Adams v. Office of Personnel Management , 144 F. App'x 872 ( 2005 )

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
05-3141
RODOLFO H. ADAMS,
Petitioner,
v.
OFFICE OF PERSONNEL MANAGEMENT,
Respondent.
___________________________
DECIDED: August 5, 2005
___________________________
Before SCHALL, Circuit Judge, ARCHER, Senior Circuit Judge, and BRYSON, Circuit
Judge.
PER CURIAM.
DECISION
Petitioner Rodolfo H. Adams seeks review of a decision of the Merit System
Protection Board, Docket No. SE-0831-04-0104-I-1, affirming in part, vacating in part,
and remanding a decision of the Office of Personnel Management (“OPM”). OPM’s
decision had denied Mr. Adams’s claim for survivor benefits under the Civil Service
Retirement System (“CSRS”). Because we lack jurisdiction to consider his petition for
review, we dismiss the petition.
BACKGROUND
Mr. Adams’s late father, Federico C. Adams, worked in the Philippines as a
civilian employee of the Department of the Army, the Department of the Air Force, and
the Veterans Administration at various times from the 1930’s to the 1970’s when he
retired because of a physical disability. From January 1950 until March 1952, he
worked for the Veterans Administration. At the end of that period, he applied for and
received authorization for a refund of his CSRS contributions. When he finally ended
his civilian service in 1973, the standard form 50 documenting his separation from
service indicated that he was not eligible for pension benefits under any retirement plan.
After he died in 1977, his widow applied for CSRS survivor benefits. The Civil Service
Commission denied her claim. Mrs. Adams died in 1999, and the petitioner
subsequently filed a claim with OPM for survivor benefits based on his father’s civilian
service.
OPM initially denied that claim because Mr. Federico Adams had received a
refund of all of his retirement deductions and was therefore not eligible for benefits.
OPM issued a reconsideration decision in which it found that, following Mr. Federico
Adams’s separation from the Veterans Administration in 1952, it authorized a refund of
his retirement deductions. OPM concluded that Mr. Federico Adams was thus not
eligible for CSRS benefits for that period of employment, and it therefore again denied
the petitioner’s claim for survivor benefits. OPM’s reconsideration decision, however,
did not address any other periods of service covered by the petitioner’s claim for
benefits.
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The petitioner appealed the reconsideration decision to the Board but did not
dispute the portion of OPM’s decision finding that his father was ineligible for benefits
for the period ending in 1952 when he was employed by the Veterans Administration.
The Board accordingly affirmed that portion of the decision. However, the Board further
concluded that OPM had failed to address Mr. Federico Adams’s periods of service with
the Department of the Army and the Department of the Air Force. The Board therefore
remanded the matter to OPM to address those other periods of service. The Board
directed OPM to issue a reconsideration decision within 90 days of the Board’s decision
becoming final. The petitioner filed a petition for review by the full Board, which was
denied on February 22, 2005. Accordingly, the initial decision of the Board became the
final decision on that date, and the remand decision from OPM became due 90 days
from that date. During that 90-day period and before OPM issued the reconsideration
decision, the petitioner filed this petition for review by this court.
DISCUSSION
Mr. Adams complains that according to the Board decision, OPM was required to
issue its reconsideration decision 90 days from the Board’s initial decision on May 4,
2004. We disagree. The Board ordered OPM to render its reconsideration decision
within 90 days from the date that the Board’s decision became final. The pertinent
regulation, 5 C.F.R. § 1201.113, states that “[t]he initial decision of the judge will
become final 35 days after issuance.” However, subsection (a) of that provision states
that “[t]he initial decision will not become final if any party files a petition for review
within the time limit for filing specified in § 1201.114 of this part, or if the Board reopens
the case on its own motion.” If any party petitions for review, subsection (b) specifies
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that “the initial decision will become final when the Board issues its last decision denying
a petition for review.” Accordingly, because Mr. Adams petitioned for review of the
initial decision, the decision of the Board became final on February 22, 2005, the day it
denied Mr. Adams’s petition for review. Therefore, the 90-day period for OPM to issue
its reconsideration decision had not expired when Mr. Adams filed his petition for review
of the Board’s final decision on April 18, 2005.
OPM contends that we lack jurisdiction to consider Mr. Adams’s appeal. We
agree. Our jurisdiction is limited to reviewing a “final order or decision” of the Merit
Systems Protection Board. 5 U.S.C. § 7703(a)(1); 28 U.S.C. § 1295(a)(9). An order
remanding a matter to an administrative agency for further proceedings and findings is
not final. Cabot Corp. v. United States, 788 F.2d 1539, 1542 (Fed. Cir. 1986); see also
Caesar v. West, 195 F.3d 1373, 1374 (Fed. Cir. 1999) (“Remands to administrative
agencies, because they mark a continuation of the case, are not generally considered
final decisions for jurisdictional purposes.”). The rule permitting appeals only from final
decisions of administrative agencies avoids judicial interference with ongoing
administrative proceedings and “saves the expense and delays of repeated appeals in
the same suit.” Travelstead v. Derwinski, 978 F.2d 1244, 1247 (Fed. Cir. 1992).
Because the Board remanded to OPM for further proceedings, the Board’s decision is
not final. We therefore dismiss Mr. Adams’s appeal for lack of jurisdiction. If the Board
issues an adverse final decision after OPM issues the reconsideration decision ordered
by the Board, Mr. Adams may seek review of that decision at that time.
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