                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     ROBERT F. STONE,                                DOCKET NUMBER
                   Appellant,                        PH-0841-16-0311-I-1

                  v.

     OFFICE OF PERSONNEL                             DATE: September 30, 2016
       MANAGEMENT,
                   Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Robert F. Stone, Conway, Massachusetts, pro se.

           Kristopher L. Rogers, 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 his 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


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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     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.       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. Except as expressly MODIFIED by
     this Final Order, to clarify that the issues in this appeal are not moot, we AFFIRM
     the initial decision, still DISMISSING the appeal for lack of jurisdiction.

                                       BACKGROUND
¶2        On March 29, 2016, OPM issued a reconsideration decision denying the
     appellant’s request for a supplemental annuity under 5 U.S.C. § 8468(b). Initial
     Appeal File (IAF), Tab 4 at 12-14. The appellant filed a timely appeal with the
     Board. IAF, Tab 1. In addition to contesting the merits of OPM’s finding that he
     was not eligible for a supplemental annuity, he objected that OPM took 4 years to
     render its decision. Id. He also raised a claim that OPM had improperly failed to
     resume deducting Federal Employee Group Life Insurance (FEGLI) premiums
     when he left reemployed annuitant status. Id. He further contended that OPM
     discriminated against him on the bases of age and disability. Id. Finally, he
     argued   that   OPM    violated   the   Uniformed     Services   Employment     and
     Reemployment Rights Act of 1994 (USERRA) by denying him a benefit of
     employment in reprisal for exercising his right to take leave without pay under
     Executive Order 5396. IAF, Tab 4 at 8-9. 2


     2
       Executive Order 5396 provides disabled veterans in the executive branch a right to
     take annual leave, sick leave, or leave without pay to obtain necessary medical
                                                                                      3

¶3        In a submission dated June 16, 2016, OPM indicated that it was rescinding
     its March 29, 2016 reconsideration decision. IAF, Tab 10. OPM moved that the
     appeal be dismissed for lack of jurisdiction and indicated that it would further
     review the appellant’s claim for a supplemental annuity and issue a new final
     decision after the appeal was dismissed. Id. The appellant was not provided an
     opportunity to respond to OPM’s motion. On June 20, 2016, the administrative
     judge issued an initial decision dismissing the appeal for lack of jurisdiction.
     IAF, Tab 11, Initial Decision (ID). The initial decision erroneously indicated that
     OPM’s decision concerned an overpayment of annuity benefits. ID at 1. This
     petition for review followed. Petition for Review (PFR) File, Tab 1. OPM has
     responded. PFR File, Tab 4.

                                        ANALYSIS
¶4        If OPM completely rescinds a reconsideration decision, its rescission
     completely divests the Board of jurisdiction over the appeal in which the
     reconsideration decision is at issue and the appeal must be dismissed. Rorick v.
     Office of Personnel Management, 109 M.S.P.R. 597, ¶ 5 (2008).          Here, OPM
     asserts that it has “completely rescinded” its March 29, 2016 reconsideration
     decision and that it will issue a new final decision regarding the appellant’s
     request for a supplemental annuity. IAF, Tab 10. While the appellant objects to
     the dismissal of his appeal, he does not dispute that the March 29, 2016
     reconsideration decision has been rescinded. Thus, we conclude that OPM has
     completely rescinded its reconsideration decision, thereby removing the matter
     from the Board’s jurisdiction. Rorick, 109 M.S.P.R. 597, ¶ 5.
¶5        We further find that the Board lacks jurisdiction over the appellant’s claim
     that OPM’s decision was unduly delayed. The appellant correctly observes that


     treatment, provided that the employee gives prior notice and provides appropriate
     medical documentation. See Davison v. Department of Veterans Affairs, 115 M.S.P.R.
     640, ¶ 8 (2011).
                                                                                        4

     the Board may take jurisdiction over a retirement appeal if the appellant has made
     repeated requests for a reconsideration decision and the evidence shows that OPM
     does not intend to issue a final decision. See, e.g., Fletcher v. Office of Personnel
     Management, 118 M.S.P.R. 632, ¶ 5 (2012). However, we find no authority for
     the proposition that, once OPM has issued a final decision, its delay in issuing the
     decision constitutes “an administrative action or order” affecting an appellant’s
     rights or interests under the Federal Employees’ Retirement System. See 5 U.S.C.
     § 8461(e).
¶6         As to the appellant’s claim concerning FEGLI premiums, the Board
     generally lacks jurisdiction over FEGLI disputes. Richards v. Office of Personnel
     Management, 97 M.S.P.R. 291, ¶ 6 (2004). Furthermore, in the absence of an
     appealable matter, we lack jurisdiction to consider the appellant’s claims of
     discrimination based on age and disability.       Mueller v. U.S. Postal Service,
     75 M.S.P.R. 424, 426 (1997). Finally, the appellant’s claim that OPM denied him
     a benefit of employment in reprisal for exercising his rights under Executive
     Order 5396 is not cognizable under 38 U.S.C. § 4311, which prohibits an
     “employer” from discriminating against an individual based on service in the
     uniformed services or the exercise of protected USERRA activity. The record
     does not reflect that OPM is, or ever was, the appellant’s “employer.”
¶7         We agree with the appellant that the administrative judge should not have
     dismissed the appeal without first providing him an opportunity to object to the
     agency’s     motion   to   dismiss.   See   Judges’   Handbook,     § 5.2(b)   (“The
     [administrative judge] should not rule on substantive, controversial, or complex
     motions without allowing the opposing party an opportunity to object.”). The
     administrative judge also erred in stating that the reconsideration decision
     concerned an overpayment of annuity benefits. However, we find these errors did
     not adversely affect the appellant’s substantive rights.         See Karapinka v.
     Department of Energy, 6 M.S.P.R. 124, 127 (1981).
                                                                                     5

¶8        We also agree with the appellant that the issues on appeal are not moot,
     because he has not received the relief he would have obtained if the matter had
     been adjudicated and he had prevailed. See Rorick, 109 M.S.P.R. 597, ¶ 6. Thus,
     rather than dismissing the appeal outright, we dismiss it without prejudice to the
     appellant’s filing an appeal from any future reconsideration decision from OPM
     concerning his entitlement to a supplemental annuity. See id. After OPM issues
     a new reconsideration decision, the appellant may appeal to the appropriate
     regional office if he disagrees with that decision.   See id., ¶ 7.   Furthermore,
     considering the significant amount of time it took OPM to issue the
     reconsideration decision that it has now rescinded, the appellant may also appeal
     to the appropriate regional office if OPM fails to issue a new reconsideration
     decision within 90 calendar days of the date of this Final Order.      Any future
     appeal must be filed within the time limits set forth in the Board’s regulations.
     See 5 C.F.R. § 1201.22.

                     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 review of this final decision by the U.S. 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
                                                                                  6

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 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
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:                            ______________________________
                                          Jennifer Everling
                                          Acting Clerk of the Board
Washington, D.C.
