Keira v. Merit Systems Protection Board , 396 F. App'x 703 ( 2010 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
__________________________
TARIKU H. KEIRA,
Petitioner,
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent.
__________________________
2010-3082
__________________________
Petition for review of the Merit Systems Protection
Board in case no. AT3443090686-I-1.
__________________________
Decided: October 7, 2010
__________________________
TARIKU H. KEIRA, of Lauderdale Lakes, Florida, pro
se.
MICHAEL A. CARNEY, General Attorney, Office of the
General Counsel, Merit Systems Protection Board, of
Washington, DC, for respondent. With her on the brief
were JAMES M. EISENMANN, General Counsel, and KEISHA
DAWN BELL, Deputy General Counsel.
__________________________
KEIRA v. MSPB 2
Before NEWMAN, PROST, and MOORE, Circuit Judges.
PER CURIAM.
Petitioner Tariku H. Keira (“Keira”) appeals the final
decision of the Merit Systems Protection Board (“Board”)
dismissing his appeal for lack of jurisdiction. Keira v.
Office of Pers. Mgmt., No. AT3443090686-I-1 (M.S.P.B.
Dec. 18, 2009) (“Final Order”). We affirm.
BACKGROUND
Keira, as well as his siblings, Evelyn-White Jackson,
Perry White, and Regina Turner, applied to the Office of
Personnel Management (“OPM”) for lump sum death
benefits based on the federal service of their deceased
brother, Lloyd White (“White”). Keira was appointed as
the representative of his three siblings.
OPM, however, paid White’s lump sum death benefits
to three individuals who claimed to be White’s children,
namely Lakesha Robinson, Lucious Robinson, and Lloron
Robinson. As such, OPM issued an initial decision deny-
ing Keira’s application for the benefits and affirmed its
initial decision in a reconsideration decision on February
8, 2008. In March 2008, Keira appealed OPM’s reconsid-
eration decision to the Board. On May 5, 2008, OPM
notified the Board that it completely rescinded its recon-
sideration decision. On May 21, 2008, the Board dis-
missed Keira’s appeal for lack of jurisdiction in light of
OPM’s rescission of its reconsideration decision.
On May 19, 2009, Keira filed a motion with the Board
to re-open the appeal. Thereafter, on June 11, 2009, the
administrative judge issued an acknowledgement order in
which the administrative judge ordered Keira to file
evidence or argument regarding the Board’s jurisdiction.
3 KEIRA v. MSPB
After Keira provided arguments regarding the Board’s
jurisdiction, OPM moved to dismiss the appeal for lack of
jurisdiction, stating that OPM will issue a reconsideration
decision after reviewing all information regarding the
proper payee of the death benefits. On July 17, 2009, the
administrative judge ordered OPM to submit an affidavit
or declaration under penalty of perjury outlining the
procedure it is following to determine the proper payee.
OPM submitted a declaration, under penalty of perjury,
outlining the steps it would take to determine the proper
payee and to issue a new reconsideration decision. OPM
declared that it is waiting on additional evidence from the
competing claimants and that, whether it received the
evidence or not, it would determine the proper payee and
issue a new reconsideration decision.
On August 6, 2009, the administrative judge issued
an initial decision dismissing Keira’s appeal for lack of
jurisdiction. The administrative judge reasoned that the
Board did not have jurisdiction because OPM rescinded
its reconsideration decision, which divests the Board of
jurisdiction over an appeal. The administrative judge
further concluded that the case did not fall under the
exception to this general rule recognized in McLaughlin v.
Office of Personnel Management, 62 M.S.P.R. 536 (1994),
in light of OPM’s declaration stating its intent to issue a
reconsideration decision and detailing its procedure for
determining the proper payee.
On December 18, 2009, the Board denied Keira’s peti-
tion for review of the initial decision. Final Order at 1-2.
The initial decision therefore became the final decision of
the Board. Id. Keira appeals the Board’s final decision to
this court. We have jurisdiction under 28 U.S.C. §
1295(a)(9).
KEIRA v. MSPB 4
DISCUSSION
The issue of whether the Board has jurisdiction over
an appeal is a question of law, which we review without
deference to the Board’s determination of the issue.
Herman v. Dep’t of Justice, 193 F.3d 1375, 1378 (Fed. Cir.
1999). The appellant bears the burden of establishing the
Board’s jurisdiction by a preponderance of the evidence.
Kahn v. Dep’t of Justice, 528 F.3d 1336, 1341 (Fed. Cir.
2008).
I
An individual whose rights or interests under the
Civil Service Retirement System are affected by a “final
decision” of OPM may appeal the decision to the Board. 5
C.F.R. § 831.110; Parker v. Office of Pers. Mgmt., 74
M.S.P.R. 131, 133 (1997). For the Board to have jurisdic-
tion over such an appeal, there must be a final decision of
OPM. Tatum v. Office of Pers. Mgmt., 82 M.S.P.R. 96, 99
(1999). A “final decision” is a decision that OPM issues
after a request for reconsideration of an initial decision,
i.e., a reconsideration decision, or a decision that OPM
designates as a final decision. 5 C.F.R. § 831.109(f).
If OPM completely rescinds a reconsideration deci-
sion, 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); Snyder v. Office of Pers. Mgmt., 136
F.3d 1474, 1476 (Fed. Cir. 1998); Smith v. Office of Pers.
Mgmt., 113 M.S.P.R. 259, 261 (2010). The Board, how-
ever, has recognized a limited exception to this general
rule under circumstances in which “dismissal of the
appeal could effectively prevent an appellant from obtain-
ing an adjudication of his claim.” McLaughlin v. Office of
5 KEIRA v. MSPB
Pers. Mgmt., 62 M.S.P.R. 536, 546-47 (1994); see Richards
v. Office of Pers. Mgmt., 29 M.S.P.R. 310, 312 (1985). The
Board has found this exception applicable where it ap-
peared that OPM had no intention of issuing a reconsid-
eration decision or other further decision in the case.
McLaughlin, 62 M.S.P.R. at 547; Richards, 29 M.S.P.R. at
312. Moreover, the Board has recognized that the excep-
tion applies where OPM “improperly failed to respond to
the appellant’s repeated requests for a decision.” McNeese
v. Office of Pers. Mgmt., 61 M.S.P.R. 70, 74 (1994); Garcia
v. Office of Pers. Mgmt., 31 M.S.P.R. 160, 161 (1986).
Here, because OPM completely rescinded its reconsid-
eration decision and has not yet issued a new reconsidera-
tion decision, we agree with the Board’s determination
that it did not have jurisdiction over Keira’s appeal. We,
like the Board, conclude that the circumstances of this
case do not fall under the recognized exception to the
general rule, requiring an OPM reconsideration decision
for the Board to have jurisdiction over an appeal, or
warrant another exception to this rule. In contrast to
cases like McLaughlin, 62 M.S.P.R. 536 (1994) and Rich-
ards v. Office of Personnel Management, 29 M.S.P.R. 310(1985), in which it appeared that OPM had no intention of
issuing a further decision, OPM here has repeatedly
stated its intent to issue a new reconsideration decision in
its motion to dismiss Keira’s appeal and its declaration
outlining the procedure being followed to determine the
proper payee. Further, OPM has not improperly failed to
respond to Keira’s requests for a decision and instead has
provided a reason for the delay in issuing a reconsidera-
tion decision. Specifically, OPM has explained that it is
waiting on additional evidence from the competing claim-
ants for the lump sum death benefits and, whether it
receives the evidence or not, it will determine the proper
payee and issue a new reconsideration decision. Under
KEIRA v. MSPB 6
these circumstances where OPM is still processing Keira’s
claim, dismissal of Keira’s appeal will not “effectively
prevent [him] from obtaining an adjudication of his
claim.” See McLaughlin, 62 M.S.P.R. at 546-47.
We recognize that the delay in resolution of this case
is unfortunate for Keira and his siblings. Yet this is a
complex case, which involves multiple claimants and
paternity as well as sibling determinations regarding a
deceased individual. Further, it is important that OPM
make a fully informed decision to ensure its correctness
because it is difficult for OPM to recover lump sum bene-
fits once paid. In light of these circumstances and OPM’s
representations that it intends to issue a reconsideration
decision and is seeking additional evidence from the
competing claimants, we cannot conclude that OPM has
constructively denied Keira’s benefits. See McNeese, 61
M.S.P.R. at 74 (concluding that delay in issuing reconsid-
eration decision of more than sixteen months did not
warrant application of the exception where OPM’s only
explanation for the delay was its workload and substan-
tial backlog of cases).
Accordingly, we conclude that the Board properly
found that, without a reconsideration decision from OPM,
it did not have jurisdiction over Keira’s appeal. We trust
and expect that OPM will act expeditiously to bring
resolution to this case.
II
In his briefing, Keira objects to the Board’s dismissal
of his appeal without a live hearing. An appellant is not
entitled to a hearing unless he presents a non-frivolous
allegation that the Board has jurisdiction over his appeal.
Herman, 193 F.3d at 1382. Because “[t]he determination
7 KEIRA v. MSPB
of whether an allegation of jurisdiction is non-frivolous is
made based entirely on the written record,” a hearing on
this issue is “unnecessary.” Kahn, 528 F.3d at 1341.
Here, the Board properly determined that it did not have
jurisdiction without a hearing. As the above analysis
shows, Keira did not make a non-frivolous allegation of
the Board’s jurisdiction because OPM has not yet issued a
new reconsideration decision in this case.
CONCLUSION
For the reasons set forth above, we affirm the Board’s
dismissal of Keira’s appeal for lack of jurisdiction.
COSTS
Each party shall bear its own costs.
AFFIRMED