                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     KENNETH M. LEE,                                 DOCKET NUMBER
                  Appellant,                         AT-0831-16-0252-I-1

                  v.

     OFFICE OF PERSONNEL                             DATE: September 23, 2016
       MANAGEMENT,
                   Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Kenneth M. Lee, Loris, South Carolina, pro se.

           Sarah Murray, 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 for lack of jurisdiction his appeal from the denial of credit for a portion
     of his Federal and military service in the calculation of his retirement annuity
     under the Civil Service Retirement System (CSRS) by the Office of Personnel


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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     Management (OPM). 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 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. 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 and AFFIRM the initial decision, which is now the Board’s final
     decision. 5 C.F.R. § 1201.113(b).

                                      BACKGROUND
¶2        On May 5, 2015, the appellant applied for deferred retirement under CSRS.
     Initial Appeal File (IAF), Tab 9 at 6-8. In a letter dated October 5, 2015, OPM
     notified the appellant that he could make a deposit to obtain credit for part of his
     Federal service during which no retirement deductions were withheld from his
     salary. IAF, Tab 1 at 13. 2 OPM further advised him that his election to make or
     not make a deposit was “irrevocable” and could not “be changed after final
     adjudication of [his] claim,” and that he had to reply within 30 days of the date of
     the letter. Id. at 14. In a letter dated November 23, 2015, OPM again notified the
     appellant that he could make a deposit to obtain service credit, but altered the
     current monthly annuity amount on the election form. Id. at 15-16. In an undated
     form RI 20-49, OPM informed the appellant that he had not received credit for his

     2
       The administrative judge made a typographical error in stating that the letter was
     dated “October 4, 2015.” IAF, Tab 15, Initial Decision at 1.
                                                                                           3

     military service in the calculation of his retirement annuity because he did not
     make a deposit before he retired. Id. at 17-19.
¶3          The appellant filed this appeal to the Board disputing OPM’s claim that he
     had not made retirement contributions to receive credit for part of his Federal and
     military service in the calculation of his retirement annuity. Id. at 2-12. OPM
     filed a motion to dismiss the appeal for lack of jurisdiction because it had not
     issued a final or initial decision in the matter. IAF, Tab 9 at 4. OPM claimed
     that   it   had   finalized    the   appellant’s   retirement   annuity   benefits   on
     November 11, 2015, but that further review of the computation of his annuity was
     needed based on his submissions in this appeal. Id. OPM further stated that,
     once this appeal was dismissed, it intended to remand his file to OPM’s
     adjudication branch for review and issue an initial decision with reconsideration
     rights. Id.
¶4          In a show cause order, the administrative judge advised the appellant that
     the Board generally lacks jurisdiction over a retirement matter when OPM has not
     issued a reconsideration decision. IAF, Tab 10 at 1. She advised him of his
     burden of proving jurisdiction over the appeal and ordered him to file evidence
     and argument on the jurisdictional issue. Id. at 2. The appellant responded to the
     show cause order. IAF, Tabs 13-14. He argued that the Board had jurisdiction
     over the appeal because OPM had finalized his retirement annuity benefits. IAF,
     Tab 13 at 2-3.       He further alleged that OPM had no intention to issue a
     reconsideration decision because it had been unresponsive for 8 months since he
     applied for retirement. Id. at 3.
¶5          The administrative judge issued an initial decision granting the agency’s
     motion and dismissing the appeal for lack of jurisdiction. IAF, Tab 15, Initial
     Decision (ID) at 1, 4.        She found that the Board lacked jurisdiction over the
     appeal because OPM had not issued a final decision on the appellant’s claim and
     stated that it intended to issue one. ID at 4. She further found that OPM had
     been actively processing his application since he applied for retirement and the
                                                                                           4

     totality of the circumstances did not support taking jurisdiction over the appeal.
     Id.
¶6         The appellant has filed a petition for review. Petition for Review (PFR)
     File, Tab 1. OPM has filed a response. PFR File, Tab 4. The appellant has filed
     a reply to OPM’s response. PFR File, Tab 5.

                      DISCUSSION OF ARGUMENTS ON REVIEW
     The Board lacks jurisdiction over the appeal.
¶7         The Board’s jurisdiction is limited to those matters over which it has been
     given jurisdiction by law, rule, or regulation.          Maddox v. Merit Systems
     Protection Board, 759 F.2d 9, 10 (Fed. Cir. 1985). The appellant has the burden
     of proving the Board’s jurisdiction by a preponderance of the evidence. 3 5 C.F.R.
     § 1201.56(b)(2)(i)(A).    The Board has jurisdiction over OPM determinations
     affecting an appellant’s rights or interests under CSRS only after OPM has issued
     a final decision. Morin v. Office of Personnel Management, 107 M.S.P.R. 534,
     ¶ 8 (2007), aff’d per curiam, 287 F. App’x 864 (Fed. Cir. 2008); see 5 U.S.C.
     § 8347(d); 5 C.F.R. § 831.110. 4 However, 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.         Okello v. Office of Personnel
     Management, 120 M.S.P.R. 498, ¶ 14 (2014).           In such a case, the Board will

     3
      A preponderance of the evidence is the degree of relevant evidence that a reasonable
     person, considering the record as a whole, would accept as sufficient to find that a
     contested fact is more likely to be true than untrue. 5 C.F.R. § 1201.4(q).
     4
       The administrative judge erroneously cited to regulations relevant to establishing
     jurisdiction over a retirement matter under the Federal Employees’ Retirement System
     (FERS). ID at 2. However, we find no reason to disturb the initial decision because
     such error does not affect the outcome of the appeal. See Panter v. Department of the
     Air Force, 22 M.S.P.R. 281, 282 (1984) (finding that an adjudicatory error that is not
     prejudicial to a party’s substantive rights provides no basis for reversal of an initial
     decision). The applicable laws and regulations under both FERS and CSRS require the
     issuance of a reconsideration decision by OPM for the Board to have jurisdiction over a
     retirement matter. Compare 5 U.S.C. § 8461(e), and 5 C.F.R. § 841.308, with 5 U.S.C.
     § 8347(d), and 5 C.F.R. § 831.110.
                                                                                       5

      consider the totality of the circumstances to find that OPM’s failure to act on the
      matter itself constitutes an appealable administrative action affecting the
      appellant’s rights under a retirement system. See id., ¶ 15 (finding 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).
¶8         Here, OPM asserted that it had not issued a final or initial decision on the
      appellant’s claim, but that it intended to review his case and issue an initial
      decision with reconsideration rights after the dismissal of this appeal. IAF, Tab 9
      at 4. The administrative judge relied on OPM’s assertions in finding that the
      Board lacked jurisdiction over the appeal. ID at 4.
¶9         In his petition for review, the appellant disputes the administrative judge’s
      finding that the Board lacks jurisdiction over the appeal. PFR File, Tab 1 at 6-8.
      First, he asserts that the Board has jurisdiction because OPM has made a final
      annuity calculation. Id. at 7. To support his argument, he cites to the election
      forms sent by OPM that stated that he had to reply within 30 days of the date of
      the notice, and that his election to make or not make a deposit for service credit
      was “irrevocable” and could not “be changed after final adjudication of [his]
      claim.” Id.; IAF, Tab 1 at 14, 16. He also claims that OPM determined a final
      “benefit package” on November 30, 2015, and cites to a personalized booklet of
      retirement benefits. PFR File, Tab 1 at 7; IAF, Tab 1 at 32-38.
¶10        We find that OPM did not make a final decision within the meaning of
      OPM’s regulations. Under 5 C.F.R. § 831.109(f), a final decision must contain a
      written notice of a Board appeal right.      Cf. Powell v. Office of Personnel
      Management, 114 M.S.P.R. 580, ¶ 9 (2010) (finding that OPM’s letter without
      notice of a Board appeal right constituted an appealable final decision when there
      was no indication that OPM intended to take further action in the case). Thus, the
      appellant has not provided evidence of a final decision, and, as discussed below,
                                                                                              6

      he has not provided evidence indicating that OPM does not intend to issue an
      initial decision with reconsideration rights as it stated in its motion to dismiss.
¶11         Next, the appellant argues that the Board has jurisdiction because OPM has
      been unresponsive to his claims, has caused continual delays, and does not intend
      to issue an appealable decision. PFR File, Tab 1 at 8. In support, he cites to
      Okello, 120 M.S.P.R. 498, ¶ 15, which found that OPM’s failure to act on the
      appellant’s retirement matter constituted an appealable administrative action.
      However, the facts of this case do not approach the unusual and compelling
      circumstances present in Okello, 120 M.S.P.R. 498, ¶¶ 3-11, 15-16, which
      included a 6-year delay plus numerous abortive decisions and administrative
      errors, such that the Board could find that OPM has effectively abdicated its role
      of adjudicating the appellant’s claim. Further, there is no supporting evidence for
      his   allegation    that   OPM’s   intention   to   issue   an   initial   decision   with
      reconsideration rights is deceptive and a “delay tactic.” PFR File, Tab 1 at 8;
      cf. Okello, 120 M.S.P.R. 498, ¶ 15 (finding that, although OPM’s representation
      that it intended to issue a further decision on a retirement matter normally weighs
      significantly against the Board taking jurisdiction over an appeal, the Board had
      little confidence that OPM would follow through with its stated intention based
      on the extraordinary circumstances of the case).
      The appellant’s additional claims on review fail to provide a reason to disturb the
      initial decision.
¶12         The appellant’s remaining arguments do not provide a reason to disturb the
      initial decision.     First, he argues that the administrative judge erroneously
      considered OPM’s untimely response to the acknowledgment order, including its
      motion to dismiss. PFR File, Tab 1 at 8. After OPM failed to timely respond to
      the administrative judge’s multiple orders, she suspended case processing for
      30 days under 5 C.F.R. § 1201.28(a) to allow OPM additional time to submit a
      response. IAF, Tab 2 at 6, Tabs 4-5, 7. Because OPM filed its response before
                                                                                         7

      the end of case suspension, we find that its response was timely filed and the
      administrative judge properly considered it. IAF, Tab 9.
¶13         Next, the appellant alleges that his copy of OPM’s motion to dismiss did
      not contain a date of service. PFR File, Tab 1 at 8; see 5 C.F.R. § 1201.26(b)(2)
      (providing that a certificate of service stating how and when service was made
      must accompany each pleading served by a party).                  However, OPM’s
      representative registered as an e-filer, and, in the certificate of service generated
      by e-Appeal Online when OPM electronically filed its March 16, 2016 motion to
      dismiss, OPM agreed to serve the appellant by U.S. mail by the end of the next
      business day. IAF, Tab 8, Tab 9 at 9; 5 C.F.R. § 1201.14(j)(1).       The appellant
      alleges that “OPM was also allowed to argue its case outside of protocol in a
      letter to the judge without receiving rebuttal.” PFR File, Tab 1 at 9. To the
      extent the appellant is referring to OPM’s motion to dismiss, we find that he
      concedes that he received a copy of the motion, it complied with the Board’s
      procedural requirements, he had an opportunity to respond to it, and he did, in
      fact, submit responses, after the administrative judge issued the show cause order.
      IAF, Tabs 13-14.
¶14         Further, the appellant alleges that he was prejudiced by the administrative
      judge’s erratum order, which limited the time for him to submit a response to the
      show cause order to 10 days. PFR File, Tab 1 at 8; IAF, Tab 12. We find that the
      administrative judge’s error provides no reason to disturb the initial decision
      because the appellant has not shown how it affected the outcome of the appeal.
      See Karapinka v. Department of Energy, 6 M.S.P.R. 124, 127 (1981) (finding 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).
¶15         Additionally, the appellant contends that the administrative judge failed to
      grant his motion to compel discovery. PFR File, Tab 1 at 9; IAF, Tab 6 at 1-3.
      The administrative judge acknowledged his motion to compel below, but declined
      to consider it until OPM provided its agency response.        IAF, Tab 7 at 1 n.1.
                                                                                       8

      Under 5 C.F.R. § 1201.41(b)(4), an administrative judge has broad discretion in
      ruling on discovery matters, and, absent an abuse of discretion, the Board will not
      find reversible error in such rulings.      Vaughn v. Department of the Treasury,
      119 M.S.P.R. 605, ¶ 15 (2013); Wagner v. Environmental Protection Agency,
      54 M.S.P.R. 447, 452 (1992), aff’d, 996 F.2d 1236 (Fed. Cir. 1993) (Table).
      Having reviewed the appellant’s claim on review and the record, we find that the
      administrative judge did not abuse her discretion in denying his motion to
      compel.
¶16         We also find that the appellant has not shown that the administrative judge
      abused her discretion by not imposing sanctions against OPM for failing to
      respond to her orders. PFR File, Tab 1 at 9; see Smets v. Department of the Navy,
      117 M.S.P.R. 164, ¶ 11 (2011) (stating that the imposition of sanctions is a matter
      within the administrative judge’s sound discretion, and, absent a showing that
      such discretion has been abused, the administrative judge’s determination will not
      be found to constitute reversible error), aff’d per curiam, 498 F. App’x
      1 (Fed. Cir. 2012); 5 C.F.R. § 1201.41(b)(11).
¶17         Moreover, the appellant asserts that the administrative judge erroneously
      found that he had received a refund of retirement contributions. PFR File, Tab 1
      at 8. We find that the administrative judge did not make such a finding, but
      instead summarized OPM’s letter stating that he may have received a refund of
      his retirement contributions. ID at 1-2; IAF, Tab 1 at 13. Further, this argument
      on the merits of the appeal is irrelevant to the jurisdictional issue before the
      Board. See, e.g., Sapla v. Department of the Navy, 118 M.S.P.R. 551, ¶ 7 (2012)
      (finding that the appellant’s arguments on the merits of her appeal were not
      relevant to the jurisdictional question).
¶18         Similarly, we find that the appellant’s claim that OPM violated his due
      process rights by denying him the full amount of his retirement annuity is not a
      basis for Board jurisdiction over his appeal. PFR File, Tab 1 at 9. We also find
                                                                                      9

      that his allegation of OPM’s violation of the Administrative Procedure Act is
      inapposite to the dispositive jurisdictional issue. Id. at 10.
¶19         Finally, although the appellant argues that the administrative judge was
      biased in favor of OPM, we find that he has failed to overcome the presumption
      of honesty and integrity that accompanies administrative adjudicators. Id. at 9;
      see Oliver v. Department of Transportation, 1 M.S.P.R. 382, 386 (1980).
¶20         Accordingly, we find that the administrative judge properly dismissed this
      appeal for lack of jurisdiction. 5      If the appellant is dissatisfied with any
      subsequent OPM decision regarding his retirement benefits, he may request that
      OPM reconsider the decision, and, if he is still dissatisfied, he may appeal OPM’s
      final decision to the Board. See 5 U.S.C. § 8347(d); 5 C.F.R. § 831.110. Any
      future appeal must be filed within the time limits set forth in the Board’s
      regulations. See 5 C.F.R. § 1201.22.

                       NOTICE TO THE APPELLANT REGARDING
                          YOUR FURTHER REVIEW RIGHTS
            You have the right to request review of this final decision by the
      U.S. 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


      5
        Because we find that the Board lacks jurisdiction over this appeal, we deny the
      appellant’s request to remand the case for summary judgment and assign a new
      administrative judge. PFR File, Tab 1 at 10.
                                                                                   10

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 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.
