Daniel Downing v. Office of Personnel Management

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
DANIEL DEAN DOWNING, DOCKET NUMBER
Appellant, CH-0841-18-0074-I-1
v.
OFFICE OF PERSONNEL DATE: May 8, 2023
MANAGEMENT,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Daniel Dean Downing, La Salle, Michigan, pro se.
Alison Pastor, Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed his retirement appeal for lack of jurisdiction. 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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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 a pplication 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 affec ted 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).
BACKGROUND
¶2 The appellant applied for retirement benefits under the Federal Employees’
Retirement System (FERS) in September 2017. Initial Appeal File (IAF), Tab 4
at 1, 3. In October 2017, the Office of Personnel Management (OPM) sent him a
personalized booklet describing his monthly benefit and providing other
“essential information” regarding his retirement benefits. Id. at 3-18. On
November 15, 2017, he filed a Board appeal arguing, among other things, tha t his
employing agency and OPM discriminated against him and erred in calculating
his service computation date and high-3 average salary. 2 IAF, Tab 1.
¶3 In a show cause order, the administrative judge advised the appellant that
the Board generally lacks jurisdiction over a retirement matter when OPM has not
issued a final decision and ordered him to file evidence and argument on the
2
The appellant’s initial appeal also alleged that his employing agency forced him to
retire, and the Board’s regional office separately docketed an involuntary retirement
appeal. IAF, Tab 1, Tab 3 at 1; Downing v. Department of the Interior, MSPB Docket
No. CH-0752-18-0073-I-1.
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jurisdictional issue. IAF, Tab 3 at 1-2. In response, the appellant appeared to
argue, among other things, that the personalized booklet constituted a final
decision. IAF, Tabs 4-5. OPM moved to dismiss the appeal for lack of
jurisdiction, stating that the appellant had not raised any issues with OPM prior to
filing his Board appeal and that it had not issued an initial or a final decision.
IAF, Tab 7.
¶4 Without holding the appellant’s requested hearing, the administrative judge
issued an initial decision dismissing the appeal for lack of jurisdiction. IAF,
Tab 8, Initial Decision (ID). She found that the appellant had not shown that
OPM issued an initial or a final decision or that it improperly denied him such a
decision. ID at 4-5. She further found that, absent an otherwise appealable
action, she lacked jurisdiction to consider the appellant’s allegations of age and
disability discrimination. ID at 5.
¶5 The appellant has filed a petition for review of the initial decision, and the
agency has responded in opposition. Petition for Review (PFR) File, Tabs 1, 5. 3
DISCUSSION OF ARGUMENTS ON REVIEW
¶6 The Board’s jurisdiction is limited to those matters over which it has been
given jurisdiction by law, rule, or regulation. Maddox v. Merit Systems
Protection Board, 759 F.2d 9, 10 (Fed. Cir. 1985). Under 5 U.S.C. § 8461(e)(1),
the Board has jurisdiction to review “[a]n administrative action or order affecting
the rights or interests of an individual” under FERS. The Board has recognized
the following three situations in which OPM is deemed to have issued an
appealable decision under the statute: (1) when OPM issues a reconsideration
decision under 5 C.F.R. § 841.306; (2) when OPM issues an initial decision
3
With this petition for review, the appellant has submitted another copy of the
personalized benefits booklet. PFR File, Tab 1 at 4-26. This document is already in the
record and, therefore, is not new and material evidence. Meier v. Department of the
Interior, 3 M.S.P.R. 247, 256 (1980); IAF, Tab 4 at 5-21.
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without reconsideration rights under 5 C.F.R. § 841.307; and (3) when 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).
¶7 On review, the appellant argues again that OPM issued a final decision
when it provided him the personalized benefits booklet in October 2017. PFR
File, Tab 1 at 1-2; IAF, Tab 4 at 5-21. Although the personalized booklet
contains OPM’s calculations regarding the appellant’s retirement benefits, it does
not constitute a final decision under OPM’s regulations because it does not
contain written notice of the appellant’s right to appeal to the Board. See
5 C.F.R. § 841.306(e) (providing that a final decision under this subsection must
contain, among other things, “notice of the right to request an appeal provided in
§ 841.308”), 841.307 (providing that an initial decision without reconsideration
rights under this subsection must “state the right to appeal under § 841.308”).
Thus, as the administrative judge correctl y found, the appellant has not shown
that OPM issued an appealable final decision.
¶8 The appellant does not challenge the administrative judge’s determination
that OPM has not improperly failed to issue an initial or a final decision, PFR
File, Tab 1, and we discern no basis to disturb this finding. As noted above, the
appellant applied for retirement in September 2017 and filed the instant Board
appeal in November 2017. IAF, Tabs 1, 4. There is no indication that he
contacted OPM regarding the matters raised in this appeal before filing it or that
OPM refused to issue an initial or a final decision. Accordingly, there is no basis
for the Board to assert jurisdiction over this appeal in the absence of a final
decision. Cf. Okello, 120 M.S.P.R. 498, ¶¶ 15-16 (finding Board jurisdiction over
a retirement appeal when OPM failed to issue a final decision despite the
appellant’s repeated requests for such a decision over the course of 6 years).
¶9 The appellant additionally argues on review that the administrative judge’s
“premature dismissal” of his appeal “raises an issue of possi ble bias.” PFR File,
Tab 1 at 5. There is a presumption of honesty and integrity on the part of
5
administrative judges that can only be overcome by a subst antial showing of
personal bias, and the Board will not infer bias based on an administrative judge’s
case-related rulings. Vaughn v. Department of the Treasury, 119 M.S.P.R. 605,
¶ 18 (2013). Here, the appellant’s mere disagreement with the administrative
judge’s decision in this case falls well short of the substantial showing required to
establish bias. See id.¶10 The appellant also moves for discovery of certain correspondence between
himself, OPM, and his employing agency. PFR File, Tab 1 at 5. In a
November 20, 2017 acknowledgment order, the administrative judge notified the
parties of their opportunity to engage in discovery and allowed them to initiate
discovery within 30 days of the order. IAF, Tab 2. There is no indication that
the appellant initiated discovery within that timeframe or that he filed a motion to
compel regarding any deficient responses from OPM. Thus, having failed to avail
himself of the Board’s procedures below, he is not entitled to engage in discovery
or to obtain documents on review. See Sanderson v. Office of Personnel
Management, 72 M.S.P.R. 311, 317 (1996), aff’d, 129 F.3d 134 (Fed. Cir. 1997)
(Table).
¶11 Lastly, the appellant moves that, if the Board finds that OPM has not issued
a final decision, we stay proceedings to allow OPM additional time to issue one.
PFR File, Tab 1 at 5. As discussed above, however, the Board lacks jurisdiction
over this appeal, and we decline to hold it in abeyance pending a final decision by
OPM. As correctly noted by the administrative judge, the appellant may file a
new Board appeal, if he wishes, once he receives OPM’s final decision.
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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 t ime
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:
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.
7
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
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requirement of prepayment of fees, costs, or other securi ty. 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 chal lenge to the Board’s
9
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.
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
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.
10
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.as px.
FOR THE BOARD: /s/ for
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.