Calvin W. Scott v. Office of Personnel Management ( 2014 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
CALVIN W. SCOTT, DOCKET NUMBER
Appellant, AT-0831-14-0015-I-1
v.
OFFICE OF PERSONNEL DATE: August 29, 2014
MANAGEMENT,
Agency.
THIS ORDER IS NONPRECEDENTIAL *
Calvin W. Scott, Lithonia, Georgia, pro se.
Christopher H. Ziebarth, Washington, D.C., for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Anne M. Wagner, Vice Chairman
Mark A. Robbins, Member
REMAND ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed his appeal for lack of jurisdiction. For the reasons discussed below, we
GRANT the appellant’s petition for review, VACATE the initial decision, and
*
A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
REMAND the case to the Office of Personnel Management (OPM) for a decision
concerning the appellant’s application for former spouse annuity benefits.
BACKGROUND
¶2 The appellant alleged that OPM improperly denied him a former spouse
annuity. Initial Appeal File (IAF), Tab 1 at 1-5. The appeal included evidence
from the appellant’s divorce proceeding, unrelated prior workers’ compensation
claim, and complaint to the Department of Justice (DOJ) regarding the retirement
benefits and alleged wrongdoing by his former spouse and other parties but
contained no application to OPM for former spouse annuity benefits. IAF, Tabs
1, 10. However, the appellant submitted a copy of a letter sent to him by U.S.
Representative Hank Johnson in July 2013, indicating that the Congressman had
contacted OPM on behalf of the appellant. IAF, Tab 1 at 11. The letter indicated
that the appellant was “not entitled to a portion of [his former spouse’s] annuity”
without a court order and referred to an OPM report that was not submitted into
the record. Id. The appellant also submitted into the record below a letter sent to
him by the DOJ in October 2013, notifying him that they had referred his
complaint to OPM for review and appropriate action. IAF, Tab 10 at 16.
¶3 OPM filed a request to dismiss the appeal, arguing that it had not issued a
final (or any) decision in the matter and that the appellant had failed to provide
evidence of a final decision. IAF, Tab 7 at 4. The agency argued that the issues
addressed by the appellant appeared to be against the state court that entered his
divorce decree and thus were “not matters under the authority of OPM.” Id.Although the filing referenced an internal OPM docket number regarding the
appellant’s case, the agency gave no indication that it had issued or intended to
issue an initial or reconsideration decision to the appellant. Id. The
administrative judge dismissed the appeal for lack of jurisdiction based on the
parties’ written submissions, noting that the Board has jurisdiction to hear
appeals in such matters only from a final or reconsideration decision issued by
3
OPM. IAF, Tab 15, Initial Decision (ID). Specifically, the administrative judge
concluded that the record reflected that OPM had not issued “any decision
concerning the claims raised by the appellant,” and thus dismissed the appeal as
OPM had not issued a final decision on the matter. ID at 3.
DISCUSSION OF ARGUMENTS ON REVIEW
¶4 Generally, the Board has jurisdiction over retirement issues only once they
have been the subject of an OPM reconsideration decision. Ott v. Office of
Personnel Management, 120 M.S.P.R. 453, ¶ 4 (2013). However, when OPM
fails to adjudicate all claims and dispositive issues before it, the Board has
jurisdiction to consider the non-adjudicated claims and issues and may remand
the case for OPM to complete a full review of the matter. Id.; see Byrum v. Office
of Personnel Management, 618 F.3d 1323, 1332–33 (Fed. Cir. 2010). Although
the administrative judge correctly found that OPM had not issued a final decision
on the appellant’s claims, we find cause to vacate the initial decision and remand
the case to OPM for the following reasons.
¶5 As found by the administrative judge, the record indicates that OPM has not
issued any decision regarding the appellant’s retirement claims raised in the
present appeal. ID at 3. In his petition for review, the appellant alleges that the
only response he received from OPM regarding his request for a former spouse
annuity was the response to Representative Johnson, discussed above. Petition
for Review (PFR) File, Tab 1 at 2. The appellant argues that he was submitting
new evidence in the form of a letter granting his wife a “spousal exception,” but
he failed to submit this evidence into the record or to develop his vague
assertions that such letter would constitute a final determination by OPM. Id. at
3. The agency has submitted no evidence or argument on review. The one-page
agency response in the record below requesting dismissal indicated that the
agency found that the appellant’s claims were not under the authority of OPM but
provided no indication of whether the agency had informed the appellant of this
4
determination. See IAF, Tab 7 at 4. The Board has recognized that, where OPM
has failed to render a decision on a retirement application despite repeated
requests from the appellant, dismissal of the appeal could effectively prevent an
appellant from obtaining an adjudication of his claim. See Garcia v. Office of
Personnel Management, 31 M.S.P.R. 160, 161 (1986).
¶6 The appellant has argued that OPM has ignored his repeated requests
regarding his claims for former spouse annuity benefits, and the record indicates
that DOJ referred his case to OPM and that the appellant’s congressman and U.S.
Senator have attempted to intervene on his behalf. See IAF, Tabs 1, 10.
However, the record does not indicate whether OPM has issued or intends to issue
any determination to the appellant regarding his claims, such that the appellant
could then seek Board review of a final determination. As such, we find that
OPM must issue a decision allowing the appellant to adjudicate his claim.
ORDER
¶7 On remand, OPM shall issue an initial decision addressing the appellant’s
claim for former spouse annuity benefits, and informing the appellant of his rights
to seek reconsideration. OPM shall issue the initial decision within 90 calendar
days from the date of this Remand Order and shall advise the appellant of his
right to file an appeal with the Atlanta Regional Office if he disagrees with the
final decision obtained through the reconsideration process. See Litzenberger v.
Office of Personnel Management, 88 M.S.P.R. 419, 424 (2001).
¶8 We also ORDER OPM to tell the appellant promptly in writing when it
believes it has fully carried out the Board’s Order and to describe the actions it
took to carry out the Board’s Order. We ORDER the appellant to provide all
necessary information OPM requests to help it carry out the Board’s Order.
The appellant, if not notified, should ask OPM about its progress. See 5 C.F.R.
§ 1201.181(b).
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¶9 No later than 30 days after OPM tells the appellant it has fully carried out
the Board’s Order, the appellant may file a petition for enforcement with the office
that issued the initial decision on this appeal if the appellant believes that OPM
did not fully carry out the Board’s Order. The petition should contain specific
reasons why the appellant believes OPM has not fully carried out the Board’s
Order, and should include the dates and results of any communications with OPM.
See 5 C.F.R. § 1201.182(a).
FOR THE BOARD: ______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.