he chooses, make these
arguments regarding OPM’s statements after OPM issues
its new decision but this court will not consider them
here.
Finally, we find Mr. Staples’s remaining arguments
regarding due process and equal protection unpersuasive.
Mr. Staples complains that he was denied a hearing, but
the Board’s rules permit a hearing on the merits only if
the Board has jurisdiction over an appeal. 5 C.F.R.
§ 1201.24(d). Because the Board lacked jurisdiction here,
Mr. Staples was not entitled to a hearing. Besides being
denied a hearing, Mr. Staples has not offered any details
as to how his appeal was affected by his age, disability,
health, or pro se status.
CONCLUSION
Our opinion today does not mean that Mr. Staples’s
claim to his disability retirement annuity benefits has
been denied. Because OPM rescinded its initial decision,
the Board was required to dismiss Mr. Staples’ appeal to
allow OPM to reconsider his case. If Mr. Staples does not
agree with OPM’s decision upon reconsideration, he may
file a new appeal at the Board. Because we agree with
the Board that OPM’s rescission of its reconsideration
decision divested the Board of jurisdiction, this court
affirms the Board’s dismissal of Mr. Staples’s appeal for
lack of jurisdiction.
AFFIRMED
STAPLES v. MSPB 7
COSTS
No Costs.