                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     LEO AR FORT LEAVENWORTH,                         DOCKET NUMBERS
                   Appellant,                         DE-0842-14-0412-I-1
                                                      DE-0842-14-0408-I-1
                  v.                                  DE-0842-14-0409-I-1
                                                      DE-0842-14-0410-I-1
     DEPARTMENT OF THE ARMY,
                 Agency.                              DATE: February 2, 2015



             THIS FINAL ORDER IS NO NPRECEDENTIAL 1

           Janice L. Jackson, Leavenworth, Kansas, for the appellants.

           Anne E. Hinkebein, Esquire, Fort Leavenworth, Kansas, for the agency.


                                           BEFORE

                              Susan Tsui Grundmann, Chairman
                              Anne M. Wagner, Vice Chairman
                                 Mark A. Robbins, Member


                                       FINAL ORDER
¶1         The appellants have filed a petition for review of the initial decision, which
     dismissed their appeals for lack of jurisdiction. 2 Generally, we grant petitions



     1
        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).
     2
      The administrative judge consolidated the appeals filed by three appellants pursuant to
     5 C.F.R. § 1201.36(a)(1). MSPB Docket No. DE-0842-14-0412-I-1, Consolidated
                                                                                         2

     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 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, which is now the Board’s final decision.               5 C.F.R.
     § 1201.113(b).
¶2        The appellants are employees within the agency’s medical command
     assigned to the agency’s United States Disciplinary Barracks and Military
     Corrections Complex.      CAF, Tab 4 at 7-8.        After each of their respective
     appointments, the agency began the process of determining and obtaining special
     retirement coverage approval—specifically, law enforcement officer (LEO)
     retirement coverage—for the appellants’ positions. Id. at 8. Central to the issue
     in this appeal, the agency has not yet reached a final decision as to whether the
     appellants qualify for LEO retirement coverage. 3         Id. at 11; see 5 C.F.R.
     §§ 842.801(b) (the Office of Personnel Management (OPM) delegation of
     authority to agency regarding special retirement coverage approval), 842.807(a)


     Appeal File (CAF), Tab 1; see MSPB Docket Nos. DE-0842-14-0408-I-1, DE-0842-14-
     0409-I-1, and DE-0842-14-0410-I-1.
     3
       The agency presented a lengthy narrative explanation to the administrative judge
     outlin ing why a final decision on the appellants’ LEO coverage has not yet been
     reached. See CAF, Tab 4 at 5-7.
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     (an employee may appeal an administrative determination of LEO retirement
     coverage to the Board only after a final decision is rendered).
¶3        The appellants filed individual appeals contending that the agency
     determined they were not entitled to LEO retirement coverage. See, e.g., MSPB
     Docket No. DE-0842-14-0408-I-1, Initial Appeal File, Tab 1. The administrative
     judge consolidated the appellants’ appeals and issued notice of their burden to
     establish the Board’s jurisdiction over such an appeal, including the need to
     nonfrivolously allege that the agency reached a final decision on their LEO
     retirement coverage or that the agency has refused to render such a decision.
     CAF, Tab 7. The administrative judge found that the agency had not rendered a
     final decision on the appellants’ retirement coverage eligibility and that it
     remained in the process of doing so, and he dismissed the consolidated appeals
     for lack of jurisdiction.    CAF, Tab 11, Initial Decision (ID) at 4-5.        The
     appellants have filed a petition for review of the initial decision, and the agency
     has filed a response in opposition.     MSPB Docket No. DE-0842-14-0412-I-1,
     Petition for Review (PFR) File, Tabs 1, 3.
¶4        Board review of an administrative determination of LEO retirement
     eligibility is generally limited to a final agency decision.      See Fitzgerald v.
     Department of the Navy, 70 M.S.P.R. 152, 155-56 (1996), overruled on other
     grounds, Streeter v. Department of Defense, 80              M.S.P.R. 481,    ¶¶ 6-8
     (1998); 5 C.F.R. § 842.807(a). The Board has recognized a limited exception to
     this principle when the agency, or OPM, if involved in the determination at issue,
     refuses to render a final decision.          See Blade v. Office of Personnel
     Management, 97 M.S.P.R. 92, ¶ 9 (2004); McGuire v. Department of Veterans
     Affairs, 76 M.S.P.R. 259, 262-63 (1997). In such cases, the Board will assume
     jurisdiction over the determination at issue, even in the absence of a final
     decision. See Blade, 97 M.S.P.R. 92, ¶ 9.
¶5        We agree with the administrative judge that the appellants have failed to
     nonfrivolously allege that the agency has refused to render a final decision on
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     their LEO retirement coverage. ID at 4-5. Although the appellants allege that
     their retirement coverage eligibility has been pending with the agency for a
     number of years, the agency demonstrated below that it is in the process of
     determining the LEO retirement eligibility for a number of agency positions,
     including the appellants’.    See CAF, Tab 4 at 8-10.        The agency has also
     demonstrated on petition for review that the process of determining the
     appellants’ LEO retirement eligibility remains active and ongoing. See PFR File,
     Tab 3. We thus agree with the administrative judge that the appellants cannot
     establish Board jurisdiction over their appeals based on the agency’s refusal to
     issue a final decision. ID at 4-5.
¶6        The facts of this case, moreover, differentiate it from the few instances
     where the Board has assumed jurisdiction over an administrative determination
     concerning retirement eligibility in the absence of a final decision.     See, e.g.,
     DeGrant v. Office of Personnel Management, 107 M.S.P.R. 414, ¶ 13 (2007);
     Blade, 97 M.S.P.R. 92, ¶ 6. In those cases, for example, the Board found that the
     appellants nonfrivolously alleged jurisdiction based on OPM’s refusal to respond
     to, or acknowledge, the employees’ requests for a final decision or orders to show
     cause issued by an administrative judge in a Board appeal seeking to determine if,
     and whether, a final decision would be rendered. See DeGrant, 107 M.S.P.R.
     414, ¶ 13; Blade, 97 M.S.P.R. 92, ¶ 9. Here, by contrast, the agency continues to
     express an interest and intent to render a final decision. CAF, Tab 4 at 8-10; PFR
     File, Tab 3. Once final decisions are rendered and if they are unfavorable, the
     appellants can file appeals with the Board challenging the merits of those
     determinations. See McGuire, 76 M.S.P.R. at 263; 5 C.F.R. § 842.807(a).
¶7        Under the present circumstances of this case, we find no evidence that the
     agency has refused to render a decision on the appellants’ LEO retirement
     eligibility. The administrative judge’s jurisdictional dismissal of the consolidated
     appeals is therefore AFFIRMED.
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                 NOTICE TO THE APPELLANT REGARDING
                    YOUR FURTHER REVIEW RIGHTS
     You have the right to request review of this final decision by the United
States Court of Appeals for the Federal Circuit. 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).
     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 your court
appeal, you may visit our website at http://www.mspb.gov/probono for a list of
attorneys who have expressed interest in providing pro bono representation for
Merit Systems Protection Board appellants before the court. The Merit Systems
                                                                           6

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.
