Erlinda T. Dominado v. Office of Personnel Management ( 2015 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ERLINDA T. DOMINADO, DOCKET NUMBER
Appellant, SF-0831-15-0490-I-1
v.
OFFICE OF PERSONNEL DATE: September 14, 2015
MANAGEMENT,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Rodelio V. Mendoza, Calabanga, Camarines Sur, Philippines, for the
appellant.
Cynthia Reinhold, Washington, D.C., for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Mark A. Robbins, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed her appeal for lack of jurisdiction. Generally, we grant petitions such
as this one only when: the initial decision contains erroneous findings of material
fact; the initial decision is based on an erroneous interpretation of statute or
1
A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
2
regulation or the erroneous application of the law to the facts of the case; the
judge’s rulings during either the course of the appeal or the initial decision were
not consistent with required procedures or involved an abuse of discretion, and
the resulting error affected the outcome of the case; or new and material evidence
or legal argument is available that, despite the petitioner’s due diligence, was not
available when the record closed. See Title 5 of the Code of Federal Regulations,
section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this
appeal, we conclude that the petitioner has not established any basis under section
1201.115 for granting the petition for review. Therefore, we DENY the petition
for review and AFFIRM the initial decision, which is now the Board’s final
decision. 5 C.F.R. § 1201.113(b).
DISCUSSION OF ARGUMENTS ON REVIEW
¶2 The record reflects that, on an unknown date between June 30, 2014, and
March 2, 2015, the appellant submitted an application for death benefits under the
Civil Service Retirement System (CSRS) on the basis of the Federal service of
her deceased spouse. 2 Initial Appeal File (IAF), Tab 1 at 8-11, Tab 3 at 12, Tab 8
at 5-12. As of April 15, 2015, the Office of Personnel Management (OPM) had
not issued an initial or final decision on the appellant’s application, and she filed
a Board appeal. IAF, Tab 1. The appellant did not request a hearing. Id. at 2.
The administrative judge advised the appellant that the Board may not have
jurisdiction over her appeal because the Board’s jurisdiction over CSRS
retirement matters does not vest until after OPM has issued a final decision. IAF,
Tab 2. The order further explained that, notwithstanding the lack of a final
decision by OPM, the Board may find jurisdiction if OPM refuses or improperly
fails to issue a final decision. IAF, Tab 2 at 2 (citing Okello v. Office of
2
The signature page of the application is dated June 30, 2014. IAF, Tab 3 at 12, Tab 8
at 9. The copy of the application submitted by the appellant with her initial appeal is
dated March 2, 2015, but it is not signed. IAF, Tab 1 at 11.
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Personnel Management, 120 M.S.P.R. 498, ¶ 14 (2014)). In response, the
appellant submitted documentation appearing to show that she sent emails to
various OPM employees on March 2, 3, 5, 6, and 8, 2015, demanding a decision
on her application for death benefits. IAF, Tab 3 at 6-10. OPM moved to dismiss
the appeal for lack of jurisdiction because it had not issued a final decision. IAF,
Tab 8 at 4. Without holding a hearing, the administrative judge dismissed the
appeal for lack of jurisdiction. IAF, Tab 9, Initial Decision (ID). The appellant
has filed a petition for review, OPM has responded in opposition to the petition
for review, and the appellant has replied to OPM’s opposition. Petition for
Review (PFR) File, Tabs 1, 4-5.
¶3 The appellant has the burden of proving jurisdiction over her appeal. See
Reid v. Office of Personnel Management, 120 M.S.P.R. 83, ¶ 6 (2013). The
Board generally lacks jurisdiction to hear an appeal of a retirement matter before
OPM has issued a final decision on the matter and, accordingly, will dismiss the
appeal. See Ramirez v. Office of Personnel Management, 114 M.S.P.R. 511, ¶ 7
(2010). The Board has recognized an exception to that general rule, however,
when OPM has failed to render a decision. Id. The Board therefore will take
jurisdiction, even absent an OPM final decision, when the appellant has
repeatedly requested such a decision and the evidence indicates that OPM does
not intend to issue a final decision. Id.
¶4 The administrative judge determined here, however, that this is not such a
case. ID at 3. Specifically, she explained that OPM’s delay was less than 1 year
and, although the appellant made repeated requests for OPM to process her
application, these requests were made in quick succession within 1 week and the
appeal was filed shortly thereafter. Id. By contrast, in Okello, the case went on
for more than 6 years and, during that period, OPM issued at least one initial
decision and one final decision that it rescinded, and there were multiple Board
appeals in which OPM claimed it would issue a final decision, but then ultimately
failed to act. Id. (citing Okello, 120 M.S.P.R. 498, ¶¶ 4-11, 15-16). Thus, the
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administrative judge here concluded that there was “no evidence to suggest that
OPM has abdicated its role” as to warrant a finding of Board jurisdiction in the
absence of a final OPM decision. ID at 3.
¶5 On review, the appellant generally recites the law applicable to the Board’s
jurisdiction over retirement matters, provides the entire text of 5 C.F.R. § 831.112
setting forth the definitions of “employee” for the purposes of retirement
determinations, and generally discusses incorrect retirement advice given by
Federal agencies. PFR File, Tab 1 at 5-6. Although the appellant discusses the
law applicable to incorrect retirement advice, she does not allege that she has, in
fact, been given any incorrect retirement advice, nor does she explain the
relevance of her claims to this appeal. See id. The remainder of the appellant’s
petition for review likewise fails to identify any error in the initial decision.
Nevertheless, we have considered the appellant’s assertions and find that they do
not warrant a basis to disturb the initial decision.
¶6 At the earliest, the appellant submitted her application to OPM on or about
June 30, 2014, and she initiated this appeal less than 10 months later, in April
2015. The Board has previously found that a 16-month delay by OPM in
processing a retirement matter did not amount to a constructive denial of a final
decision. See McNeese v. Office of Personnel Management, 61 M.S.P.R. 70, 74,
aff’d, 40 F.3d 1250 (Fed. Cir. 1994) (Table). As such, the even shorter delay
here—a maximum of 10 months—does not amount to a constructive denial.
Moreover, the appellant has failed to submit any evidence to suggest that OPM
does not intend to issue an initial or final decision on her application for death
benefits. Accordingly, we find that the administrative judge correctly determined
that there is no basis for the Board to assert jurisdiction over this appeal at this
time. The appellant may appeal the substantive merits of her case to the Board
once OPM issues a final decision.
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NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
You have the right to request review of this final decision by the United
States Court of Appeals for the Federal Circuit. You must submit your request to
the court at the following address:
United States Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, DC 20439
The court must receive your request for review no later than 60 calendar
days after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec.
27, 2012). If you choose to file, be very careful to file on time. The court has
held that normally it does not have the authority to waive this statutory deadline
and that filings that do not comply with the deadline must be dismissed. See
Pinat v. Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).
If you need further information about your right to appeal this decision to
court, you should refer to the Federal law that gives you this right. It is found in
Title 5 of the United States Code, section 7703 (5 U.S.C. § 7703) (as rev. eff.
Dec. 27, 2012). You may read this law as well as other sections of the United
States Code, at our website, http://www.mspb.gov/appeals/uscode.htm.
Additional information is available at the court’s website,
www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se
Petitioners and Appellants,” which is contained within the court’s Rules of
Practice, and Forms 5, 6, and 11.
If you are interested in securing pro bono representation for an appeal to the
United States court of appeals for the Federal Circuit, you may visit our website
at http://www.mspb.gov/probono for information regarding pro bono
representation for Merit Systems Protection Board appellants before the Federal
court. The Merit Systems Protection Board neither endorses the services
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provided by any attorney nor warrants that any attorney will accept representation
in a given case.
FOR THE BOARD: ______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.