Relorcasa v. Office of Personnel Management , 184 F. App'x 965 ( 2006 )

NOTE: Pursuant to Fed. Cir. R. 47.6, this disposition
is not citable as precedent. It is a public record.
United States Court of Appeals for the Federal Circuit
06-3086
ANITA R. RELORCASA,
Petitioner,
v.
OFFICE OF PERSONNEL MANAGEMENT,
Respondent.
___________________________
DECIDED: June 8, 2006
___________________________
Before MICHEL, Chief Judge, PLAGER, Senior Circuit Judge, and BRYSON, Circuit
Judge.
PER CURIAM.
DECISION
Anita R. Relorcasa petitions this court for review of a decision of the Merit
Systems Protection Board, Docket No. SF-0831-05-0379-1-1, dismissing her appeal for
lack of jurisdiction. Because we agree that the Board has no jurisdiction to review initial
decisions of the Office of Personnel Management (“OPM”), we affirm.
BACKGROUND
Ms. Relorcasa worked as a civilian employee for the Department of the Navy in
the Philippines from September 1950 until her retirement in May 1982. She applied for
deferred annuity benefits under the Civil Service Retirement System (“CSRS”), but was
informed by OPM, in a letter dated December 17, 2004, that she had “never served in a
position subject to the Civil Service Retirement Act” and therefore was not entitled to a
civil service annuity. OPM’s letter also explained that it was an “initial decision” and that
if she believed the decision to disallow her claim was not in accordance with law and
regulation, she could request reconsideration of the decision by following procedures
described in the package that was sent to her.
Instead of seeking reconsideration and obtaining a final OPM decision, Ms.
Relorcasa filed an appeal with the Merit Systems Protection Board from OPM’s initial
decision. The administrative judge assigned to the case ordered Ms. Relorcasa to show
that OPM had issued a final decision that would give the Board jurisdiction over her
appeal. Ms. Relorcasa responded to the administrative judge’s order, but did not
directly address the question whether she had received a final decision on her claim.
OPM argued that, because it had issued only an initial decision and not a final
reconsideration decision, the Board lacked jurisdiction over the appeal. The
administrative judge concluded that there was “no evidence that OPM has issued a final
decision on [Ms. Relorcasa’s] request for a retirement annuity.” Noting that OPM
regulations require that an “individual may . . . appeal to the Board only from a final
decision by OPM,” the administrative judge dismissed Ms. Relorcasa’s appeal for lack
of jurisdiction. The full Board denied Ms. Relorcasa’s subsequent petition for review,
but noted that OPM had “represented below that it would issue a final reconsideration
decision upon dismissal of this appeal” and that Ms. Relorcasa may file a new appeal
with the Board “[i]f that final reconsideration is unfavorable.”
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DISCUSSION
On appeal, Ms. Relorcasa argues that she was not required to seek
reconsideration by OPM because, under the terms of the initial decision, she was
required to request reconsideration only if she “believe[d] that the decision to disallow
[her] claim was not in accordance with law and regulation.” She asserts that she “did
not deemed [sic] the initial decision as not in accordance with law and regulation” and
thus “did not initiate reconsideration.” Yet in her appeal to the Board, Ms. Relorcasa
made it clear that she was challenging OPM’s conclusion, based on the pertinent
statutes and regulations, that she was not eligible for a deferred annuity.
In any event, OPM’s regulations are clear that appeals to the Board are available
only to individuals who are “affected by a final decision” of OPM. 5 C.F.R. § 831.110;
see Prewitt v. Merit Sys. Prot. Bd., 133 F.3d 885, 886 (Fed. Cir. 1998) (“The Board's
jurisdiction is not plenary; rather, it is limited to actions designated as appealable to the
Board ‘under any law, rule, or regulation.’”). OPM’s December 17, 2004, letter to Ms.
Relorcasa expressly stated that it “constitutes the initial decision of the Office of
Personnel Management” and that a request for reconsideration could be made “by
following the procedures in the enclosure.” Ms. Relorcasa has acknowledged in her
submissions to this court that she “did not initiate reconsideration.” The Board therefore
lacked jurisdiction over her claim and properly dismissed her appeal on that ground.
Ms. Relorcasa alleges, apparently for the first time, that she did not receive the
enclosures referred to in OPM’s initial decision. There is, however, no evidence in the
record to support that allegation. Documents provided by OPM indicate that two pages,
entitled “Information and Instructions on Your Reconsideration Rights,” were included
06-3086 3
with the December 17, 2004, letter from OPM. Additionally, that letter is marked
“Enclosure” near the bottom left hand corner of the page. Moreover, in her letter of
appeal to the Board, Ms. Relorcasa did not argue that OPM failed to include enclosures;
rather, she stated that she was appealing OPM’s decision “to the MSPB, instead of
pursuing a reconsideration from OPM.” Ms. Relorcasa’s contention is therefore
unpersuasive.
We also find that the Board was correct to dismiss the case, rather than remand
Ms. Relorcasa’s appeal to OPM for reconsideration. When the Board lacks jurisdiction
over a matter, it also lacks the authority to refer the matter to another forum. Brady v.
Dep’t of Treasury, 94 M.S.P.R. 439, 442 (2003). We point out, however, that the Board
advised Ms. Relorcasa that OPM would be willing to issue a final reconsideration
decision upon dismissal of the appeal and that such a decision could be appealed to the
Board. Thus, an avenue remains open for Ms. Relorcasa to obtain review of OPM’s
decision. In this proceeding, however, the Board properly dismissed the appeal for lack
of jurisdiction.
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