                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     CALVIN W. SCOTT,                                DOCKET NUMBER
                   Appellant,                        AT-0831-14-0015-I-1

                  v.

     OFFICE OF PERSONNEL                             DATE: August 29, 2014
       MANAGEMENT,
                   Agency.



                       THIS ORDER IS NONPRECEDENTIAL *

           Calvin W. Scott, Lithonia, Georgia, pro se.

           Christopher H. Ziebarth, Washington, D.C., for the agency.


                                           BEFORE

                              Susan Tsui Grundmann, Chairman
                              Anne M. Wagner, Vice Chairman
                                 Mark A. Robbins, Member


                                     REMAND ORDER

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


     *
        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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 Office of Personnel Management (OPM) for a decision
     concerning the appellant’s application for former spouse annuity benefits.

                                     BACKGROUND
¶2        The appellant alleged that OPM improperly denied him a former spouse
     annuity. Initial Appeal File (IAF), Tab 1 at 1-5. The appeal included evidence
     from the appellant’s divorce proceeding, unrelated prior workers’ compensation
     claim, and complaint to the Department of Justice (DOJ) regarding the retirement
     benefits and alleged wrongdoing by his former spouse and other parties but
     contained no application to OPM for former spouse annuity benefits. IAF, Tabs
     1, 10. However, the appellant submitted a copy of a letter sent to him by U.S.
     Representative Hank Johnson in July 2013, indicating that the Congressman had
     contacted OPM on behalf of the appellant. IAF, Tab 1 at 11. The letter indicated
     that the appellant was “not entitled to a portion of [his former spouse’s] annuity”
     without a court order and referred to an OPM report that was not submitted into
     the record. Id. The appellant also submitted into the record below a letter sent to
     him by the DOJ in October 2013, notifying him that they had referred his
     complaint to OPM for review and appropriate action. IAF, Tab 10 at 16.
¶3        OPM filed a request to dismiss the appeal, arguing that it had not issued a
     final (or any) decision in the matter and that the appellant had failed to provide
     evidence of a final decision. IAF, Tab 7 at 4. The agency argued that the issues
     addressed by the appellant appeared to be against the state court that entered his
     divorce decree and thus were “not matters under the authority of OPM.”          Id.
     Although the filing referenced an internal OPM docket number regarding the
     appellant’s case, the agency gave no indication that it had issued or intended to
     issue an initial or reconsideration decision to the appellant.          Id.    The
     administrative judge dismissed the appeal for lack of jurisdiction based on the
     parties’ written submissions, noting that the Board has jurisdiction to hear
     appeals in such matters only from a final or reconsideration decision issued by
                                                                                      3

     OPM. IAF, Tab 15, Initial Decision (ID). Specifically, the administrative judge
     concluded that the record reflected that OPM had not issued “any decision
     concerning the claims raised by the appellant,” and thus dismissed the appeal as
     OPM had not issued a final decision on the matter. ID at 3.

                     DISCUSSION OF ARGUMENTS ON REVIEW
¶4        Generally, the Board has jurisdiction over retirement issues only once they
     have been the subject of an OPM reconsideration decision.         Ott v. Office of
     Personnel Management, 120 M.S.P.R. 453, ¶ 4 (2013). However, when OPM
     fails to adjudicate all claims and dispositive issues before it, the Board has
     jurisdiction to consider the non-adjudicated claims and issues and may remand
     the case for OPM to complete a full review of the matter. Id.; see Byrum v. Office
     of Personnel Management, 618 F.3d 1323, 1332–33 (Fed. Cir. 2010).        Although
     the administrative judge correctly found that OPM had not issued a final decision
     on the appellant’s claims, we find cause to vacate the initial decision and remand
     the case to OPM for the following reasons.
¶5        As found by the administrative judge, the record indicates that OPM has not
     issued any decision regarding the appellant’s retirement claims raised in the
     present appeal. ID at 3. In his petition for review, the appellant alleges that the
     only response he received from OPM regarding his request for a former spouse
     annuity was the response to Representative Johnson, discussed above. Petition
     for Review (PFR) File, Tab 1 at 2. The appellant argues that he was submitting
     new evidence in the form of a letter granting his wife a “spousal exception,” but
     he failed to submit this evidence into the record or to develop his vague
     assertions that such letter would constitute a final determination by OPM. Id. at
     3. The agency has submitted no evidence or argument on review. The one-page
     agency response in the record below requesting dismissal indicated that the
     agency found that the appellant’s claims were not under the authority of OPM but
     provided no indication of whether the agency had informed the appellant of this
                                                                                      4

     determination. See IAF, Tab 7 at 4. The Board has recognized that, where OPM
     has failed to render a decision on a retirement application despite repeated
     requests from the appellant, dismissal of the appeal could effectively prevent an
     appellant from obtaining an adjudication of his claim. See Garcia v. Office of
     Personnel Management, 31 M.S.P.R. 160, 161 (1986).
¶6        The appellant has argued that OPM has ignored his repeated requests
     regarding his claims for former spouse annuity benefits, and the record indicates
     that DOJ referred his case to OPM and that the appellant’s congressman and U.S.
     Senator have attempted to intervene on his behalf.         See IAF, Tabs 1, 10.
     However, the record does not indicate whether OPM has issued or intends to issue
     any determination to the appellant regarding his claims, such that the appellant
     could then seek Board review of a final determination. As such, we find that
     OPM must issue a decision allowing the appellant to adjudicate his claim.

                                          ORDER
¶7        On remand, OPM shall issue an initial decision addressing the appellant’s
     claim for former spouse annuity benefits, and informing the appellant of his rights
     to seek reconsideration. OPM shall issue the initial decision within 90 calendar
     days from the date of this Remand Order and shall advise the appellant of his
     right to file an appeal with the Atlanta Regional Office if he disagrees with the
     final decision obtained through the reconsideration process. See Litzenberger v.
     Office of Personnel Management, 88 M.S.P.R. 419, 424 (2001).
¶8        We also ORDER OPM to tell the appellant promptly in writing when it
     believes it has fully carried out the Board’s Order and to describe the actions it
     took to carry out the Board’s Order. We ORDER the appellant to provide all
     necessary information OPM requests to help it carry out the Board’s Order.
     The appellant, if not notified, should ask OPM about its progress. See 5 C.F.R.
     § 1201.181(b).
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¶9        No later than 30 days after OPM tells the appellant it has fully carried out
     the Board’s Order, the appellant may file a petition for enforcement with the office
     that issued the initial decision on this appeal if the appellant believes that OPM
     did not fully carry out the Board’s Order. The petition should contain specific
     reasons why the appellant believes OPM has not fully carried out the Board’s
     Order, and should include the dates and results of any communications with OPM.
     See 5 C.F.R. § 1201.182(a).




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