Stan Laber v. Office of Personnel Management ( 2024 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
STAN LABER, DOCKET NUMBER
Appellant, NY-0831-19-0130-I-1
v.
OFFICE OF PERSONNEL DATE: May 14, 2024
MANAGEMENT,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Stan Laber , Albany, New York, pro se.
Michael Shipley , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed his appeal for lack of jurisdiction because the Office of Personnel
Management (OPM) had not issued a final decision. 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
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
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 as moot, as
OPM issued a final decision concerning the subject of the appeal after the initial
decision was issued. 5 C.F.R. § 1201.113(b).
On April 15, 2019, the appellant filed a Board appeal regarding the
commencement date of his Civil Service Retirement System (CSRS) annuity.
Initial Appeal File (IAF), Tab 1 at 4. In response to the acknowledgment order,
OPM moved to dismiss the appeal for lack of Board jurisdiction based on the fact
that it had not yet issued a final decision regarding the matter. IAF, Tab 4. In a
response to OPM’s motion, the appellant argued that OPM did not intend to issue
a final decision and the Board should retain jurisdiction over the appeal. IAF,
Tab 5. In response to the administrative judge’s order inquiring whether OPM
intended to issue a final decision in this matter, and if so, when such a decision
would be issued, OPM stated that it intended to issue a final decision within
14 days of its July 29, 2019 response. IAF, Tabs 6-7. That same day, the
administrative judge dismissed the appeal for lack of jurisdiction. IAF, Tab 8,
Initial Decision (ID) at 1-2.
On August 22, 2019, the appellant filed the instant petition for review
alleging that OPM still had not issued a final decision despite stating that it
would, and complaining that he has been trying to resolve his dispute with OPM
for 4 years. Petition for Review (PFR) File, Tab 1 at 3-6. OPM filed a response
3
to the appellant’s petition, asserting that on July 31, 2019, it issued a final
appealable decision that changed the appellant’s annuity commencement date.
PFR File, Tab 4 at 4. OPM also included a copy of the July 31, 2019 final
decision addressed to the appellant, as well as a computation sheet reflecting the
new annuity commencement date and the resulting underpayment. Id. at 5-6.
Because it appeared that OPM had issued a final appealable decision regarding
the CSRS annuity commencement issue, the Office of the Clerk of the Board
issued an order instructing the appellant to provide evidence and argument
explaining why his appeal should not be dismissed as moot based on OPM’s
issuance of a final decision. PFR File, Tab 5. In a response to the order, the
appellant questioned the validity of OPM’s final decision letter and appeared to
suggest that satisfactory relief has not been granted. 2 PFR File, Tab 6 at 4-5.
Generally, the Board has jurisdiction over OPM determinations affecting an
appellant’s rights or interests under CSRS only after OPM has issued a final or
reconsideration decision. 5 U.S.C. § 8347(d); Smith v. Office of Personnel
Management, 114 M.S.P.R. 395, ¶ 8 (2010); 5 C.F.R. § 831.110. As an exception
to this general rule, however, the Board may assert jurisdiction over an appeal
concerning a retirement matter in 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). The administrative judge properly found that the Board did not
have jurisdiction over the appeal, as OPM had not issued a final decision at the
time the initial decision was issued, but stated that it intended to do so in short
order. ID at 2; IAF, Tab 7 at 3. The appeal has now been rendered moot based
on the fact that OPM has submitted evidence demonstrating that it has issued a
final appealable decision and provided the appellant with Board appeal rights.
2
The appellant also argues on review that the administrative judge erred in failing to
rule on his request for class certification. PFR File, Tab 6 at 4-5; see 5 C.F.R.
§ 1201.27. Because we conclude that this appeal has been rendered moot by OPM’s
issuance of a final appealable decision in this case, we need not address whether the
administrative judge erred in failing to rule on the appellant’s request for class
certification.
4
PFR File, Tab 4 at 5. Accordingly, the appellant’s petition for review is denied
as moot. 3
NOTICE OF APPEAL RIGHTS 4
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
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If the appellant is still dissatisfied with OPM’s reconsideration decision, he may file a
new Board appeal challenging that decision with the appropriate regional or field office.
See 5 U.S.C. § 8347(d); 5 C.F.R. § 831.110. However, any new appeal would be
subject to timeliness considerations and we make no representation about the timeliness
of any potential appeal. See 5 C.F.R. § 1201.22(b)(1).
4
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.
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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.
(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
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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:
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
7
(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. 5 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.
5
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.
8
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.