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UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD KATHLEEN P. BUTERA, DOCKET NUMBER Appellant, PH-0841-18-0414-I-1 v. OFFICE OF PERSONNEL DATE: February 16, 2024 MANAGEMENT, Agency. THIS FINAL ORDER IS NONPRECEDENTIAL 1 Ralph N. Butera , Pottsville, Pennsylvania, for the appellant. Jane Bancroft , Washington, D.C., for the agency. BEFORE Cathy A. Harris, Vice Chairman Raymond A. Limon, Member FINAL ORDER The appellant has filed a petition for review of the initial decision, which dismissed her appeal for lack of jurisdiction because the Office of Personnel Management (OPM) had not issued a final decision in this matter. Generally, we grant petitions such as this one only in the following circumstances: the initial decision contains erroneous findings of material fact; the initial decision is based 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions.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 on an erroneous interpretation of statute or regulation or the erroneous application of the law to the facts of the case; the administrative 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. 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). This appeal concerns the appellant’s challenge to OPM’s determination that it should have recalculated the appellant’s annuity benefit under the Federal Employees’ Retirement System (FERS) when she reached 62 years of age, resulting in an overpayment. Initial Appeal File (IAF), Tab 1, Tab 3, Subtabs 5a-5b. On review, the appellant contests the administrative judge’s dismissal of her appeal for lack of jurisdiction because OPM had not issued a final decision in this matter. Petition for Review (PFR) File, Tab 1 at 1; IAF, Tab 11, Initial Decision (ID) at 3-4. She argues that OPM is delaying the proceedings in order to induce her to miss a deadline. PFR File, Tab 1 at 1. OPM has filed an opposition to the petition in which it maintains that the Board lacks jurisdiction over the appeal because OPM has not issued a final decision. PFR File, Tab 4 at 4. The Board generally has jurisdiction over OPM determinations affecting an appellant’s rights or interests under FERS only after OPM has issued a final decision. McNeese v. Office of Personnel Management,
61 M.S.P.R. 70, 73-74, aff’d,
40 F.3d 1250(Fed. Cir. 1994) (Table). As an exception to this general rule, the Board will take jurisdiction over an appeal concerning a retirement matter in 3 which OPM has refused or improperly failed to issue a final decision. Okello v. Office of Personnel Management,
120 M.S.P.R. 498, ¶ 14 (2014). As discussed by the administrative judge, OPM rescinded a March 6, 2018 final decision and issued a May 31, 2018 amended initial decision providing the appellant with the right to request reconsideration of the decision. ID at 3; IAF, Tab 3, Subtabs 5a-5c, Tab 10 at 11. An OPM initial decision subject to reconsideration is not a final decision appealable to the Board. Okello,
120 M.S.P.R. 498, ¶ 14 n.2;
5 C.F.R. § 841.305. 2 At the time the administrative judge issued his initial decision dismissing the appeal for lack of jurisdiction, there was no evidence that the appellant had requested reconsideration or that OPM had issued a final decision. ID at 3. The record on review reflects that, shortly after the administrative judge issued the initial decision in this appeal, the appellant requested reconsideration of OPM’s amended initial decision; however, there is still no evidence that OPM has issued a final decision. PFR File, Tab 1 at 2. Additionally, the record does not support the appellant’s argument that OPM is unnecessarily delaying the process, nor do we find that OPM has otherwise refused or improperly failed to issue a final decision. Accordingly, we affirm the administrative judge’s finding that the Board lacks jurisdiction over this appeal; thus, the appeal must be dismissed. Once OPM issues a final decision in this matter, the appellant may appeal the decision to the Board. 2 In the initial decision, the administrative judge cited to the regulations applicable to the Civil Service Retirement System, rather than to FERS, the system under which the appellant retired. ID at 3. We discern no reason to disturb the initial decision, however, as OPM’s amended initial decision does not constitute a final decision under either system’s regulations; thus, the administrative judge’s reliance on the incorrect regulations does not affect the outcome of the appeal. See Panter v. Department of the Air Force,
22 M.S.P.R. 281, 282 (1984) (finding that an adjudicatory error that is not prejudicial to a party’s substantive rights provides no basis for reversal of an initial decision). 4 NOTICE OF APPEAL RIGHTS 3 You may obtain review of this final decision.
5 U.S.C. § 7703(a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file.
5 U.S.C. § 7703(b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision.
5 U.S.C. § 7703(b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: 3 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter. 5 U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit 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, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. 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 Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision—including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision.
5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems Protection Board,
582 U.S. 420(2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court-appointed lawyer and to waiver of any 6 requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a. Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues .
5 U.S.C. § 7702(b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision.
5 U.S.C. § 7702(b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under
5 U.S.C. § 2302(b)(8) or other protected activities listed in
5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s 7 disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction. 4 The court of appeals must receive your petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703(b)(1)(B). If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit 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, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. 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 Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. 4 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017.
Pub. L. No. 115-195, 132Stat. 1510. 8 Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: ______________________________ Gina K. Grippando Clerk of the Board Washington, D.C.
Document Info
Docket Number: PH-0841-18-0414-I-1
Filed Date: 2/16/2024
Precedential Status: Non-Precedential
Modified Date: 2/20/2024