                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     DANIELLA ORTOLANO,                              DOCKET NUMBER
                  Appellant,                         NY-844E-15-0106-I-1

                  v.

     OFFICE OF PERSONNEL                             DATE: October 27, 2015
       MANAGEMENT,
                   Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Daniel Kravetz, New York, New York, for the appellant.

           Linnette Scott, 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 because the Office of Personnel
     Management (OPM) has not yet issued a final decision in her request to reinstate
     a disability retirement annuity. Generally, we grant petitions such as this one


     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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     only when: 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. 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.       Except as
     expressly MODIFIED by this Final Order to provide information about the
     appellant’s   termination   from   her   employing   agency,    we   AFFIRM     the
     initial decision.
¶2         The appellant filed this appeal pursuant to a January 28, 2015 letter from
     OPM she received regarding her request to reinstate her disability retirement
     annuity under the Federal Employees’ Retirement System (FERS). Initial Appeal
     File (IAF), Tab 1. The appellant was removed from her position as a Service
     Representative, GS-0962-08, with the Social Security Administration (SSA)
     effective February 27, 2013, based on a charge of excessive absence. Id. at 5;
     Ortolano v. Social Security Administration, MSPB Docket No. NY-0752-13-
     0155-I-1, Final Order at 2 (Feb. 4, 2015) (Final Order). While her appeal of the
     removal action was pending at the Board’s New York Field Office, OPM
     approved her application for disability retirement.        Ortolano v. Office of
     Personnel Management, MSPB Docket No. NY-844E-13-0214-I-1, Initial
     Decision at 2 (Aug. 20, 2013). Nevertheless, she proceeded with her removal
     appeal, and the administrative judge reversed the removal action and directed the
     SSA to reinstate her. Ortolano v. Social Security Administration, MSPB Docket
                                                                                       3

     No. NY-0752-13-0155-I-1, Initial Decision at 16 (Feb. 25, 2014). The appellant
     returned to duty on March 19, 2014, and OPM terminated her disability
     retirement benefits. IAF, Tab 1 at 5, Tab 11 at 1.
¶3        The SSA filed a petition for review in the removal appeal.         The Board
     granted the petition for review and remanded the appeal for further analysis.
     Final Order at 5-6. That matter is still pending in the New York Field Office.
     Her return to duty, however, was unsuccessful. IAF, Tab 1 at 5. She left her
     position on July 30, 2014, notifying OPM that she could not continue to work and
     requesting that her disability retirement annuity be reinstated. IAF, Tab 8 at 1-2,
     Tab 11 at 1. The SSA granted her leave without pay not to exceed July 12, 2015.
     IAF, Tab 8 at 4-5. In OPM’s January 28, 2015 response, prepared as a result of
     an inquiry on the appellant’s behalf by U.S. Senator Kristen Gillibrand, OPM
     stated that she would have to reapply for disability retirement and submit updated
     medical documentation. OPM enclosed an application for disability retirement.
     IAF, Tab 4, Tab 6 at 6. The appellant filed this appeal. IAF, Tab 1.
¶4        On appeal, the administrative judge found that the January 28, 2015 letter
     did not represent a final decision from OPM that would confer Board jurisdiction.
     IAF, Tab 12, Initial Decision (ID) at 4. The administrative judge found that the
     extent to which the appellant had informed OPM of her inability to work was
     unclear, and in any event, she was not yet separated from the agency. Id.
¶5        The appellant filed this petition for review. Petition for Review (PFR) File,
     Tab 1.   On review, the appellant explains that she was terminated effective
     February 4, 2015. Id. at 1. She submitted a Standard Form 50, dated April 3,
     2015, which documents her termination. 2 Id. at 4. The initial decision, which
     was issued on July 7, 2015, states that she had not been separated. ID at 1, 4. To


     2
       The appellant has not explained why she failed to submit this document before the
     record closed below. See 5 C.F.R. § 1201.115(d). However, she was likely unaware
     that the SSA had terminated her, as her final pleading submitted on appeal was dated
     April 1, 2015. IAF, Tab 11.
                                                                                      4

     the extent that the initial decision was incorrect when it was issued, we now
     correct it.
¶6         The appellant argues that OPM never gave her any information regarding
     how she might have her annuity reinstated if her recovery was short lived. PFR
     File, Tab 1 at 1. She further argues that OPM waited 6 months after she informed
     that agency that she could no longer work to notify her that she had to reapply for
     disability retirement benefits. Id. at 2. The appellant asserts that, because OPM
     has not yet reinstated her annuity, her situation is analogous to the one in Okello
     v. Office of Personnel Management, 120 M.S.P.R. 498, ¶¶ 14-16 (2014), wherein
     the Board intervened because OPM had improperly refused or failed to issue a
     final decision. PFR File, Tab 1 at 2.
¶7         Generally, the Board has jurisdiction over OPM determinations affecting an
     appellant’s rights or interests under the retirement system only after OPM has
     issued        a   final   decision.     McNeese     v.   Office    of   Personnel
     Management, 61 M.S.P.R. 70, 73-74, aff’d, 40 F.3d 1250 (Fed. Cir. 1994)
     (Table); 5 C.F.R. § 841.308. The Board, however, will take jurisdiction over a
     retirement-related appeal where OPM has refused or improperly failed to issue a
     final decision. Okello, 120 M.S.P.R. 498, ¶ 14; McNeese, 61 M.S.P.R. at 74. In
     such a case, the Board will consider the totality of the circumstances to find that
     OPM’s failure to act on the matter itself constitutes an appealable administrative
     action affecting the appellant’s rights under FERS. Okello, 120 M.S.P.R. 498,
     ¶ 15; see Ramirez v. Office of Personnel Management, 114 M.S.P.R. 511, ¶ 7
     (2010) (finding that the Board will take jurisdiction, even absent an OPM
     reconsideration decision, when the appellant has repeatedly requested such a
     decision and the evidence indicates that OPM does not intend to issue one).
¶8         The facts here do not support a finding that OPM failed to act upon the
     appellant’s request in a way that is itself an appealable administrative action. In
     Okello, the Board considered that the appellant (and later, his widow) diligently
     sought a final decision from OPM for more than 6 years. Okello, 120 M.S.P.R.
                                                                                      5

     498, ¶ 15. The appellant has not waited for a final decision for a period of years,
     and she has not provided any evidence, e.g., copies of correspondence with OPM,
     showing that she has diligently sought one.       If a disability annuity has been
     stopped because an annuitant has recovered, she must reestablish her eligibility
     for the annuity if she later seeks to have it reinstated. 5 C.F.R. § 844.404(a),
     (b)(2)(i). The January 28, 2015 letter advised her to resubmit her application for
     a disability retirement annuity with current medical information. IAF, Tab 6 at 6.
     The record does not show if or when she did so.
¶9         As this appeal is not yet properly before the Board, we cannot address the
     merits of the appellant’s claim that she is eligible for reinstatement of her
     annuity. We thus affirm the finding of the administrative judge dismissing the
     appeal for lack of jurisdiction.

                       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:
                                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).
                                                                                    6

      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
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.
