                          UNITED STATES OF AMERICA
                       MERIT SYSTEMS PROTECTION BOARD


     WALTER E. HYDE,                                 DOCKET NUMBER
                  Appellant,                         DA-0845-14-0491-I-1

                  v.

     OFFICE OF PERSONNEL                             DATE: February 10, 2015
       MANAGEMENT,
                   Agency.



             THIS FINAL ORDER IS NO NPRECEDENTIAL 1

           Walter E. Hyde, Killeen, Texas, pro se.

           Karla W. Yeakle, 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
     dismissed for lack of jurisdiction his appeal of a reconsideration decision issued
     by the Office of Personnel Management (OPM). Generally, we grant petitions
     such as this one only when: the initial decision contains erroneous findings of

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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     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 administrative judge dismissed this appeal for lack of jurisdiction
     because OPM rescinded the reconsideration decision that was the subject of this
     appeal, and the appellant failed to respond to the administrative judge’s order to
     show cause why the case should not be dismissed. Initial Appeal File (IAF), Tab
     10 at 4, Tab 11, Tab 12, Initial Decision (ID) at 2. The appellant has filed a
     petition for review of the initial decision, arguing the merits of his appeal without
     addressing the issue of jurisdiction before the Board. Petition for Review (PFR)
     File, Tab 1. OPM has responded in opposition to the appellant’s petition. PFR
     File, Tab 4.
¶3        The Board’s jurisdiction is not plenary; it 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). The Board generally
     has jurisdiction to adjudicate an individual’s rights and interests under the Civil
     Service   Retirement    System    only    after   OPM     has      rendered       a    final   or
     reconsideration   decision   on   the    issue    in   question.      See     5       U.S.C.   §
     8347(d)(1); 5 C.F.R. § 831.110.     However, the Board may assume jurisdiction
                                                                                       3

     under particular circumstances if OPM has failed to render a final decision or
     improperly denied the individual an opportunity for reconsideration.       A “final
     decision” is a decision OPM issues after a request for reconsideration of an initial
     decision, or a decision OPM designates as final. See 5 C.F.R. § 831.109(f). In
     either case, the decision should set forth the individual’s Board appeal rights. See
     id.   The appellant has the burden of proving jurisdiction by preponderant
     evidence. See 5 C.F.R. § 1201.56(a)(2).
¶4         In this case, the administrative judge dismissed the appeal because OPM
     rescinded its reconsideration decision.    ID at 2.    We note that, in the letter
     rescinding the reconsideration decision, OPM agreed to issue a new final decision
     addressing the appellant’s concerns and provide new appeal rights. IAF, Tab 10
     at 4. On review, the appellant submits no evidence or argument indicating that
     OPM has completed its proceedings and issued a final decision or a new
     reconsideration decision with appeal rights. Moreover, he does not dispute that
     OPM rescinded its May 19, 2014 reconsideration decision, which divested the
     Board of jurisdiction over this appeal.      See Tamayo v. Office of Personnel
     Management, 56 M.S.P.R. 620, 622 (1993). Because the appellant has shown no
     basis for finding jurisdiction over his appeal, we deny the appellant’s petition for
     review.

                     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
                                                                                  4

     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
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.
