                          UNITED STATES OF AMERICA
                       MERIT SYSTEMS PROTECTION BOARD


     MARTIN F. SALAZAR,                              DOCKET NUMBER
                   Appellant,                        AT-0842-14-0765-I-1

                  v.

     OFFICE OF PERSONNEL                             DATE: April 23, 2015
       MANAGEMENT,
                   Agency.



             THIS FINAL ORDER IS NO NPRECEDENTIAL *

           Martin F. Salazar, Grovetown, Georgia, pro se.

           Christopher H. Ziebarth, 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 retirement 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


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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     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        In early 2014, the appellant filed an application for a deferred retirement
     annuity. Initial Appeal File (IAF), Tab 6 at 4. On June 20, 2014, he filed a
     Board appeal in which he asserted that the Office of Personnel Management
     (OPM) had failed to act on his application. IAF, Tab 1. Because it appeared that
     OPM had not issued a final decision on the appellant’s retirement application, the
     administrative judge issued a show-cause order in which he informed the
     appellant that the Board may lack jurisdiction over his appeal and directed the
     appellant to file evidence and argument establishing the Board’s jurisdiction.
     IAF, Tab 7. After considering the parties’ submissions, the administrative judge
     dismissed the appeal for lack of jurisdiction on the basis that OPM had not issued
     a final decision. IAF, Tab 17, Initial Decision (ID). The appellant petitions for
     review. Petition for Review (PFR) File, Tabs 1-2.
¶3        If OPM has not issued a final decision on an appellant’s entitlement to a
     retirement benefit, the Board generally lacks jurisdiction over an appeal of that
     matter. See, e.g., Fletcher v. Office of Personnel Management, 118 M.S.P.R. 632,
     ¶ 5 (2012). However, the Board may take jurisdiction over a retirement appeal in
     the absence of a final decision if the appellant has made repeated requests for a
                                                                                       3

     final decision and the evidence indicates that OPM does not intend to issue a final
     decision. Id.
¶4        In response to the administrative judge’s acknowledgment order, OPM
     asserted that it was “unable to locate” a final decision in the appellant’s case.
     IAF, Tab 6 at 4.    OPM also explained that the appellant’s original retirement
     application was inadequate and that it would send him a detailed explanation of
     how he could perfect his application “[i]n the immediate future.” Id.
¶5        The appellant contends on review that this statement is inadequate to
     support a conclusion that OPM intends to issue a final decision. See PFR File,
     Tab 1 at 5, 8. However, the appellant has the burden of proving jurisdiction over
     his appeal. See, e.g., Reid v. Office of Personnel Management, 120 M.S.P.R. 83,
     ¶ 6 (2013). Therefore it is his burden to prove that OPM has either issued an
     appealable decision or that OPM does not intend to issue an appealable decision.
     OPM is not required to prove that it has issued an appealable decision or that it
     intends to issue an appealable decision.      Therefore, the administrative judge
     correctly found that the appellant failed to show that OPM has made either an
     actual or constructive decision on his retirement application. ID at 3-4. Thus, the
     administrative judge properly found that the Board lacks jurisdiction over this
     appeal.
¶6        The appellant contends on review that the administrative judge was biased
     against him, erred by failing to grant his motion to disqualify, and erred by not
     applying the substantial evidence burden of proof. PFR File, Tab 1 at 9-11. The
     bases for the appellant’s bias claim are that the administrative judge raised the
     issue of jurisdiction sua sponte, and the administrative judge contacted him ex
     parte to see if the appellant would withdraw the appeal until OPM issued an
     appealable decision. Id. at 9-10; see IAF, Tab 15 at 6-7. The issue of jurisdiction
     is always before the Board and may be raised at any time during a proceeding.
     Morgan v. Department of the Navy, 28 M.S.P.R. 477, 478 (1985). It is incumbent
     on the administrative judge to address jurisdiction sua sponte if there is reason to
                                                                                       4

     believe that jurisdiction might be an issue in the appeal.         See Stephen v.
     Department of the Air Force, 47 M.S.P.R. 672, 678 (1991). Therefore, it was
     entirely appropriate for the administrative judge to raise the issue of jurisdiction
     sua sponte. Moreover, the administrative judge did not engage in an improper ex
     parte communication when he contacted the appellant about a procedural matter,
     see 5 C.F.R. §§ 1201.101(a), 102, and OPM waived the prohibition against ex
     parte communications in any event, IAF, Tab 6 at 4. Further, the preponderant
     evidence standard applies in this case and the administrative judge was correct to
     employ it. 5 U.S.C. § 7701(c)(1)(B).
¶7        The remainder of the appellant’s petition for review argues extensively that
     the administrative judge erred by ruling against him on his various motions filed
     below. IAF, Tabs 4, 8, 10, 12, 14, Tab 15 at 7-10. We have considered the
     appellant’s arguments and find, based on our review of the record, that they are
     without merit. The administrative judge explained the basis for his denial of the
     appellant’s motions in some detail, see IAF, Tabs 7, 9, 11, 13; ID at 2-3 n.1, and
     the appellant has not shown that the administrative judge abused his discretion in
     any of these rulings.

                     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

          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
                                                                                  5

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 providin g 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.
