Roger Greer v. Office of Personnel Management ( 2024 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ROGER E. GREER, DOCKET NUMBER
Appellant, SF-0842-19-0354-I-1
v.
OFFICE OF PERSONNEL DATE: July 8, 2024
MANAGEMENT,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Brook L. Beesley , Alameda, California, for the appellant.
Sherri A. McCall , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member*
*Member Kerner did not participate in the adjudication of this appeal.
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed for lack of jurisdiction the appeal of the reconsideration decision of the
Office of Personnel Management (OPM) denying his request for enhanced
retirement annuity benefits under the Federal Employees’ Retirement System
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
(FERS). 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 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).
As properly explained in the initial decision, when OPM completely
rescinds a final decision, its rescission completely divests the Board of
jurisdiction over the appeal in which that decision is at issue and the appeal must
be dismissed. Initial Appeal File (IAF), Tab 12, Initial Decision (ID) at 2; see
Frank v. Office of Personnel Management, 113 M.S.P.R. 164, ¶ 7 (2010); see also
Rorick v. Office of Personnel Management, 109 M.S.P.R. 597, ¶ 5 (2008). Here,
the administrative judge dismissed the appeal for lack of jurisdiction based on her
finding that OPM has completely rescinded its final decision. ID at 2-3.
On petition for review, the appellant reasserts his argument that OPM has
not completely rescinded its final decision because he has not received all the
relief to which he would be entitled if the appeal had been adjudicated and he had
prevailed. Petition for Review (PFR) File, Tab 1 at 3-4; IAF, Tab 11 at 2. In
particular, he argues that he has not been granted retirement benefits and he cites
Board case law on mootness. PFR File, Tab 1 at 3-4. However, the
administrative judge did not dismiss the appeal as moot. Instead, she properly
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dismissed the appeal for lack of jurisdiction after OPM’s rescission of its final
decision and stated intention to issue a new one. ID at 2-3; see, e.g., Rorick,
109 M.S.P.R. 597, ¶¶ 5-6. Moreover, she properly noted that, although OPM’s
rescission of a reconsideration decision divests the Board of jurisdiction over an
appeal, it does not necessarily render an appeal moot. ID at 3; see Rorick,
109 M.S.P.R. 597, ¶ 6. Therefore, the appellant’s arguments regarding relief and
mootness are inapposite.
The appellant further argues that OPM rescinded its final decision to cause
undue delay and prejudice to him. PFR File, Tab 1 at 4. This conclusory
allegation of OPM’s bad faith, without more, does not articulate a basis for Board
jurisdiction. In addition, his dispute of OPM’s application of FERS statutes and
regulations concerns the merits of the appeal, which are irrelevant to the
jurisdictional issue before the Board. PFR File, Tab 1 at 3; see, e.g., Sapla v.
Department of the Navy, 118 M.S.P.R. 551, ¶ 7 (2012) (finding that the
appellant’s arguments on the merits of her appeal were not relevant to the
jurisdictional question).
Finally, the appellant’s remaining arguments do not provide a reason to
disturb the initial decision. He challenges the administrative judge’s decisions to
dismiss the appeal without holding the requested hearing, and to stay the
discovery process and OPM’s obligation to produce the agency file. PFR File,
Tab 1 at 1-2; IAF, Tab 10. For the reasons discussed above, we are not persuaded
by the appellant’s claim that such procedures would have provided him with
relevant evidence regarding relief and OPM’s application of FERS statutes and
regulations. PFR File, Tab 1 at 2. Moreover, the appellant has failed to make a
nonfrivolous allegation 2 of jurisdiction warranting a hearing. See Edwards v.
Department of the Air Force, 120 M.S.P.R. 307, ¶ 6 (2013) (explaining that an
appellant generally is entitled to a jurisdictional hearing if he makes a
2
A nonfrivolous allegation is an assertion that, if proven, could establish the matter at
issue. 5 C.F.R. § 1201.4(s).
4
nonfrivolous allegation of Board jurisdiction over the appeal). Thus, we find that
he has failed to prove that the administrative judge abused her discretion or
committed a procedural error that harmed his substantive rights. See Vaughn v.
Department of the Treasury, 119 M.S.P.R. 605, ¶ 15 (2013) (recognizing that an
administrative judge has broad discretion in ruling on discovery matters and,
absent an abuse of discretion, the Board will not find reversible error in such
rulings); see also Karapinka v. Department of Energy, 6 M.S.P.R. 124, 127
(1981) (finding that an administrative judge’s procedural error is of no legal
consequence unless it is shown to have adversely affected a party’s substantive
rights).
Accordingly, we affirm the initial decision dismissing this appeal for lack
of jurisdiction. If the appellant is dissatisfied with any subsequent OPM
reconsideration or final decision regarding his request for retirement benefits, he
may appeal that decision to the Board. See 5 U.S.C. § 8461(e)(1); 5 C.F.R.
§ 841.308. Any future appeal must be filed within the time limits set forth in the
Board’s regulations. See 5 C.F.R. § 1201.22(b)(1).
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
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
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:
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.
6
(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
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:
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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
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).
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,
132 Stat. 1510.
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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.
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.