                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     JOHN R. SEEGER,                                 DOCKET NUMBER
                   Appellant,                        AT-0831-16-0312-I-1

                  v.

     OFFICE OF PERSONNEL                             DATE: July 22, 2016
       MANAGEMENT,
                   Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL 1

           John R. Seeger, Theodore, Alabama, pro se.

           Kristopher L. 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 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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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 address and deny the appellant’s request for sanctions, raised
     in the first instance on review, we AFFIRM the initial decision.

                                      BACKGROUND
¶2        The appellant filed a Board appeal alleging that, in December 2015, the
     Office of Personnel Management (OPM) erroneously increased the share of his
     Civil Service Retirement System (CSRS) retirement annuity awarded to his
     former spouse pursuant to a court order, and decreased his apportioned share by a
     corresponding amount. Initial Appeal File (IAF), Tab 1 at 2, Tab 10 at 2‑4. The
     administrative judge issued an order to show cause, which informed the appellant
     that the Board’s jurisdiction over appeals of retirement matters does not vest until
     OPM has issued a final decision, and ordered the appellant to submit evidence
     that OPM issued a final decision on his claim. IAF, Tab 7.
¶3        In response, the appellant submitted argument regarding the apportionment
     of his retirement annuity, and contended that OPM’s reduction of his apportioned
     share of the annuity for the prior 3 months reflected that OPM had made its final
     decision. IAF, Tab 10 at 2‑3. OPM moved to dismiss the appeal for lack of
     jurisdiction, asserting that it had not issued a final decision on the appellant’s
     claim. IAF, Tab 9 at 4.
                                                                                      3

¶4        The administrative judge dismissed the appeal for lack of jurisdiction
     without holding the appellant’s requested hearing. IAF, Tab 11, Initial Decision
     (ID); IAF, Tab 3 at 2. The appellant has filed a petition for review of the initial
     decision, and OPM has responded in opposition to the petition for review.
     Petition for Review (PFR) File, Tabs 1, 4.

                     DISCUSSION OF ARGUMENTS ON REVIEW
¶5        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 jurisdiction over his appeal.          Reid v. Office of Personnel
     Management, 120 M.S.P.R. 83, ¶ 6 (2013); 5 C.F.R. § 1201.56(b)(2)(i)(a). The
     Board generally lacks jurisdiction to hear an appeal of a retirement matter before
     OPM has issued a final decision on the matter.         See Ramirez v. Office of
     Personnel Management, 114 M.S.P.R. 511, ¶ 7 (2010); Fagone v. Office of
     Personnel Management, 85 M.S.P.R. 49, ¶ 9 (2000).        However, the Board has
     recognized an exception to that general rule, and may take jurisdiction over a
     retirement appeal absent an OPM final decision if the appellant has made
     “repeated requests” for such a decision and the evidence indicates that OPM
     does not intend to issue a final decision. Fagone, 85 M.S.P.R. 49, ¶ 9.
¶6        Here, the administrative judge correctly found that the Board lacked
     jurisdiction over the appellant’s claim regarding the alleged change to the
     apportionment of his retirement annuity because the appellant failed to provide
     evidence that OPM had issued a final decision on the matter, and OPM asserted
     that it had not issued such a final decision. ID at 2. On review, the appellant
     reiterates his argument, raised below, that OPM’s action in reducing his
     apportionment of the annuity and increasing his former spouse’s apportionment
     demonstrates that OPM made a final decision on the issue.         PFR File, Tab 1
     at 1-2; IAF, Tab 10 at 3.   We agree with the administrative judge that OPM’s
                                                                                               4

     actions do not constitute a final decision. ID at 2. A final decision is one that
     OPM issues after a request for reconsideration of an initial decision, or a decision
     that OPM designates as final. 5 C.F.R. § 831.109(f). Such a decision must be in
     writing, and contain notice of the right to appeal the decision to the Board. Id.;
     see 5 C.F.R. § 831.110.       The administrative judge correctly found that OPM’s
     alleged change to the apportionment of the annuity did not satisfy the criteria for
     an appealable final decision. ID at 2.
¶7         The administrative judge further found that there was no basis to conclude
     that OPM did not intend to issue a final, appealable decision regarding the
     appellant’s claim. 2    Id.   We agree.      On review, the appellant contends that
     approximately a month before the initial decision in his Board appeal was issued,
     he left a detailed telephone message with OPM’s Court Ordered Benefits Branch
     regarding the change to the apportionment of his annuity and that he never
     received a response from OPM.           PFR File, Tab 1 at 1.       However, in OPM’s
     March 10, 2016 pleading moving to dismiss the appeal for lack of jurisdiction,
     OPM represented that it would treat the appellant’s Board appeal as a request for
     a final decision and that it intended to issue a final decision on his claim. PFR
     File, Tab 9 at 4. Under these circumstances, the administrative judge correctly
     dismissed the appeal for lack of jurisdiction. ID at 2; see McNeese v. Office of
     Personnel Management, 61 M.S.P.R. 70, 74, aff’d, 40 F.3d 1250 (Fed. Cir. 1994)

     2
       An appellant must receive explicit information on what is required to establish an
     appealable jurisdictional issue. Burgess v. Merit Systems Protection Board, 758 F.2d
     641, 643–44 (Fed. Cir. 1985). Prior to issuing the initial decision, the administrative
     judge did not notify the appellant that he could establish jurisdiction over an appeal of a
     retirement matter if the evidence indicated that OPM did not intend to issue a final
     decision despite repeated requests. IAF, Tab 7; see Fagone, 85 M.S.P.R. 49, ¶ 9.
     However, the initial decision provided the requisite notice, affording the appellant an
     opportunity to meet his burden on review. ID at 2; see Easterling v. U.S. Postal
     Service, 110 M.S.P.R. 41, ¶ 11 (2008) (finding that an administrative judge’s failure to
     provide an appellant with proper Burgess notice can be cured if the agency’s pleadings
     contain the notice that was lacking, or if the initial decision puts the appellant on notice
     of what he must do to establish jurisdiction, thus affording him the opportunity to meet
     his jurisdictional burden on review).
                                                                                          5

     (Table) (finding that a 16–month delay by OPM in processing a retirement matter
     did not amount to a constructive denial of a final decision when OPM indicated
     that it intended to issue a final decision).
¶8         For the first time on review, the appellant requests that the Board exclude
     OPM’s representative from further proceedings for “contumacious conduct
     prejudicial to the administration of justice” based on:       (1) the representative’s
     failure to submit the agency file, as required by the administrative judge’s
     acknowledgment order; and (2) the representative’s failure to mail OPM’s
     March 10, 2016 pleading moving to dismiss the appeal until 13 days after the date
     indicated on the certificate of service. PFR File, Tab 1 at 2; IAF, Tab 2 at 6,
     Tab 5, Tab 9 at 5; see 5 C.F.R. § 1201.43(d) (providing that an administrative
     judge may exclude or limit the participation of a representative or other person in
     a case for contumacious conduct or conduct prejudicial to the administration of
     justice).   We will not consider the appellant’s argument that sanctions are
     warranted based on OPM’s failure to produce the agency file because the
     appellant was aware of this issue prior to the issuance of the initial decision, and
     failed to move for sanctions below. 3          See Banks v. Department of the
     Air Force, 4 M.S.P.R. 268, 271 (1980) (finding that 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). Even if we were to consider this argument,
     however, we find that, under the circumstances at issue here, sanctions are not
     warranted in the interest of justice based on either of the appellant’s allegations
     of improper conduct by OPM’s representative.              See Hay v. U.S. Postal
     Service, 106 M.S.P.R. 151, ¶ 10 (2007) (finding that a party is not entitled to
     sanctions for the untimely filing of a submission absent a showing of

     3
       If, as the appellant contends, OPM did not mail him its March 10, 2016 pleading until
     March 24, 2016, he would not have been aware of this issue prior to the issuance of the
     initial decision. ID at 1; PFR File, Tab 1 at 2.
                                                                                     6

     prejudice); 5 C.F.R. § 1201.43 (providing that an administrative judge may
     impose sanctions upon the parties as necessary to serve the ends of justice).
     Accordingly, we modify the initial decision to deny the appellant’s request
     for sanctions.
¶9         Finally, with his petition for review, the appellant has submitted documents
     that were not contained in the record below, including: (1) statements from OPM
     reflecting his annuity payments for January and February 2016; (2) an email from
     OPM, dated February 16, 2016, instructing the appellant to contact OPM’s Court
     Ordered Benefits Branch regarding the apportionment of his annuity; and
     (3) printouts of bank transactions reflecting OPM’s payments to the appellant in
     December 2015 and January and February 2016. PFR File, Tab 1 at 5‑10. The
     Board generally will not consider evidence submitted for the first time on review
     absent a showing that: (1) the documents and the information contained in the
     documents were unavailable before the record closed despite due diligence; and
     (2) the evidence is of sufficient weight to warrant an outcome different from that
     of the initial decision. Carson v. Department of Energy, 109 M.S.P.R. 213, ¶ 21
     (2008), aff’d, 357 F. App’x 293 (Fed. Cir. 2009); 5 C.F.R. § 1201.115(d). The
     appellant has not demonstrated that the evidence at issue was unavailable before
     the record closed below and, even if it were, he has failed to demonstrate that it
     would establish Board jurisdiction over his appeal. Consequently, the evidence is
     not material to the outcome of his case, and we will not consider it. See Russo v.
     Veterans Administration, 3 M.S.P.R. 345, 349 (1980) (stating that the Board will
     not grant a petition for review based on new evidence absent a showing that it is
     of sufficient weight to warrant an outcome different from that of the
     initial decision).
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                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
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.
      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
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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.
