                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     JOSEPH SAMUEL GENUALDI,                         DOCKET NUMBER
                  Appellant,                         AT-0831-14-0878-I-1

                  v.

     OFFICE OF PERSONNEL                             DATE: February 4, 2015
       MANAGEMENT,
                   Agency.



                       THIS ORDER IS NO NPRECEDENTIAL *

           Joseph Samuel Genualdi, Huntsville, Alabama, pro se.

           Roxann Johnson, 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 of the recomputation of his Civil Service Retirement System
     (CSRS) annuity for lack of Board 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        A nonprecedential order is one that the Board has determined does not add
     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 Parties may cite nonprecedential orders,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

     REMAND the appeal to the regional office for further adjudication in accordance
     with this Order.
¶2        The appellant filed this appeal to contest a July 29, 2014 final decision
     issued by the Office of Personnel Management (OPM). See Initial Appeal File
     (IAF), Tab 1 at 15-16. OPM recomputed his monthly annuity to eliminate credit
     for his post-1956 military service after he failed to make a deposit for that
     service. Id. at 15. The appellant acknowledged that he did not make the deposit.
     He did not dispute that recomputation of his annuity was appropriate; instead, he
     contested the amount by which the annuity had been reduced. See id. at 6-7.
¶3        In a letter to the Board dated August 27, 2014, OPM rescinded its July 29,
     2014 final decision. IAF, Tab 4 at 4. The letter also stated that OPM would
     allow the appellant to make a deposit for his post-1956 military service, after
     which his monthly annuity payment would be readjusted. Id. Citing Rorick v.
     Office   of   Personnel   Management,    109   M.S.P.R.   597,    ¶6    (2008),   the
     administrative judge dismissed the appeal as moot “because OPM has indicated
     that it will grant the appellant the sole relief he would have been able to obtain
     from the Board if his appeal had been adjudicated in his favor (an opportunity to
     make a late deposit for his periods of military service).”       IAF, Tab 5, Initial
     Decision (ID) at 2 (footnote omitted).
¶4        On review, the appellant argues that the administrative judge misconstrued
     the issue he raised in the appeal: that the recomputation resulted in a 20 percent
     decrease in his monthly annuity payment. Petition for Review (PFR) File, Tab 1
     at 2. He explains that he had asked for reconsideration of the amount of the
     annuity payment he receives, and he did not contest whether OPM should have
     recomputed his annuity. Id. He further explains that he is financially unable to
     make a deposit and he simply wants the Board to reconsider the amount by which
     his annuity was reduced. Id. at 4.
¶5        The Board may adjudicate an appeal contesting any administrative action or
     order affecting the rights or interests of an individual under the CSRS; however,
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     the Board does not acquire jurisdiction until OPM has issued a final decision.
     Baniaga v. Office of Personnel Management, 86 M.S.P.R. 207, ¶ 5 (2000);
     see 5 U.S.C. § 8347(b), (d)(1); see also 5 C.F.R. §§ 831.109, .110.       If OPM
     completely rescinds a final or reconsideration decision, the Board generally does
     not retain jurisdiction over the appeal in which that decision is at issue, and the
     appeal must be dismissed. See Baniaga, 86 M.S.P.R. 207, ¶ 5.            The Board
     recognizes an exception to this general rule when OPM’s failure to render a
     decision effectively prevents an appellant from obtaining adjudication of the
     matter    he    has    appealed.        Settlers   v.    Office    of    Personnel
     Management, 108 M.S.P.R. 105, ¶ 9 (2008).
¶6        Here, the exception applies. OPM’s rescission letter did not truly render the
     appeal moot because it did not address the appellant’s issue on appeal: whether
     the recomputation resulted in an excessive decrease in his monthly annuity
     payment. See IAF, Tab 1 at 6-7. The administrative judge acknowledged that the
     appeal presented that question, but stated that the appellant’s intention in filing
     the appeal seemed “unclear” and suggested that he had not raised the question
     with OPM. See ID at 3 n.2. The administrative judge advised the appellant to
     notify OPM if he intended to contest the calculation of his annuity and to allow
     OPM to issue another decision. Id.
¶7        The record below does not include the appellant’s initial correspondence
     with OPM. His appeal form unequivocally stated that his concern was not with
     the fact of recomputation but with the amount by which his monthly annuity
     payment had been reduced. See IAF, Tab 1 at 6-7. On review, however, the
     appellant submitted a copy of his initial correspondence with OPM. His letter
     states that he was challenging the amount of the reduction and that he would be
     unable to deposit funds to cover his post-1956 military service. PFR File, Tab 1,
     Subtab C. OPM’s rescission letter did not address this second issue. See IAF,
     Tab 1 at 15-16. The administrative judge thus erred in dismissing his appeal as
     moot. Accordingly, we thus consider OPM’s August 27, 2014 rescission letter to
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be the agency’s “implicit negative reconsideration decision.” See Morin v. Office
of Personnel Management, 107 M.S.P.R. 534, 537-38 (2007) (because OPM’s
rescission letter was silent about the appellant’s issue on reconsideration, it was
an “implicit negative reconsideration decision”), aff’d, 287 F. App’x 864 (Fed.
Cir. 2008). We remand the appeal to the regional office for further development
of the record as needed and a decision on the merits regarding the accuracy of
OPM’s recomputation of the appellant’s monthly annuity payment.

                                     ORDER
     For the reasons discussed above, we VACATE the initial decision
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.
