Daisy Menendez v. Office of Personnel Management

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
DAISY MENENDEZ, DOCKET NUMBER
Appellant, AT-0841-15-0223-I-1
v.
OFFICE OF PERSONNEL DATE: May 14, 2015
MANAGEMENT,
Agency.
THIS FINAL ORDER IS NO NPRECEDENTIAL *
Daisy Menendez, Miami, Florida, pro se.
Patrick Jennings, Washington, D.C., for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Mark A. Robbins, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed her appeal for lack of jurisdiction. Generally, we grant petitions such
as this one only when: the initial decision contains erroneous findings of material
fact; the initial decision is based on an erroneous interpretation of statute or
*
A nonprecedential order is one that the Board has determined does not add
sign ificantly 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 Parties may cite nonprecedential orders,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).
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regulation or the erroneous application of the law to the facts of the case; the
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. See 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, and based on the following points and authorities, 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 except as expressly MODIFIED by this Final Order.
Specifically, we find that the administrative judge erred by not providing the
appellant with explicit information on what was required to establish jurisdiction
in this case, but this error did not prejudice the appellant’s substantive rights and
does not affect the outcome of the appeal.
¶2 The appellant filed an appeal contesting a reduction in her retirement
annuity. Initial Appeal File (IAF), Tab 1. In response to the appeal, the Office of
Personnel Management (OPM) stated that it had rescinded the reconsideration
decision in the appellant’s case, and it moved to dismiss the appeal for lack of
jurisdiction. IAF, Tab 5 at 4. The administrative judge issued an initial decision
that dismissed the appeal for lack of jurisdiction because there was no final
appealable decision from OPM. IAF, Tab 6.
¶3 If OPM completely rescinds a reconsideration decision, the rescission
divests the Board of jurisdiction over the appeal in which the reconsideration
decision is at issue, and the appeal must be dismissed. See, e.g., Martin v. Office
of Personnel Management, 119 M.S.P.R. 188, ¶ 8 (2013). The appellant does not
allege on review that the administrative judge was mistaken in finding that OPM
rescinded its reconsideration decision and we find no basis to disturb that finding.
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Accordingly, we find that the administrative judge correctly dismissed this appeal
of lack of jurisdiction.
¶4 An appellant must receive explicit information on what is required to
establish an appealable jurisdictional issue. Burgess v. Merit Systems Protection
Board, 758 F.2d 641, 643-44 (Fed. Cir. 1985). An administrative judge’s failure
to provide this notice can be cured if the agency’s pleadings or the initial decision
contain the notice that was lacking, thus affording the appellant an opportunity to
establish jurisdiction on review. See, e.g., Parker v. Department of Housing &
Urban Development, 106 M.S.P.R. 329, ¶ 8 (2007). We find that the notice
provided to the appellant was incomplete and that the initial decision and OPM’s
pleadings did not cure the deficiency. However, a reasonable person in the
appellant’s position should have realized upon receiving the initial decision that
the question in this case was whether OPM had rescinded its reconsideration
decision. She has had the opportunity on review to contest the finding that OPM
rescinded its decision, but has not done so and there is no basis from the record
for concluding that OPM has not rescinded the decision. Therefore, the
administrative judge’s failure to provide complete notice of the appellant’s
jurisdictional burden did not prejudice the appellant’s substantive rights and
provides no basis for reversal of the initial decision. See Panter v. Department of
the Air Force, 22 M.S.P.R. 281, 282 (1984).
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. You have the right to
request the United States Court of Appeals for the Federal Circuit to review this
final decision. You must submit your request to the court at the following
address:
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United States Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, DC 20439
The court must receive your request for review no later than 60 calendar
days after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec.
27, 2012). If you choose to file, be very careful to file on time. The court has
held that normally it does not have the authority to waive this statutory deadline
and that filings that do not comply with the deadline must be dismissed. See
Pinat v. Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).
If you need further information about your right to appeal this decision to
court, you should refer to the federal law that gives you this right. It is found in
Title 5 of the United States Code, section 7703 (5 U.S.C. § 7703) (as rev. eff.
Dec. 27, 2012). You may read this law as well as other sections of the United
States Code, at our website, http://www.mspb.gov/appeals/uscode.htm.
Additional information 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, and 11.
If you are interested in securing pro bono representation for an appeal to the
United States 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 Merit Systems Protection Board neither endorses the services
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provided by any attorney nor warrants that any attorney will accept representation
in a given case.
FOR THE BOARD: ______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.