Tafoya Sutton v. Office of Personnel Management ( 2024 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
TAFOYA L. SUTTON, SR., DOCKET NUMBER
Appellant, DC-0841-22-0513-I-1
v.
OFFICE OF PERSONNEL DATE: April 23, 2024
MANAGEMENT,
Agency.
THIS ORDER IS NONPRECEDENTIAL 1
Tafoya L. Sutton , Sr. , Alexandria, Virginia, pro se.
Carla Robinson , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
REMAND ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed for lack of jurisdiction his appeal of the alleged error by the Office of
Personnel Management (OPM) in calculating the amount he needed to deposit to
obtain credit for military service. For the reasons discussed below, we GRANT
the appellant’s petition for review, VACATE the initial decision, and REMAND
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
the case to the Washington Regional Office for further adjudication in accordance
with this Remand Order.
BACKGROUND
The appellant filed an application with OPM for immediate retirement
under the Federal Employees’ Retirement System (FERS). Initial Appeal File
(IAF), Tab 4 at 6-7. OPM denied the appellant FERS retirement credit for his
military service in a reconsideration decision dated November 30, 2021. IAF,
Tab 1 at 16. He appealed that decision to the Board. Sutton v. Office of
Personnel Management, MSPB Docket No. DC-0842-22-0118-I-1, Initial
Decision (Feb. 3, 2022). OPM rescinded the decision, and an administrative
judge dismissed the appeal for lack of jurisdiction. Id. at 2. In doing so, she
relied on OPM’s statement that it would issue the appellant a new reconsideration
decision “with due process.” Id.; Sutton v. Office of Personnel Management,
MSPB Docket No. DC-0842-22-0118-I-1, Initial Appeal File, Tab 6.
By letter dated June 27, 2022, OPM advised the appellant that he needed to
pay $8,132.87 to obtain credit for his prior military service. IAF, Tab 1 at 8-9.
The letter did not notify the appellant of how to request reconsideration or of his
right to appeal to the Board. Id. The appellant filed the instant appeal alleging
that OPM erred in calculating the amount he needed to deposit to obtain credit for
his military service. IAF, Tab 1. The administrative judge issued an order to the
parties to address the Board’s jurisdiction over the appeal, advising them that the
record on jurisdiction would close in 20 days. IAF, Tab 3. The appellant
submitted a timely response. IAF, Tab 4. The agency did not. Instead, after the
record on jurisdiction closed, it requested an extension of time. 2 IAF, Tabs 5-6.
2
The administrative judge did not issue a ruling on the agency’s motion. Because the
initial decision was issued on the same day the agency’s motion was submitted, it
appears that the administrative judge did not receive the agency’s motion before issuing
her initial decision. IAF, Tab 7, Initial Decision at 1, Tabs 5-6.
3
Without holding the appellant’s requested hearing, the administrative judge
issued an initial decision dismissing the appeal for lack of jurisdiction. IAF,
Tab 1 at 2, Tab 7, Initial Decision (ID) at 1, 5. She reasoned that the June 27,
2022 letter was not a reconsideration decision. ID at 3-5. To the extent that the
appellant sought to appeal the November 30, 2021 reconsideration decision, the
administrative judge noted that the decision had been rescinded, and that the
June 27, 2022 letter came to a different conclusion. ID at 4-5. She further
reasoned that the June 27, 2022 letter did not imply that OPM would not
reconsider its determination of the deposit amount upon the appellant’s request to
do so. ID at 4.
The appellant has filed a petition for review. Petition for Review (PFR)
File, Tabs 1-2. On review, he again disagrees with the amount OPM indicated he
needed to pay for his military service credit. PFR File, Tab 1 at 5-6. OPM has
submitted a pro forma response stating only that the appellant has not met the
criteria for review. PFR File, Tab 5.
DISCUSSION OF ARGUMENTS ON REVIEW
The Board has jurisdiction over appeals from final decisions of OPM in
administering retirement benefits under FERS. Lua v. Office of Personnel
Management, 102 M.S.P.R. 108, ¶ 8 (2006); see 5 U.S.C. § 8461(e)(1) (stating
that “an administrative action or order affecting the rights or interests of an
individual” under FERS may be appealed to the Board). 3 An applicant may
request a final decision from an OPM decision advising him of his right to request
reconsideration. 5 C.F.R. §§ 841.305(a), 841.306(a), (e). Generally, a final
decision “must be in writing, must fully set forth the findings and conclusions of
3
The administrative judge erroneously cited to regulations relevant to establishing
jurisdiction over a retirement matter under the Civil Service Retirement System
(CSRS). ID at 3. But this error did not impact the administrative judge’s analysis. The
applicable laws and regulations under both FERS and CSRS require the issuance of a
final decision by OPM for the Board to have jurisdiction over a retirement matter.
Compare 5 U.S.C. § 8461(e), and 5 C.F.R. § 841.308, with 5 U.S.C. § 8347(d), and
5 C.F.R. § 831.110.
4
the reconsideration, and must contain notice of the right to request an appeal”
with the Board. 5 C.F.R. § 841.306(e). However, when OPM does not inform an
appellant of his right to request reconsideration of its decision and does not state
its intent to issue a reconsideration decision in its submissions to the Board, the
Board will not require a final decision as a prerequisite for Board review. Powell
v. Office of Personnel Management, 114 M.S.P.R. 580, ¶ 9 (2010); see Scallion v.
Office of Personnel Management, 72 M.S.P.R. 457, 461 (1996) (“[T]he absence
of a reconsideration decision does not preclude Board review of a retirement
decision when OPM fails to advise the appellant of his right to request a
reconsideration decision and does not intend to issue any further decision on the
appellant’s application.”).
OPM’s June 27, 2022 letter directed the appellant regarding how to pay his
$8,132.87 service deposit if he chose to do so. IAF, Tab 1 at 8-9. The letter did
not advise him of his right to either request reconsideration from OPM or appeal
to the Board, stating only “[i]f you have any questions or need further assistance,
please let us know.” Id. Further, OPM did not state during the proceedings
below, and has not indicated on review, that it intends to issue a final decision.
In fact, OPM has made no substantive response to the appellant’s claims.
Accordingly, we find that OPM’s June 27, 2022 letter constitutes an appealable
final decision and that the Board has jurisdiction to consider the merits of the
appellant’s claim.
We therefore remand this appeal for adjudication on the merits.
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ORDER
For the reasons discussed above, we remand this case to the Washington
Regional Office for further adjudication in accordance with this Remand Order.
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.