                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     CLIFFORD S. NASDAHL,                            DOCKET NUMBER
                   Appellant,                        AT-0831-16-0337-I-1

                  v.

     OFFICE OF PERSONNEL                             DATE: October19, 2016
       MANAGEMENT,
                   Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Clifford S. Nasdahl, Memphis, Tennessee, 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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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. 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, 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 to clarify the grounds for dismissal, we AFFIRM the initial
     decision.

                     DISCUSSION OF ARGUMENTS ON REVIEW
¶2        In this appeal, the appellant contended that the Office of Personnel
     Management (OPM) had denied him a waiver of interest he claims that he accrued
     as a result of being placed in the wrong retirement system. Initial Appeal File
     (IAF), Tab 1.   He requested a hearing. Id. His submission did not include any
     documentation from OPM regarding his appeal. In its response, OPM noted that
     its file on the matter did not contain a final decision regarding the issue the
     appellant had raised in his Board appeal. IAF, Tab 6 at 4. Instead, OPM asserted
     that its file included a decision issued under the authority of the Federal
     Erroneous Retirement Coverage Corrections Act (FERCCA) and that the decision
     was not appealable to the Board. Id. at 4-6; 5 C.F.R. § 839.1303 (OPM decisions
     under 5 C.F.R. part 839, subpart L, Discretionary Actions by OPM, may not be
     appealed).   OPM further asserted that it “must review the appellant’s file to
     determine the course of action on his request for waiver of interest on a service
     credit payment in accordance with the appropriate statute and regulations, while
                                                                                                3

     also preserving his due process rights.” IAF, Tab 6 at 4. The appellant made no
     further submissions below save for registration as an e-filer. IAF, Tab 4.
¶3         The administrative judge dismissed the appeal for lack of jurisdiction on the
     written record without holding a hearing because the record showed that OPM
     had yet to issue a final decision in this matter. IAF, Tab 7, Initial Decision (ID)
     at 2 (citing Autrey v. Office of Personnel Management, 27 M.S.P.R. 130 (1985)
     (finding that the Board lacks jurisdiction over retirement matters in the absence of
     a final decision from OPM)). He explained his understanding that OPM would
     issue a final decision in this matter and that once it does so, that decision would
     be appealable to the Board. ID at 2.
¶4         In his petition for review, the appellant claims that he has been unable to
     contact the OPM representative responsible for his claim and that he has not
     received anything further from OPM. Petition for Review (PFR) File, Tab 1 at 1.
     With his petition for review, he includes a copy of OPM’s response to the
     administrative judge’s acknowledgment order and a copy of the initial decision. 2
     Id. at 5-14. OPM responds in opposition to the appellant’s petition for review.
     PFR File, Tab 4.
¶5         The appellant bears the burden of proof on retirement matters and must
     show by preponderant evidence that he is entitled to receive the benefits he seeks.
     Cheeseman v. Office of Personnel Management, 791 F.2d 138, 140-41 (Fed. Cir.
     1986); 5 C.F.R. § 1201.56(b)(2)(i)(A). When there is a pure question of law, the
     appeal may be decided without a hearing.                Carew v. Office of Personnel
     Management, 878 F.2d 366, 367-68 (Fed. Cir. 1989); Jezouit v. Office of
     Personnel Management, 97 M.S.P.R. 48, ¶ 12-13 (2004), aff’d, 121 F. App’x 865

     2
       The appellant filed an additional pleading on August 30, 2016. The Board’s regulations
     do not provide for pleadings other than a petition for review, a cross petition for review, a
     response to the petition for review or cross petition for review, and a reply to a response.
     PFR File, Tab 5; see 5 C.F.R. § 1201.114(a)(5). Because the appellant failed to file a
     motion with and obtain leave from the Clerk of the Board prior to filing his additional
     pleading, the pleading was rejected and returned to the appellant without consideration.
     PFR File, Tab 5.
                                                                                       4

     (Fed. Cir. 2005).    As set forth below, the Board lacks jurisdiction over the
     appellant’s appeal, regardless of whether OPM has issued a final decision.
¶6         Here, the appellant requested an interest waiver, IAF, Tab 1, but OPM has a
     statutory obligation to charge interest for service credit deposits.    Pursuant to
     5 U.S.C. § 8334(e), interest accrues annually and is compounded annually, until
     the appellant makes the deposit. Pursuant to 5 U.S.C. § 8411(f), an employee
     may not be allowed credit for prior service unless the employee makes the
     appropriate deposit with interest.   Moreover, based on those statutes, as OPM
     explained, IAF, Tab 6 at 5, there is no authority for the agency to waive interest.
     To rectify a FERCCA error, OPM also has discretionary authority to reimburse
     certain out-of-pocket expenses, but there is no provision for an interest waiver.
     5 C.F.R. §§ 839.1201-.1204. But, even assuming the agency had discretionary
     authority to provide the appellant with some form of relief, there would be no
     Board jurisdiction over its decision. On the contrary, OPM makes those decisions
     in its sole discretion. 5 C.F.R. §§ 839.1201(a), 839.1202(a), 839.1203(a). Such
     decisions are final and conclusive and are not subject to administrative or judicial
     review.   5 C.F.R. §§ 839.1302-.1303 (claimants may appeal OPM FERCCA
     decisions except an OPM decision under subpart L).
¶7         Accordingly, for the reasons set forth above, we find that the Board lacks
     jurisdiction over the appellant’s appeal.

                     NOTICE TO THE APPELLANT REGARDING
                        YOUR FURTHER REVIEW RIGHTS
           The initial decision, as supplemented by this Final Order, constitutes the
     Board’s final decision in this matter. 5 C.F.R. § 1201.113. You have the right to
     request review of this final decision by the U.S. Court of Appeals for the Federal
                                                                                  5

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 U.S. 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 U.S. 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
                                                                                6

Circuit.   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:                           ______________________________
                                         Jennifer Everling
                                         Acting Clerk of the Board
Washington, D.C.
