                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     STACEY C. DUNCAN,                               DOCKET NUMBER
                  Appellant,                         SF-0842-15-0458-I-1

                  v.

     OFFICE OF PERSONNEL                             DATE: September 1, 2015
       MANAGEMENT,
                   Agency.



                  THIS ORDER IS NONPRECEDENTIAL 1

           Mary Ann Comes, San Clemente, California, for the appellant.

           Cynthia Reinhold, Washington, D.C., for the agency.


                                           BEFORE

                              Susan Tsui Grundmann, Chairman
                                 Mark A. Robbins, Member


                                     REMAND ORDER

¶1         The appellant has filed a petition for review of the initial decision, which
     dismissed her appeal for lack of jurisdiction. For the reasons discussed below, we
     GRANT the appellant’s petition for review, VACATE the initial decision, and



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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     REMAND the case to the regional office for further adjudication in accordance
     with this Order.

                        DISCUSSION OF ARGUMENTS ON REVIEW
¶2         The appellant filed an appeal from a letter dated March 4, 2015, from the
     Office of Personnel Management (OPM) stating that her temporary service with
     the Federal Deposit Insurance Corporation (FDIC) from 1987 to 1995 was not
     creditable under Federal Employees’ Retirement System (FERS). Initial Appeal
     File (IAF), Tab 1. OPM filed a motion to dismiss for lack of jurisdiction, arguing
     that its letter was only an initial, not a final, decision, on the issues raised by the
     appellant.     IAF, Tab 4.    OPM added that, after reviewing the appellant’s
     arguments on appeal, her concerns may be better resolved by the FDIC because
     OPM does not have the authority to correct a former employee’s Standard
     Form 50. Id. The administrative judge granted OPM’s motion, finding that the
     appellant did not provide any evidence that OPM had issued a final decision on
     her request for credit for her service from 1987 to 1995, and thus that the Board
     lacks jurisdiction over her appeal. IAF, Tab 8, Initial Decision. In her petition
     for review, the appellant asserts that OPM’s March 4, 2015 letter constitutes a
     final OPM decision affecting her rights under FERS. Petition for Review (PFR)
     File, Tab 1.
¶3         An administrative action or order affecting the rights or interests of an
     individual or the United States under FERS that is administered by OPM may be
     appealed to the Board. 5 U.S.C. § 8461(e)(1). The Board has recognized three
     situations in which OPM is deemed to have issued an appealable decision under
     FERS. Two of those situations are prescribed by OPM’s regulations: OPM may
     either (1) issue a reconsideration decision under 5 C.F.R. § 841.306, or (2) issue
     an initial decision without reconsideration rights providing an opportunity to
     appeal to the Board under 5 C.F.R. § 841.307. Either type of decision is final and
     appealable to the Board under 5 C.F.R. § 831.308. See 5 C.F.R. §§ 831.306(e),
                                                                                        3

     .307. The third situation derives from Board case law. Specifically, the Board
     will take jurisdiction over an appeal concerning a retirement matter in which
     OPM has refused or improperly failed to issue a final decision. E.g., McNeese v.
     Office of Personnel Management, 61 M.S.P.R. 70, 74, aff’d, 40 F.3d 1250 (Fed.
     Cir. 1994) (Table).      In other words, even an initial decision subject to
     reconsideration or the absence of any decision at all may, under appropriate
     circumstances,    constitute   a   final   “administrative   action   or   decision”
     under 5 U.S.C. § 8461(e)(1). In any event, the Board has jurisdiction over an
     OPM “final decision” regardless of whether it was issued in the form of a
     “reconsideration decision.” The relevant inquiry is whether OPM has issued a
     “final decision” under 5 C.F.R. § 841.308—not whether it has issued a
     “reconsideration decision” under 5 C.F.R. § 841.306.
¶4         Here, the record indicates that, on December 10, 2014, OPM sent the
     appellant a letter responding to her earlier inquiry to allow credit for her
     temporary service with FDIC from 1987 to 1995. IAF, Tab 1. OPM found that
     the service was not creditable. OPM did not indicate that this letter constituted
     an initial decision and it did not provide the appellant with the right to seek
     reconsideration. Id.
¶5         Nonetheless, the appellant sought reconsideration of OPM’s decision. By
     letter dated December 13, she argued that a Special Committee had ordered that
     FDIC convert all Liquidation Graded (LG) employees, of which she was one, to
     General Schedule classification of eligible status effective from their original hire
     dates through their dates of conversion in May 1995. 2 Id. On March 4, 2015,


     2
        In her December 13, 2014 letter to OPM, the appellant characterizes her
     correspondence as a request for correction under the Federal Erroneous Retirement
     Coverage Corrections Act (FERCCA). FERCCA addresses the problems created when
     employees are in the wrong retirement plan for an extended period. Poole v.
     Department of the Army, 117 M.S.P.R. 516, ¶ 13 (2012); 5 C.F.R. § 839.101(a). An
     employee may seek relief under FERCCA from OPM. See Archer v. Office of
     Personnel Management, 120 M.S.P.R. 68, ¶ 6 (2013). We make no finding about
                                                                                            4

     OPM responded to the appellant’s letter of December 13, 2014, reiterating the
     decision it made in its letter of December 10, 2014.           Id.   It found that the
     appellant’s LG service remained noncreditable under FERS. Id.
¶6         Under these circumstances, we find that OPM’s March 4, 2015 letter is
     tantamount to an appealable reconsideration decision that affects the appellant’s
     rights or interests under FERS.        Therefore, we conclude that the Board has
     jurisdiction to adjudicate her appeal.      See, e.g., Luna v. Office of Personnel
     Management, 89 M.S.P.R. 465, ¶¶ 8-10 (2001).

                                            ORDER
           For the reasons discussed above, we REMAND this case to the regional
     office for further adjudication in accordance with this Remand Order.




     FOR THE BOARD:                              ______________________________
                                                 William D. Spencer
                                                 Clerk of the Board
     Washington, D.C.




     whether the appellant’s request for FERS service credit was properly a request for relief
     under FERCCA.
