                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     MARK A. STAPLES,                                DOCKET NUMBER
                  Appellant,                         DE-0842-16-0117-I-1

                  v.

     OFFICE OF PERSONNEL                             DATE: August 26, 2016
       MANAGEMENT,
                   Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Mark A. Staples, Albuquerque, New Mexico, pro se.

           Kristopher Lee Rogers, 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 of a reconsideration decision of the Office of Personnel
     Management (OPM) regarding the calculation of his disability retirement annuity
     benefits under the Federal Employees’ Retirement System (FERS). Generally, we


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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

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

                                           BACKGROUND
¶2             On November 13, 2012, the appellant retired from the position of Primary
     Examiner with the Department of Commerce. Initial Appeal File (IAF), Tab 1
     at 1, Tab 2 at 1. He applied for, and obtained, FERS disability retirement annuity
     benefits, which were reduced by varying portions of his Social Security disability
     benefits. IAF, Tab 2 at 1.
¶3             On September 9, 2013, the appellant filed a Board appeal of an OPM
     reconsideration decision finding that he had received an overpayment of the
     disability retirement benefits and that he was not eligible for a waiver of the
     overpayment.           Staples v. Office of Personnel Management, MSPB Docket
     No. DE-0845-13-1978-I-1, Initial Appeal File (1978 IAF), Tab 1.                After the
     appellant and OPM reached a settlement agreement resolving the overpayment
     issue, the administrative judge dismissed the appeal as withdrawn.             1978 IAF,
     Tab 9, Tab 10, Initial Decision at 1-2.
                                                                                        3

¶4         On August 11, 2014, the appellant filed a Board appeal of OPM’s reduction
     of his disability retirement benefits by the amount of his Social Security disability
     benefits.       Staples   v. Office   of   Personnel   Management,   MSPB    Docket
     No. DE-0842-14-0546-I-1, Initial Appeal File (0546 IAF), Tab 1. During a status
     conference, the administrative judge informed the appellant that it appeared that
     OPM had not issued a reconsideration decision on the relevant matter. 0546 IAF,
     Tab 9, Initial Decision at 2.     He further informed the appellant that he could
     withdraw the appeal, request an annuity computation decision from OPM, and
     then later appeal any final decision. Id. at 2-3. The appellant then withdrew his
     appeal, which the administrative judge dismissed. Id. at 1, 3.
¶5         In a letter to OPM dated September 22, 2014, the appellant requested that
     OPM make an annuity computation decision and argued that his disability
     retirement annuity should not be reduced by the amount of his Social Security
     disability benefits. IAF, Tab 7 at 4-7. OPM issued an initial decision, and the
     appellant requested reconsideration of the initial decision on July 16, 2015. IAF,
     Tab 2 at 1, 4.     In a reconsideration decision dated November 19, 2015, OPM
     affirmed its initial decision and concluded that it had correctly calculated the
     appellant’s retirement benefits in accordance with the applicable laws and
     regulations under FERS. Id. at 1-5.
¶6         The appellant next filed this Board appeal of the reconsideration decision
     and requested a hearing. IAF, Tab 1. OPM filed a motion to dismiss the appeal
     because it had rescinded its reconsideration decision and intended to issue a new
     final decision after reexamining the appellant’s case as he requested. IAF, Tab 10
     at 4, Tab 13 at 3. The appellant objected based, in part, on his poor health and
     the harm that would result from further delay. IAF, Tab 11 at 5, Tab 15 at 5,
     Tab 16 at 4-5.
¶7         Without holding the requested hearing, the administrative judge issued an
     initial decision granting OPM’s motion and dismissing the appeal for lack of
     jurisdiction.    IAF, Tab 17, Initial Decision (ID) at 1-2.   He acknowledged the
                                                                                           4

     appellant’s poor health and desire to quickly adjudicate the matter, but found no
     basis for Board jurisdiction without a final decision from OPM. ID at 2.
¶8           The appellant has filed a petition for review. Petition for Review (PFR)
     File, Tabs 2-5. 2 The agency has filed a response. PFR File, Tab 9.

                       DISCUSSION OF ARGUMENTS ON REVIEW
¶9           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 FERS after OPM has issued a
     final decision, also known as a reconsideration decision.         5 U.S.C. § 8461(e);
     5 C.F.R. § 841.308; see Okello v. Office of Personnel Management, 120 M.S.P.R.
     498, ¶ 14 (2014) (stating that a reconsideration decision is final and appealable to
     the Board). If OPM completely rescinds a reconsideration decision, its rescission
     divests the Board of jurisdiction over the appeal in which that reconsideration
     decision is at issue, and the appeal must be dismissed.            Smith v. Office of
     Personnel Management, 113 M.S.P.R. 259, ¶ 6 (2010). 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, 120 M.S.P.R. 498,
     ¶ 14.


     2
       Although the deadline for filing a petition for review was on March 15, 2016, the
     Clerk of the Board extended the deadline to March 21, 2016, to give the appellant an
     opportunity to perfect his petition for review. PFR File, Tab 1; ID at 2. Therefore, we
     grant the appellant’s motion to accept his filings as timely. PFR File, Tabs 2-4, Tab 7.
     Although the appellant supplemented his petition for review on March 23, 2016, 2 days
     past the deadline, we nevertheless have considered it. PFR File, Tab 5.
     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).
                                                                                         5

¶10        In his petition for review, the appellant challenges OPM’s purported reasons
      for its rescission of the reconsideration decision and the propriety of further
      delaying his appeal. Specifically, he challenges OPM’s contentions regarding its
      motion to dismiss and alleges that OPM made several misstatements to the Board.
      PFR File, Tab 2 at 7-9, 11, 13. First, he argues that OPM mischaracterized the
      relevant issue of his appeal as an “overpayment” of retirement benefits instead of
      as an “underpayment” of benefits due to OPM’s reduction of his annuity by his
      Social Security benefits amount. Id. at 7-9, 11; IAF, Tab 10 at 4, Tab 13 at 3.
      Next, he disputes OPM’s claim that the Board already has addressed this issue in
      his prior Board appeals. PFR File, Tab 2 at 8, 11; IAF, Tab 13 at 3. Lastly, he
      disputes OPM’s allegation that it needs to obtain documents from his employing
      agency.   PFR File, Tab 2 at 13; IAF, Tab 13 at 3.         He surmises that these
      misstatements show that OPM’s stated reasons for its rescission are false and that
      OPM will not meaningfully review his case. PFR File, Tab 2 at 8, 12‑13.
¶11        The appellant next alleges that OPM unreasonably delayed making a final
      decision and that any further delay would be harmful. Specifically, he asserts
      that OPM took over 1 year to make a final decision on his request for an annuity
      computation decision. 4 Id. at 5-6. He also alleges that OPM could complete the
      calculations relevant to making a final decision in less than an hour. Id. at 9. He
      further contends that OPM unreasonably delayed making a final decision in
      comparison to other agencies. Id. at 14-16. He concludes that these allegations
      show that OPM will further delay making a new final decision. Id. at 16. He also
      considers the fact that the Board may cite a nonprecedential order to mean that

      4
        To support this claim, the appellant submits new evidence of an email from OPM
      dated November 1, 2014. PFR File, Tab 3 at 4. We decline to consider this evidence
      further because he has not shown that the email was unavailable before the record
      closed despite his due diligence. See Cleaton v. Department of Justice, 122 M.S.P.R.
      296, ¶ 7 (2015) (observing that the Board generally will not consider evidence
      submitted for the first time on review absent a showing that, among other things, the
      documents and the information contained in the documents were unavailable before the
      record closed despite due diligence); 5 C.F.R. § 1201.115(d).
                                                                                        6

      the Board could use this nonprecedential final order in a future appeal to support
      the same result and that OPM could repeatedly rescind its final decisions. Id.
      at 5, 10-11.
¶12         Even assuming the appellant’s allegations are true, we find that they do not
      identify a basis for Board jurisdiction. See, e.g., Smith, 113 M.S.P.R. 259, ¶ 6
      (finding no Board jurisdiction over OPM’s denial of disability retirement benefits
      under FERS after OPM rescinded the reconsideration decision). The appellant
      does not dispute OPM’s assertion that it has rescinded its reconsideration decision
      and intends to issue a new final decision after reexamining his case. IAF, Tab 10
      at 4, Tab 13 at 3. Further, his allegations do not establish that OPM has refused
      or improperly failed to issue a final decision. See McNeese v. Office of Personnel
      Management, 61 M.S.P.R. 70, 74 (finding that the Board lacked jurisdiction
      despite OPM’s alleged 16-month delay in issuing a reconsideration decision
      because OPM explained that it had a backlog of cases, which were being
      processed on a first-in, first-out basis), aff’d per curiam, 40 F.3d 1250 (Fed. Cir.
      1994) (Table); cf. Okello, 120 M.S.P.R. 498, ¶¶ 5-11, 15-16 (finding jurisdiction
      when OPM improperly failed to make a final decision on the appellant’s alleged
      retirement     annuity   overpayment    within   3 years    after   rescinding   its
      reconsideration decision).
¶13         The appellant’s remaining arguments do not provide a reason to disturb the
      initial decision. He argues that the administrative judge erroneously applied the
      following cases that OPM cited in its motion to dismiss:        Frank v. Office of
      Personnel Management, 113 M.S.P.R. 164, ¶ 7 (2010); Rorick v. Office of
      Personnel Management, 109 M.S.P.R. 597, ¶ 5 (2008); and Glasgow v. Office of
      Personnel Management, 103 M.S.P.R. 531, ¶ 5 (2006). PFR File, Tab 2 at 6-9;
      ID at 2; IAF, Tab 10 at 4. Specifically, he asserts that these cases establish that
      OPM’s motion to dismiss an appeal of a reconsideration decision that it has
      rescinded may be granted only when doing so would bestow a benefit on an
      appellant or when an appellant does not challenge OPM’s contentions. PFR File,
                                                                                        7

      Tab 2 at 8.    We do not agree with this interpretation, and find that the
      administrative judge properly relied on Frank, 113 M.S.P.R. 164, ¶¶ 7‑8, for its
      holding that OPM rescinding its reconsideration decision divested the Board of
      jurisdiction over the appeal. ID at 2.
¶14         The appellant further argues that the administrative judge failed to consider
      his filings and the factual implications of the poor state of his health. PFR File,
      Tab 2 at 4, 13-14. The administrative judge acknowledged the appellant’s health
      in the initial decision, but properly found no basis for jurisdiction.     ID at 2.
      Further, the appellant’s conclusory statement that the administrative judge did not
      consider his filings does not provide a reason for review. PFR File, Tab 2 at 4;
      see Marques v. Department of Health & Human Services, 22 M.S.P.R. 129, 132
      (1984) (finding that the administrative judge’s failure to mention all of the
      evidence of record does not mean that she did not consider it in reaching her
      decision), aff’d, 776 F.2d 1062 (Fed. Cir. 1985) (Table).
¶15         The appellant, moreover, raises an allegation of disability discrimination for
      the first time on review. PFR File, Tab 2 at 12. However, the Board generally
      will not consider an argument raised for the first time in a petition for review
      absent a showing that it is based on new and material evidence not previously
      available despite the party’s due diligence.        Banks v. Department of the
      Air Force, 4 M.S.P.R. 268, 271 (1980); see 5 C.F.R. § 1201.115(d). In any event,
      prohibited personnel practices under 5 U.S.C. § 2302(b) are not an independent
      source of Board jurisdiction. Wren v. Department of the Army, 2 M.S.P.R. 1, 2
      (1980), aff’d, 681 F.2d 867, 871-73 (D.C. Cir. 1982). Thus, we decline to address
      this argument further.
¶16         Finally, the appellant’s arguments on the merits of the appeal are irrelevant
      to the jurisdictional issue before the Board. PFR File, Tab 2 at 8 n.1, 11-12; 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).
                                                                                                8

¶17         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 disability 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. § 8461(e)(1); Smith,
      113 M.S.P.R. 259, ¶ 8; 5 C.F.R. § 841.308.           Any future appeal must be filed
      within the time limits set forth in the Board’s regulations.                   See Smith,
      113 M.S.P.R. 259, ¶ 8; 5 C.F.R. § 1201.22(b)(1).

                       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 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

      5
        As an alternative to reversing the initial decision, the appellant requests that the Board
      compel OPM to make a final decision within 30 days. PFR File, Tab 2 at 17. Although
      we lack the authority to make such an order, we encourage OPM to act expeditiously.
      See McNeese, 61 M.S.P.R. at 74-75 (finding that, absent Board jurisdiction, the Board
      lacks the authority to order OPM to process a request for reconsideration within a
      certain period of time).
                                                                                  9

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.
