                               UNITED STATES OF AMERICA
                            MERIT SYSTEMS PROTECTION BOARD


     GERALD MITCHELL,                                DOCKET NUMBER
                  Appellant,                         AT-0841-14-0365-I-1

                     v.

     OFFICE OF PERSONNEL                             DATE: February 2, 2015
       MANAGEMENT,
                   Agency.



                          THIS ORDER IS NO NPRECEDENTIAL 1

           Gerald Mitchell, Memphis, Tennessee, pro se.

           Patrick Jennings, 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 discontinued service retirement (DSR) annuity appeal for lack of
     jurisdiction.        For the reasons discussed below, we GRANT the appellant’s


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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     petition for review and REMAND the case to the regional office for further
     adjudication in accordance with this Order.

                      DISCUSSION OF ARGUMENTS ON REVIEW
¶2         The appellant held a position with the U.S. Postal Service until he was
     removed for cause. Initial Appeal File (IAF), Tab 22 at 25-26. He applied for a
     DSR annuity and the Office of Personnel Management (OPM) issued an initial
     decision denying his application, IAF, Tab 26 at 6; he subsequently reapplied in
     January 2013. IAF, Tab 22 at 26-29. OPM denied the appellant’s application in a
     letter dated February 20, 2013. 2 Id. at 25. In Mitchell v. Office of Personnel
     Management, MSPB Docket No. AT-0841-13-0351-I-1, the Board dismissed the
     appellant’s petition for review of the initial decision that dismissed his DSR
     annuity appeal as withdrawn with prejudice to refiling. MSPB Docket No. AT-
     0841-13-0351-I-1, Final Order (0351 Final Order) at 3 (Sept. 23, 2013).               The
     Board noted that OPM indicated that it would treat the appellant’s appeal as a
     request for reconsideration and found that, subsequent to OPM issuing this
     decision, the appellant could file a new appeal. Id.
¶3         In September 2013, OPM approved the appellant’s separate application for
     a disability retirement annuity. 3 IAF, Tab 22 at 6-8. On January 16, 2014, the
     appellant filed the instant appeal alleging that OPM had repeatedly “failed and/or
     refused” to issue a reconsideration decision on his DSR annuity.             IAF, Tab 1
     at 3-4. The administrative judge issued an acknowledgment order to the parties,
     which advised the appellant of his burden of proof regarding jurisdiction. IAF,
     Tab 2 at 2. After the parties responded to the order, the administrative judge held


     2
       OPM’s letter did not indicate that it was an initial or reconsideration decision, and it
     did not provide the appellant with notice regarding a right to request reconsideration.
     See IAF, Tab 22 at 25.
     3
        The appellant also filed an appeal concerning his disability retirement annuity,
     Mitchell v. Office of Personnel Management, MSPB Docket No. AT-0831-14-0611-I-1,
     in which he has filed a petition for review. We will adjudicate that petition separately.
                                                                                             3

     a status conference, in which the appellant did not participate. 4 IAF, Tab 14,
     Tab 19 at 3, Tab 22 at 4-5, Tab 23. After the parties responded to the status
     conference summary, the administrative judge issued an order instructing the
     appellant to inform him if he wanted to continue pursuing a DSR annuity because
     OPM’s response indicated that the appellant’s monthly disability retirement
     annuity was greater than a possible DSR annuity. IAF, Tab 26 at 4, Tabs 27, 29,
     30-31, 33-34, 42. The appellant responded that he wanted to pursue the DSR
     annuity.   IAF, Tabs 32-34.        The administrative judge then issued an initial
     decision dismissing the appeal for lack of jurisdiction.          IAF, Tab 48, Initial
     Decision (ID) at 3.     The appellant has submitted a timely petition for review.
     Petition for Review (PFR) File, Tabs 1, 9. The agency responded to the petition
     for review, indicating that it issued a reconsideration decision on June 24, 2014.
     PFR File, Tab 16. 5
     The administrative judge correctly dismissed the appeal for lack of jurisdiction.
¶4         On petition for review, the appellant argues that OPM’s motion to dismiss
     in his previous appeal in MSPB Docket No. AT-0841-13-0351-I-1, and OPM’s
     response to the status conference summary in the instant appeal, show that OPM
     does not intend to issue a reconsideration decision and that OPM’s initial decision
     was its final decision. PFR File, Tab 1 at 3-4. The administrative judge found


     4
       The appellant stated below, in response to the summary of status conference, that,
     “[he] takes exception with the summary as to its inclusiveness but not lim ited thereof.”
     IAF, Tab 27 at 3. To the extent that he was arguing that the status conference was a
     prohibited ex parte communication, we find that he has shown no prejudice. See Reape
     v. Department of Health & Human Services, 41 M.S.P.R. 406, 409 (1989), aff’d,
     897 F.2d 538 (Fed. Cir. 1990) (Table); see also Karapinka v. Department of Energy,
     6 M.S.P.R. 124, 127 (1981) (the administrative judge’s procedural error is of no legal
     consequence unless it is shown that it has adversely affected a party’s substantive
     rights); 5 C.F.R. § 1201.101(a) (defining ex parte communications in Board
     proceedings).
     5
      On June 11, 2014, the appellant filed a motion to supplement the record. PFR File,
     Tab 14. In light of our disposition in this matter, we find that it is unnecessary to rule
     on the appellant’s motion.
                                                                                           4

     that the record did not support the conclusion that OPM did not intend to issue a
     reconsideration decision. ID at 3. Therefore, the Board lacked jurisdiction. 6 ID
     at 3. We agree.
¶5         In an application for retirement benefits, the Board generally has
     jurisdiction only when OPM has issued a reconsideration decision affecting an
     individual’s   retirement     rights.       Garnace     v.   Office    of    Personnel
     Management, 51 M.S.P.R. 375, 377 (1991). The Board, however, has recognized
     limited exceptions where OPM, in effect, has refused to issue a reconsideration
     decision, thus making its “initial” decision on the retirement application its
     “final” decision for purposes of a Board appeal. McNeese v. Office of Personnel
     Management, 61 M.S.P.R. 70, 74 (1994), aff’d, 40 F.3d 1250 (Fed. Cir. 1994)
     (Table). In a similar case, the Board declined to find such a refusal where OPM
     explained that its 16-month delay was due to a backlog, and that it intended to
     adjudicate the application. Id. at 73-74.
¶6         In the instant case, the administrative judge correctly found that the Board
     lacked jurisdiction below because OPM had not yet issued a reconsideration
     decision. ID at 3. Nor do we find, under the circumstances of this case, that
     OPM’s 16-month delay between the appellant’s filing his prior appeal in MSPB
     Docket No. AT-0841-13-0351-I-1 and OPM’s June 24, 2014 reconsideration
     decision amounted to a refusal to issue such a decision.                As mentioned
     previously, OPM’s February 20, 2013 letter did not provide the appellant with
     notice regarding his right to request reconsideration.          IAF, Tab 22 at 25.


     6
       The appellant raised discrim ination claims below and on review, including a claim
     under the Uniformed Services Employment and Reemployment Rights Act of 1994
     (codified at 38 U.S.C. §§ 4301-4333). IAF, Tab 34 at 3-4; PFR File Tab 8 at 3.
     However, the Board has found that, as a matter of law, the retirement statutes allow for
     no discretion on the part of OPM in determ ining an individual’s entitlement to an
     annuity and in following the annuity computation formulas enacted by Congress, and, in
     the absence of discretion, there can be no improper discrim ination. Jordan v. Office of
     Personnel Management, 108 M.S.P.R. 119, ¶ 9 (2008); Hundley v. Office of Personnel
     Management, 83 M.S.P.R. 632, ¶ 9 (1999).
                                                                                     5

     However, the Board noted in the appellant’s previous appeal that OPM admitted
     that this omission was an error and that it intended to issue a reconsideration
     decision because it considered the Board appeal to be a request for
     reconsideration. 0351 Final Order at 2. In the instant case, OPM noted below
     that the appellant had overlapping retirement applications and appeals that
     involved multiple offices, and thus OPM was not able to issue a reconsideration
     decision as yet but would issue a decision subsequent to dismissal of this appeal.
     See IAF, Tab 22 at 4-5.
     The appellant’s allegations that the administrative judge erred by not affording
     him a hearing and not permitting him to engage in discovery are without merit.
¶7         The appellant argues on review that he was denied his right to a hearing.
     See PFR File, Tab 1 at 4. There is no statutory requirement that the Board hold a
     hearing on the threshold issue of jurisdiction.      Manning v. Merit Systems
     Protection Board, 742 F.2d 1424, 1427 (Fed. Cir. 1984). An appellant is entitled
     to a hearing in a retirement appeal where the Board has jurisdiction.         See
     McDowell v. Office of Personnel Management, 66 M.S.P.R. 511, 513 (1995)
     (because the Board has jurisdiction over appeals of OPM reconsideration
     decisions, the appellant was entitled to a hearing); see also Crowder v. Office of
     Personnel Management, 21 M.S.P.R. 293, 295 (1984) (an appellant is entitled to a
     hearing on the merits of OPM’s reconsideration denial of his disability annuity
     application).   An administrative judge should also hold a hearing when the
     appellant’s allegations raise nonfrivolous issues of fact relating to jurisdiction
     which cannot be resolved merely on submissions of documentary evidence.
     Manning, 742 F.2d at 1428. In the instant case, because the parties’ submissions
     were sufficient to determine that the Board lacked jurisdiction, the appellant was
     not entitled to a hearing.
¶8         On petition for review, the appellant argues that he was denied discovery.
     PFR File, Tab 1 at 4. However, a party does not need the Board’s approval to
     engage in discovery, and the Board generally becomes involved in discovery
                                                                                             6

      matters only if a party files a motion to compel. See King v. Department of the
      Navy, 98 M.S.P.R. 547, ¶ 10 (2005), aff’d, 167 F. App’x 191 (Fed. Cir. 2006); see
      also 5 C.F.R. § 1201.73. The appellant does not assert that he filed a motion to
      compel discovery below.        Although the appellant filed a motion to initiate
      discovery, the administrative judge had already permitted discovery in the
      acknowledgment order.       IAF, Tab 2 at 3-4, Tab 37.       Thus, his claim that the
      administrative judge erred in this regard is wholly without merit.                   See
      King, 98 M.S.P.R. 547, ¶ 10.          Further, in light of our finding that the
      administrative judge properly dismissed the appeal for lack of jurisdiction, we
      find that any failure to rule on the appellant’s numerous motions was harmless.
      See Karapinka, 6 M.S.P.R. at 127.
      New and material evidence reveals that the Board has jurisdiction over this
      appeal.
¶9          OPM has submitted new and material evidence on review showing that it
      issued a reconsideration decision dated June 24, 2014. PFR File, Tab 16 at 5-6.
      The reconsideration decision affirmed OPM’s initial decision denying a DSR
      annuity. Id. Therefore, we find that the Board now has jurisdiction to consider
      the DSR appeal. See Garnace, 51 M.S.P.R. at 377.
¶10         Accordingly, we REMAND the appeal to the regional office for further
      adjudication. 7 See Daniel v. Office of Personnel Management, 112 M.S.P.R. 699,
      ¶ 5 (2010) (finding that, because OPM had issued a reconsideration decision
      subsequent to the Board’s initial decision, the Board had jurisdiction on review,

      7
        On petition for review, the appellant stated that, “his election will be to stay under
      disability retirement.” PFR File, Tab 21 at 3. His election could be interpreted as a
      withdrawal of this appeal. However, the relinquishment of one’s right to appeal to the
      Board must be by clear, unequivocal and decisive action. Etheridge v. Department of
      Veterans Affairs, 67 M.S.P.R. 53, 56 (1995). The appellant’s election does not indicate
      an unequivocal withdrawal because he does not state that he wants to withdraw his DSR
      appeal, and he indicates that OPM vio lated his rights and that due to OPM’s reprisal he
      should be awarded damages. PFR File, Tab 21 at 3; cf. Tozier v. Department of the
      Interior, 41 M.S.P.R. 167, 169 (1989) (the appellant’s letter to the administrative judge
      plainly and unequivocally stated that he wished to withdraw h is appeal).
                                                                                       7

      and thus remand was necessary). The administrative judge shall afford the parties
      an opportunity to submit evidence and argument concerning the appellant’s
      eligibility for a DSR annuity and issue an initial decision on the merits of the
      appeal.
¶11        The appellant requests on review that the Board consolidate this appeal with
      two of his other appeals: Mitchell v. Office of Personnel Management, MSPB
      Docket No. AT-0831-14-0611-I-1, and Mitchell v. United States Postal Service,
      MSPB Docket No. DA-3443-14-0350-I-1.          See PFR File, Tab 8 at 3.     In his
      appeal in MSPB Docket No. AT-0831-14-0611-I-1, the appellant is appealing the
      processing of his disability retirement application. MSPB Docket No. DA-0831-
      14-0611-I-1, Initial Appeal File, Tab 1. In his appeal in MSPB Docket No. DA-
      3443-14-0350-I-1, he is challenging the alleged failure of the U.S. Postal Service
      to provide insurance. MSPB Docket No. DA-3443-14-0350-I-1, Initial Appeal
      File, Tab 1. Both appeals are pending before the Board on petition for review.
¶12        Joinder of two or more appeals filed by the same appellant may be
      appropriate when joinder would expedite processing of the appeals and when
      joinder would not adversely affect the interests of the parties.      Boechler v.
      Department of the Interior, 109 M.S.P.R. 542, ¶ 14 (2008), aff’d, 328 F. App’x
      660 (Fed. Cir. 2009); 5 C.F.R. § 1201.36(a)(2), (b). In the instant case, joining
      this appeal with the appeal in MSPB Docket No. DA-0831-14-0611-I-1 would not
      expedite processing of the appeals because we are disposing of that appeal
      without remand, as noted in our separate Order in that case. Further, joining this
      appeal with the appeal in MSPB Docket No. DA-3443-14-0350-I-1 would not be
      appropriate because there is no evidence that the U.S. Postal Service ever
      requested to intervene in this proceeding.    Cf. Holser v. Office of Personnel
      Management, 72 M.S.P.R. 247, 250-251 (1996) (finding no error by the
      administrative judge in not combining a disability retirement claim with an
      involuntary resignation claim because disposition of one did not affect the other).
      Therefore, we DENY the appellant’s motion for joinder.
                                                                         8

                                    ORDER
     For the reasons discussed above, we 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.
