                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     RIGOBERTO RODRIGUEZ,                            DOCKET NUMBER
                  Appellant,                         AT-0842-15-0782-I-1

                  v.

     OFFICE OF PERSONNEL                             DATE: September 1, 2016
       MANAGEMENT,
                   Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Rigoberto Rodriguez, Orlando, Florida, pro se.

           Kristine Prentice, 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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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 and AFFIRM the initial decision,
     which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).

                     DISCUSSION OF ARGUMENTS ON REVIEW
¶2        The appellant appealed the cancellation of his Federal Employees’
     Retirement System (FERS) annuity supplement. Initial Appeal File (IAF), Tab 1.
     The appellant claims that he has been trying to resolve this issue with the Office
     of Personnel Management (OPM) for over 2 years. IAF, Tab 3 at 2. OPM filed a
     motion to dismiss the appeal, asserting that it has not yet issued a final decision
     and therefore the Board lacks jurisdiction. IAF, Tab 21. After considering the
     appellant’s jurisdictional arguments, the administrative judge issued an initial
     decision, without holding a hearing, dismissing the appeal for lack of jurisdiction.
     IAF, Tab 23, Initial Decision (ID). The appellant has filed a petition for review.
     Petition for Review (PFR) File, Tab 1.
¶3        The administrative judge appropriately dismissed the appeal based on lack
     of jurisdiction. ID at 4-5. An administrative action or order affecting the rights
     or interests of an individual under the provisions of 5 U.S.C. chapter 84
     administered by OPM may be appealed to the Board.           5 U.S.C. § 8461(e)(1).
     Generally, the Board has jurisdiction over retirement issues only after OPM
     issues a final or reconsideration decision.      Johnson v. Office of Personnel
                                                                                            3

     Management, 113 M.S.P.R. 118, ¶ 10 (2010); 5 C.F.R. § 841.308. However, the
     Board may assert jurisdiction over a retirement appeal in the absence of a
     reconsideration decision if OPM has refused or improperly failed to issue a final
     decision. McNeese v. Office of Personnel Management, 61 M.S.P.R. 70, 73-74,
     aff’d, 40 F.3d 1250 (Fed. Cir. 1994) (Table).
¶4         The record contains communication between the appellant and OPM
     concerning his annuity over a 2-year period; however, the appellant first
     requested a decision on June 24, 2015. IAF, Tab 1 at 6-14. The appellant filed
     his appeal on August 19, 2015. Id. at 4. Thus, there is no excessive delay by
     OPM that would indicate a refusal or failure to issue a final decision.
     Cf. Easter v. Office of Personnel Management, 102 M.S.P.R. 568, ¶ 8 (2006)
     (finding that an 18-month delay by OPM in addressing the appellant’s application
     indicated a declination to adjudicate the application). The appellant argues that,
     because OPM was not the original respondent, 3 months passed between his
     request for a decision and the date that OPM became a party in the appeal.
     PFR File, Tab 1 at 3. Three months is not the type of excessive delay that would
     lead the Board to conclude that OPM has improperly failed or refused to issue a
     decision. Cf. Okello v. Office of Personnel Management, 120 M.S.P.R. 498, ¶ 15
     (2014) (finding that OPM’s failure to act for 6 years constituted an appealable
     administrative action because the appellant diligently sought a final decision
     during that time period). OPM indicated that it will issue a decision once a final
     decision is issued in this appeal. IAF, Tab 21. Accordingly, we find that the
     administrative judge correctly determined that the Board lacks jurisdiction over
     this appeal pursuant to 5 U.S.C. § 8461(e)(1) because there is no final decision
     from OPM affecting the appellant’s rights or interest under FERS. 2

     2
       Because the Board lacks jurisdiction for the reasons explained in the initial decision,
     we need not reach the issue of whether a final OPM decision reducing or cancelling the
     appellant’s FERS annuity supplement could be reviewed by the Board. See 5 C.F.R.
     § 842.505(e) (stating that a reduction in an annuity supplement because of excess
     earnings is not subject to the due process procedures described in 5 U.S.C. § 8461(e)).
                                                                                  4

                NOTICE TO THE APPELLANT REGARDING
                   YOUR FURTHER REVIEW RIGHTS
      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 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
                                                                                  5

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.
