                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     BILLY G. GARNER,                                DOCKET NUMBER
                   Appellant,                        DA-0845-15-0203-I-1

                  v.

     OFFICE OF PERSONNEL                             DATE: September 18, 2015
       MANAGEMENT,
                   Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Billy G. Garner, Cade, Louisiana, pro se.

           Karla W. Yeakle, 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 Federal Employees’          Retirement System       (FERS) disability
     retirement benefits appeal for lack of jurisdiction. Generally, we grant petitions
     such as this one only when: the initial decision contains erroneous findings of


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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     material fact; the initial decision is based on an erroneous interpretation of statute
     or 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, 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         The appellant entered into disability retirement under FERS effective
     December 20, 2005, and began receiving annuity payments the following year.
     Initial Appeal File (IAF), Tab 6 at 25, 36, 42, 57-58. In May 2014, the Office of
     Personnel Management (OPM) notified the appellant that it had been overpaying
     him for the past 8 years because it had neglected to figure his Social Security
     benefits into the annuity calculation. Id. at 18-19, 24. It reduced his monthly
     annuity from $1,498.00 to $843.00, and informed him that it also intended to
     collect $59,995.14 in overpayment. Id. at 18, 24. OPM notified the appellant of
     his right to request reconsideration within 30 days. Id. On June 9, 2014, the
     appellant timely requested reconsideration of the decision and waiver of any
     overpayment. Id. at 9-13.
¶3         Having heard nothing from OPM for 7 months, the appellant filed the
     instant Board appeal on January 14, 2015, requesting that the Board reverse
     OPM’s decision. IAF, Tab 1 at 1-4. The appellant did not request a hearing. Id.
     at 1. OPM responded, moving to dismiss the appeal on the basis that it had not
     yet rendered a final decision but still intended to do so. IAF, Tab 7 at 4. The
                                                                                         3

     appellant did not respond to OPM’s motion, and the administrative judge
     dismissed the appeal for lack of jurisdiction. IAF, Tab 9, Initial Decision (ID) at
     2, 4. The appellant has filed a petition for review, Petition for Review (PFR)
     File, Tab 1, OPM has filed a response, PFR File, Tab 4, and the appellant has
     filed a reply, PFR File, Tab 5.
¶4         The Board’s jurisdiction to adjudicate FERS appeals derives from statute:
           [A]n administrative action or order affecting the rights or interests of
           an individual or the United States under [FERS] administered by
           [OPM] may be appealed to the Merit Systems Protection Board under
           procedures prescribed by the Board.
     5 U.S.C. § 8461(e)(1).
¶5         For purposes of OPM decisions under FERS, the Board has recognized three
     situations in which OPM is deemed to have issued an appealable action or order.
     Okello v. Office of Personnel Management, 120 M.S.P.R. 498, ¶ 14 (2014). Two
     of those situations are prescribed by OPM’s regulations: OPM may either (1)
     issue a reconsideration decision under 5 C.F.R. § 841.306 or (2) issue an initial
     decision without reconsideration rights under 5 C.F.R. § 841.307. Either type of
     decision is final and appealable to the Board under 5 C.F.R. § 831.308.           See
     5 C.F.R. §§ 831.306(e), .307. The third situation derives from Board case law.
     Specifically, the Board will take jurisdiction over an appeal concerning a
     retirement matter in which OPM has refused or improperly failed to issue a final
     decision. E.g., McNeese v. Office of Personnel Management, 61 M.S.P.R. 70, 74,
     aff'd sub nom. McNeese v. Merit Systems Protection Board, 40 F.3d 1250 (Fed.
     Cir. 1994) (Table).      In other words, even an initial decision subject to
     reconsideration or the absence of any decision at all may, under appropriate
     circumstances,   constitute   a   final   administrative   action   under   5   U.S.C.
     § 8461(e)(1).
¶6         In this case, it is undisputed that OPM has not issued a final decision under
     5 C.F.R. § 841.308. The appellant, however, argues that OPM’s failure to do so
     constitutes a final, appealable administrative action under the Board’s case law.
                                                                                              4

     Specifically, he argues that, contrary to the administrative judge’s finding below,
     he did contact OPM multiple times prior to filing his Board appeal. PFR File,
     Tab 1 at 5; ID at 3. He has attached copies of letters to OPM dated September 30,
     2014, and October 5, 2014, asking for a decision on his reconsideration request. 2
     PFR File, Tab 1 at 9-10.        The appellant argues that this case is like Okello,
     120 M.S.P.R. 498, in which the Board found that OPM’s lengthy delay and
     repeated administrative missteps in issuing a final, appealable decision
     constituted a sufficient basis for the Board to take jurisdiction over the appeal.
     PFR File, Tab 1 at 3-5, Tab 5 at 2.
¶7         We disagree.      OPM is the agency with primary statutory authority to
     adjudicate FERS annuity cases and to issue related regulations.               Only under
     extraordinary circumstances will the Board assume jurisdiction outside the plain
     language of those regulations.         See Okello, 120 M.S.P.R. 498, ¶ 15.             We
     acknowledge that the appellant waited a significant amount of time for OPM’s
     reconsideration decision before filing his Board appeal. 3 We also acknowledge
     that the appellant twice contacted OPM to inquire about the status of his
     reconsideration request and that OPM failed to respond to the appellant’s
     inquiries. IAF, Tab 1 at 1; PFR File, Tab 1 at 5, 9-10. However, the facts of this
     case do not approach the grievous circumstances present in Okello, which


     2
       The Board will not normally consider evidence submitted for the first time with the
     petition for review absent a showing that it was unavailable before the record was
     closed despite the party’s due diligence. Avansino v. U.S. Postal Service, 3 M.S.P.R.
     211, 214 (1980). However, in light of the appellant’s pro se status and the lack of
     timely notice below that this information would be relevant to the jurisdictional issue,
     we have considered the letters that the appellant filed for the first time on review.
     PFR File, Tab 1 at 9-10; see McCray v. Department of the Navy, 80 M.S.P.R. 154, ¶ 7
     (1998) (the Board will consider evidence filed for the first time on review when the
     appellant was not notified of what is required to establish jurisdiction until the issuance
     of the initial decision).
     3
      OPM’s continued delay in issuing a reconsideration decision may be attributable to the
     ongoing litigation in this case. See Okello, 120 M.S.P.R. 498, ¶ 16 n.4; McNeese,
     61 M.S.P.R. at 74.
                                                                                      5

     included a 6-year delay plus numerous abortive decisions and administrative
     errors, such that the Board could find that OPM had effectively abdicated its role
     of adjudicating the appellant’s reconsideration request. 120 M.S.P.R. 498,
     ¶¶ 3-11. Nor do the facts of this case indicate that OPM intends not to issue any
     further decision in this matter.      Cf., e.g., Luna v. Office of Personnel
     Management, 89 M.S.P.R. 465, ¶ 9 (2001); DoPadre v. Office of Personnel
     Management, 69 M.S.P.R. 346, 351 (1996); Richards v. Office of Personnel
     Management, 29 M.S.P.R. 310, 312 (1985). To the contrary, OPM stated plainly
     below, and on review, that it will issue a final decision with notice of Board
     appeal rights once the instant appeal is dismissed. IAF, Tab 7 at 4; PFR File, Tab
     4 at 4. At this stage of the proceedings, we must accept OPM’s assertions at face
     value.   See Fagone v. Office of Personnel Management, 85 M.S.P.R. 49, ¶ 11
     (2000) (the Board accepted OPM’s assertion that it was willing to issue a final
     decision upon the conclusion of the Board appeal).
¶8        The appellant also argues that the administrative judge treated OPM more
     favorably by excusing the untimeliness of its response to the acknowledgment
     order. PFR File, Tab 1 at 6. We agree with the appellant that OPM’s response to
     the acknowledgment order was significantly untimely. IAF, Tab 2 at 1, 6, Tab 7.
     However, an administrative judge has broad discretion to govern the proceedings
     before him, including the authority to receive relevant evidence.         5 C.F.R.
     § 1201.41(b)(3).   We find that the administrative judge did not abuse his
     discretion in accepting OPM’s untimely response to the acknowledgment order,
     especially considering that OPM’s response implicated the Board’s jurisdiction.
     See Pennington v. Department of Veterans Affairs, 57 M.S.P.R. 8, 9 (1993)
     (jurisdiction cannot be conferred by any action or inaction of the parties, and the
     issue of jurisdiction may be raised at any time in the course of a Board appeal).
     Moreover, the appellant did not object to OPM’s untimely filing below, and it is
     too late for him to do so on review.         See White v. U.S. Postal Service,
     64 M.S.P.R. 261, 267 (1994). To the extent that the appellant is arguing that the
                                                                                        6

      motion to dismiss that accompanied the agency’s response was untimely, we
      disagree. The acknowledgment order required only that a narrative response and
      copies of all relevant documents be filed within 20 days. IAF, Tab 1 at 6, 13. It
      did not set a deadline for filing motions.
¶9          The appellant also argues that he missed the telephonic status conference
      below because he did not receive notice of its scheduling until after it had already
      passed.   PFR File, Tab 1 at 7; IAF, Tabs 5, 8.       The appellant informed the
      administrative judge of this fact and expressed his desire to reschedule the
      conference so that the parties could discuss settlement options. PFR File, Tab 1
      at 7; IAF, Tab 8 at 1. The administrative judge, however, did not do so. PFR
      File, Tab 1 at 7.     We find that the appellant has not established that his
      substantive rights were prejudiced by the administrative judge’s failure to
      reschedule the status conference.     See Shafer v. Department of the Air Force,
      46 M.S.P.R. 164, 171-72 (1990), aff’d, 935 F.2d 280 (Fed. Cir. 1991); Karapinka
      v. Department of Energy, 6 M.S.P.R. 124, 127 (1981) (holding that an
      administrative judge’s procedural error is of no legal consequence unless it is
      shown to have adversely affected a party’s substantive rights). The appellant has
      not shown that the result of the appeal would have been different had the status
      conference taken place, and, even if the status conference might have helped to
      facilitate a settlement, we find that the appellant did not have a substantive right
      to a settlement.
¶10         To the extent that the appellant is arguing that the administrative judge was
      biased against him, he must overcome the presumption of honesty and integrity
      which accompanies administrative adjudicators. PFR File, Tab 1 at 6-7; Oliver v.
      Department of Transportation, 1 M.S.P.R. 382 (1980). An administrative judge’s
      conduct during the course of a Board proceeding warrants a new adjudication
      only if the administrative judge’s comments or actions evidence “a deep-seated
      favoritism or antagonism that would make fair judgment impossible.” Bieber v.
      Department of the Army, 287 F.3d 1358, 1362-63 (Fed. Cir. 2002). We find that
                                                                                        7

      the administrative judge’s conduct of the proceedings below does not satisfy this
      standard.
¶11         Accordingly, we affirm the initial decision’s finding that the Board lacks
      jurisdiction over this appeal.

                           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
      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.
                                                                                  8

     If you are interested in securing pro bono representation for your appeal to
the 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 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:                            ______________________________
                                          William D. Spencer
                                          Clerk of the Board
Washington, D.C.
