                          UNITED STATES OF AMERICA
                       MERIT SYSTEMS PROTECTION BOARD


     BARRY J. GARNER,                                DOCKET NUMBER
                   Appellant,                        DE-0842-14-0476-I-1

                  v.

     DEPARTMENT OF THE ARMY,                         DATE: February 5, 2015
                 Agency.



             THIS FINAL ORDER IS NO NPRECEDENTIAL 1

           Janice L. Jackson, Leavenworth, Kansas, for the appellant.

           Anne E. Hinkebein, Esquire, Fort Leavenworth, Kansas, 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 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        A nonprecedential order is one that the Board has determined does not add
     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 Parties may cite nonprecedential orders,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

     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.         Except as
     expressly modified by this Final Order, we AFFIRM the initial decision.

                                      BACKGROUND
¶2         Effective April 7, 2001, the appellant resigned from his law enforcement
     officer (LEO) position as a GS-11 Regulatory Supervisory Specialist with the
     Department of Justice’s Bureau of Prisons (BOP) after approximately 16 years of
     service. 2 IAF, Tab 7 at 63. On October 12, 2010, the appellant was appointed to
     a secondary LEO position as a GS-12 Regulatory Supervisory Specialist with the
     agency’s Military Correctional Complex (MCC) in Fort Leavenworth, Texas. Id.
     at 35, 40.
¶3         On or before May 1, 2014, the appellant contacted the agency’s Army
     Benefits Center (ABC) and inquired about a potential retirement date of
     January 31, 2015, under LEO special retirement coverage. See IAF, Tab 7 at 34;
     see also 5 U.S.C. § 8412(d) (establishing special retirement eligibility for LEOs
     under the Federal Employees Retirement System). By email dated May 1, 2014,


     2
       The “Service History Detail” for the appellant indicates that he was employed by BOP
     from September 2, 1984, to January 15, 1985, and from December 8, 1985, until h is
     April 7, 2001 resignation. Initial Appeal File (IAF), Tab 11 at 15. The Standard Form
     50 documenting the appellant’s resignation identifies his service computation date as
     July 24, 1985. IAF, Tab 7 at 63.
                                                                                              3

     an ABC Human Resources (HR) Specialist informed the appellant that he was
     ineligible to retire on January 31, 2015. IAF, Tab 1 at 33-34. On May 28, 2014,
     the appellant sent an email to an HR Specialist in Fort Leavenworth’s Civilian
     Personnel Advisory Center (CPAC) seeking assistance concerning his “retirement
     problem.” Id. at 31. In response, the CPAC HR Specialist sent the appellant an
     email on May 30, 2014, informing him that, due to his break in service of greater
     than 3 days, he was not eligible to retire under LEO special retirement coverage
     in January 2015. Id. at 29-30; see 5 C.F.R. § 842.803(b).
¶4         During June 2014, the appellant communicated with the CPAC HR
     Specialist and the MCC’s Resource Manager via email concerning his eligibility
     for LEO special retirement coverage. See IAF, Tab 1 at 21-29. By email dated
     June 19, 2014, the Resource Manager notified the appellant that he was ineligible
     for LEO special retirement coverage because of the break in service between his
     position with BOP and his current position. Id. at 22-23.
¶5         On July 15, 2014, the appellant filed a Board appeal and requested a
     hearing, alleging that the agency had improperly denied his request for LEO
     special retirement coverage. IAF, Tab 1 at 2-3. The administrative judge issued
     a show cause order in which he stated that the Board might not have jurisdiction
     over this appeal because it appeared that the agency had not issued a final
     decision denying the appellant’s request for LEO service credit. 3 IAF, Tab 8 at 2.

     3
       In the show cause order, the administrative judge indicated that the relevant regulation
     for purposes of determining the Board’s jurisdiction over this appeal is 5 C.F.R.
     § 842.807(a), which pertains to the denial of an employee’s request for approval of a
     position as a secondary position. See IAF, Tab 8 at 2. It is undisputed, however, that
     the appellant’s position is a secondary LEO position. See IAF, Tab 7 at 40. The
     appellant is alleging that the agency improperly denied him LEO special retirement
     coverage due to his failure to satisfy the conditions in 5 C.F.R. § 842.803(b) as a result
     of his break in service. See IAF, Tab 1 at 9. Consequently, as the administrative judge
     made clear in the initial decision, the Board’s jurisdiction in th is appeal is governed by
     5 C.F.R. § 842.807(b), which pertains to the denial of LEO special retirement coverage
     to an individual serving in an approved secondary LEO position because of his failure
     to meet the conditions in 5 C.F.R. § 842.803(b). See IAF, Tab 12, Initial Decision (ID)
     at 2.
                                                                                     4

     Accordingly, the administrative judge directed the appellant to submit evidence
     and argument to show that the Board has jurisdiction over his appeal. Id. In
     response, the appellant asserted that the Board has jurisdiction over this appeal
     based on the May 30, 2014 email from the CPAC HR Specialist informing him
     that he was not eligible for LEO special retirement coverage because of his break
     in service. IAF, Tab 11; see IAF, Tab 1 at 29-30.
¶6         Without holding the requested hearing, the administrative judge issued an
     initial decision dismissing the appeal for lack of jurisdiction. ID at 1, 3. The
     administrative judge found that nothing in the record constitutes a final decision
     by the agency concerning the appellant’s special retirement coverage, and that the
     Board therefore lacks jurisdiction over this appeal. ID at 3. The administrative
     judge stated that the dismissal of the appeal was without prejudice to refiling
     once the appellant receives a final agency decision on his request for LEO
     retirement coverage or, alternatively, if the agency refuses to issue such a
     decision. ID at 3 (citing Scott v. Department of the Treasury, 71 M.S.P.R. 42,
     46-47 (1996)).
¶7         The appellant has filed a petition for review. Petition for Review (PFR)
     File, Tab 1. The agency has filed a response in opposition to the petition for
     review. PFR File, Tab 3.

                                          ANALYSIS
¶8         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). As previously noted,
     5 C.F.R. § 842.807(b) affords the Board jurisdiction over “[t]he final decision of
     an agency head denying an individual [LEO special retirement] coverage while
     serving in an approved secondary position because of failure to meet the
     conditions in section 842.803(b) . . . .”
                                                                                            5

¶9          Based on our review of the record, we agree with the administrative judge
      that the record does not contain a final decision by the agency regarding the
      appellant’s request for LEO special retirement coverage. See ID at 2. Although
      the record includes emails from various agency employees informing the
      appellant that he is not eligible for LEO special retirement coverage, none of
      those emails can be properly characterized as a final decision so as to provide the
      Board with jurisdiction over this appeal pursuant to 5 C.F.R. § 842.807(b). See
      IAF, Tab 1 at 20-23, 29-30, 33-34.
¶10         On review, the appellant argues for the first time that the following
      statement in the agency’s August 14, 2014 response to his appeal constitutes a
      “final decision” so as to provide the Board with jurisdiction over this appeal:
      “The Agency’s interpretation that Appellant is not eligible for retirement on
      January 31, 2015[,] and further that he is not eligible for special retirement
      coverage is correct.” PFR File, Tab 1 at 3; see IAF, Tab 7 at 8.
¶11         We find the appellant’s argument unpersuasive. The appellant does not cite
      any authority, nor do we know of any, to support his apparent contention that
      arguments made by an agency representative in response to an appeal qualify as a
      final decision under 5 C.F.R. § 842.807(b). Therefore, this argument provides no
      basis for disturbing the administrative judge’s finding that the Board lacks
      jurisdiction over this appeal. 4
¶12         As noted above, rather than dismissing this appeal outright, the
      administrative judge dismissed the appeal without prejudice to refiling. ID at 3.
      An administrative judge has wide discretion to control the proceedings before him
      and the dismissal of an appeal without prejudice to refiling is a procedural option
      committed to his sound discretion. Argabright v. Department of Defense,
      113 M.S.P.R. 152, ¶ 6 (2010); Selig v. Department of the Army, 102 M.S.P.R.

      4
        We do not address the appellant’s remaining arguments on review, which pertain to
      the merits of his appeal and are immaterial to the dispositive jurisdictional issue. See
      PFR File, Tab 1 at 2-3, 4.
                                                                                        6

      189, ¶ 6 (2006). Nevertheless, an administrative judge must exercise his
      discretion in a manner consistent with Board policy, including the Board’s policy
      that cases be adjudicated expeditiously. See Schulte v. Department of the Air
      Force, 100 M.S.P.R. 141, ¶ 5 (2005).         The Board has held that when an
      administrative judge dismisses a case without prejudice, he must set a date certain
      for refiling, rather than leaving the refiling date open or ambiguous. Thomas v.
      Department of the Treasury, 115 M.S.P.R. 224, ¶ 6 (2010).
¶13        Here, the administrative judge did not set a date certain for refiling the
      appeal, opting instead to dismiss the appeal without prejudice to refiling once the
      appellant receives a final agency decision on his request for LEO special
      retirement coverage or if the agency refuses to issue such a decision. ID at 3.
      Accordingly, we affirm the initial decision as modified and dismiss the appeal
      without prejudice to refile by the appellant 90 days after the date of this
      Nonprecedential Final Order, or within 30 days of the date of the appellant’s
      receipt of a final agency decision regarding the appellant’s request for LEO
      special retirement coverage, whichever date occurs earlier.        See, e.g., Selig,
      102 M.S.P.R. 189, ¶ 8 (modifying the initial decision to allow the appellant to
      refile his appeal within 120 days of the date of the Opinion and Order or within
      30 days of the date of issuance of the final decisions regarding his application for
      benefits, whichever date occurs earlier). In the event that the agency has already
      issued a final decision and the appellant has received that decision, the appellant
      must refile his appeal within 30 days of the date of this Nonprecedential Final
      Order.

                      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:
                                                                                  7

                          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 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
                                                                           8

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.
