                          UNITED STATES OF AMERICA
                       MERIT SYSTEMS PROTECTION BOARD


     FRANK W. WHITE,                                 DOCKET NUMBER
                  Appellant,                         CH-0831-14-0421-I-1

                  v.

     OFFICE OF PERSONNEL                             DATE: January 29, 2015
       MANAGEMENT,
                   Agency.



                THIS FINAL ORDER IS NO NPRECEDENTIAL 1

           Frank W. White, Chicago, Illinois, pro se.

           Christopher H. Ziebarth, Washington, D.C., for the agency.


                                           BEFORE

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


                                       FINAL ORDER
¶1         The appellant has filed a petition for review of the initial decision, which
     vacated a letter of the Office of Personnel Management (OPM) confirming its
     prior denial of the appellant’s application for disability retirement benefits and
     remanded the appeal to OPM for issuance of a new decision regarding whether

     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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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 appellant is entitled to a $10,000 optional life insurance annuity. 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 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 VACATE the initial decision, dismiss this appeal for
     lack of jurisdiction, and FORWARD the appellant’s claim regarding his possible
     entitlement to an optional life insurance annuity to OPM.


                                      BACKGROUND
¶2        The appellant filed an appeal of a March 18, 2014 letter from OPM which
     informed him that he was not entitled to retirement benefits under the Civil
     Service Retirement System (CSRS) based on a prior Board decision.             Initial
     Appeal File (IAF), Tab 1.     In that decision, the Board denied the appellant’s
     petition for review of an initial decision that affirmed OPM’s denial of his
     application for disability retirement benefits because he failed to establish that he
     had the requisite 5 years of creditable civilian service.       White v. Office of
     Personnel Management, MSPB Docket No. CH-0831-96-0942-I-1, Final Order
     at 1 (May 29, 1997); see White v. Office of Personnel Management, MSPB
     Docket No. CH-0831-96-0942-I-1, Initial Decision at 4 (Dec. 7, 1996).
¶3        The agency filed a motion to dismiss the appeal as res judicata, asserting
     that the appellant had previously litigated the denial of his retirement benefits.
     IAF, Tab 6 at 4. According to the administrative judge, during a telephonic status
                                                                                              3

     conference, the appellant indicated that he was not appealing the denial of his
     disability retirement benefits but rather that his appeal related to his entitlement
     to a $10,000 optional insurance annuity. IAF, Tab 10 at 2. The administrative
     judge issued an order summarizing the status conference and afforded the
     appellant 5 days to object. See id. at 3. In response to the administrative judge’s
     order, the appellant submitted two separate corrections to the order in which he
     appears to contest his involvement in the prior litigation of the denial of his
     application for disability retirement benefits.       IAF, Tabs 13-14.       In an initial
     decision, issued without holding the appellant’s requested hearing,                    the
     administrative judge found that a prerequisite for Board jurisdiction over an
     individual’s appeal of a retirement matter is an OPM reconsideration decision.
     IAF, Tab 15, Initial Decision (ID) at 3. The administrative judge further found
     that OPM had not previously issued a decision on the appellant’s optional
     insurance annuity claim, and thus he vacated what he described as OPM’s
     March 18, 2014 decision and remanded the matter to OPM for consideration of
     the appellant’s claim that he is entitled to a $10,000 optional insurance annuity.
     ID at 4.
¶4         The appellant has filed a petition for review in which he asserts that the
     initial decision fails to note his correction to the status conference summary, that
     the administrative judge failed to order OPM to issue a decision within a certain
     time frame, and that OPM’s representative has harassed him. Petition for Review
     (PFR) File, Tab 1.       The agency has filed a response in opposition to the
     appellant’s petition. PFR File, Tab 4. The appellant has filed a reply. 2 PFR File,
     Tab 5.


     2
       After the record closed on review, the appellant requested leave to file an additional
     pleading. PFR File, Tab 7; see 5 C.F.R. § 1201.114(k) (the record on review closes on
     expiration of the period for filing the reply to the response to the petition for review or
     on expiration of the period for filing a response to the cross petition for review,
     whichever is later). Once the record closes, no additional evidence or argument will be
     accepted unless it is new and material as defined in 5 C.F.R. § 1201.115(d) and the
                                                                                             4

                      DISCUSSION OF ARGUMENTS ON REVIEW
¶5         An individual whose rights under CSRS are affected by an administrative
     action or order may appeal to the Board. 5 U.S.C. §§ 8347(d)(1). The Board
     generally has jurisdiction over the appeal, however, only after OPM has issued a
     final or reconsideration decision on the matter.        Tatum v. Office of Personnel
     Management, 82 M.S.P.R. 96, ¶ 7 (1999); 5 C.F.R. §§ 831.110.
¶6         As noted, the appellant indicated that he is not appealing the denial of his
     disability retirement benefits; rather, his appeal concerns his entitlement to a
     $10,000 optional insurance annuity.        IAF, Tab 6 at 8, Tab 10 at 2.           OPM,
     however, has not issued a decision concerning the appellant’s claim as to that
     matter. Further, it does not appear that OPM has refused to issue such a decision
     but rather construed his letter as a claim for disability retirement benefits. See
     IAF, Tab 6 at 7. In the absence of an OPM reconsideration decision, the Board
     lacks jurisdiction over the appellant’s claim for an optional life insurance
     annuity. 3


     party submitting it shows that the evidence or argument was not readily availab le before
     the record closed. 5 C.F.R. § 1201.114(k).
     In his motion, the appellant requests leave to submit additional evidence in support of
     his claim that OPM’s representative has harassed him. PFR File, Tab 7 at 2. The
     appellant, however, has failed to show that the information is new evidence because he
     has failed to show it was unavailable before the record closed despite due diligence.
     See Grassell v. Department of Transportation, 40 M.S.P.R. 554, 564 (1989) (to
     constitute new evidence, the information contained in the documents, not just the
     documents themselves, must have been unavailable despite due diligence when the
     record closed). Moreover, the appellant has failed to show that such information is
     material because he has not shown how this evidence provides a basis for reversing the
     in itial decision. See Russo v. Veterans Administration, 3 M.S.P.R. 345, 349 (1980).
     Accordingly, we deny the appellant’s motion. In any event, there is nothing improper
     in an agency changing its representative before the Board; such a practice is not
     uncommon when a petition for review is filed. Furthermore, there is nothing improper
     in a representative not having or asserting firsthand knowledge of the facts in an appeal.
     3
       As part of his remand decision, the administrative judge characterized OPM’s
     March 18, 2014 letter as a reconsideration decision and vacated it. ID at 4; see IAF,
     Tab 1 at 11. We find, however, that the March 18, 2014 letter, which was not issued in
     response to a timely request for reconsideration and did not provide the appellant with
                                                                                            5

¶7         Accordingly, we dismiss this appeal for lack of jurisdiction.                  We
     FORWARD the appellant’s claim regarding his possible entitlement to an
     optional life insurance annuity to OPM. 4 This is the final decision of the Merit
     Systems Protection Board.

                      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).




     notice regarding his right to request an appeal before the Board under 5 C.F.R.
     § 831.110, did not constitute a reconsideration decision by OPM. See 5 C.F.R.
     § 831.109.
     4
       Although the exact nature of the appellant’s claim is not clear, we note that the Board
     lacks jurisdiction to review a decision relating to an annuitant’s insurance coverage.
     See 5 U.S.C. § 8715 (providing that the Un ited States Court of Federal Claims or the
     Un ited States district courts, not the Board, have jurisdiction over life insurance
     benefits paid under the Federal Employees’ Group Life Insurance); see, e.g., Richards
     v. Office of Personnel Management, 97 M.S.P.R. 291, ¶ 6 (2004). We make no finding
     at this time regarding Board jurisd iction over an appeal from an OPM decision on the
     appellant’s optional life insurance annuity claim. See 5 U.S.C. § 1204(h) (stating that
     the Board shall not issue advisory opin ions).
                                                                                  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 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
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.
