                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     ROGER L. HAYNES,                                DOCKET NUMBER
                  Appellant,                         DE-3443-14-0186-I-1

                  v.

     RAILROAD RETIREMENT BOARD,                      DATE: October 8, 2014
                  Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Roger L. Haynes, Wichita, Kansas, pro se.

           Daniel J. Bartnicki, Chicago, Illinois, for the agency.


                                           BEFORE

                              Susan Tsui Grundmann, Chairman
                              Anne M. Wagner, Vice Chairman
                                 Mark A. Robbins, Member


                                       FINAL ORDER

¶1         The appellant has filed a petition for review of the initial decision, which
     dismissed his retirement benefits 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


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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     interpretation of statute or regulation or the erroneous application of the law to
     the facts of the case; the 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           Before delving into the specific facts of this case, we note by way of
     background that the Railroad Retirement Board (the agency or RRB) is an
     independent agency in the Federal government’s executive branch. The agency’s
     chief mission is to administer wide-ranging retirement, unemployment, and
     sickness benefit programs for the country’s railroad employees and their families.
     If an employee is dissatisfied with an RRB decision made on his claim, he may
     seek reconsideration from the RRB office that made the decision. Should he not
     agree with the reconsideration decision, he may then appeal to the agency’s
     Bureau of Hearings and Appeals. See, e.g., Chicago & Northwestern Railway Co.
     v. United States, 453 F.2d 759, 760 (Ct. Cl. 1972).
¶3           It is apparently undisputed that the appellant, who was never a federal
     employee,     worked   in   the   railroad   industry from October 1972     through
     September 1987, and in July 1988. Initial Appeal File (IAF), Tab 6 at 10, Tab 8
     at 5.   The agency found the appellant to be totally and permanently disabled.
     IAF, Tab 6 at 10. Thus, the appellant receives a monthly disability retirement
     annuity, pursuant to the Railroad Retirement Act of 1974, 45 U.S.C. §§ 231
     et seq. (RRA), in the amount determined by the agency.          Id. at 10-14.   The
                                                                                        3

     appellant requested that the agency reconsider his monthly payment amount,
     which it had previously calculated in September 2013. IAF, Tab 1 at 4, 9. The
     agency denied the appellant’s request as untimely. Id. at 9.
¶4         On February 3, 2014, the appellant filed an initial appeal, essentially
     arguing that his disability retirement annuity should be reconsidered, despite the
     untimeliness of his request, because he “did not see the appeal rights on the back”
     of the agency’s decision letter. Id. at 4. The administrative judge’s February 7,
     2014 order advised the appellant of his burden to establish that the Board has
     jurisdiction over his retirement benefits appeal. IAF, Tab 2 at 2-3. The agency
     filed a motion to dismiss, arguing that the appellant was not a federal employee
     and that the Board lacks jurisdiction over administrative decisions made pursuant
     to the RRA. IAF, Tab 6 at 4, 7-9. In response, the appellant admitted that he had
     “never been a federal employee.” IAF, Tab 8 at 5. But, the appellant seemed to
     argue that this was because the agency discriminated against him by refusing to
     “let [him] apply for a federal job” or “work as a[n] apprentice” at the agency. Id.
¶5         The administrative judge dismissed the appeal for lack of jurisdiction,
     without holding the requested hearing. IAF, Tab 9, Initial Decision (ID). He
     found no statute or regulation that might serve as the basis for Board jurisdiction
     over a decision under the RRA. ID at 4-6. He did not address the appellant’s
     claim of discrimination in his nonselection for employment at the agency.
¶6         The appellant has filed a timely petition for review. Petition for Review
     (PFR) File, Tab 1.      He argues that: (1) he should have been receiving a
     supplemental annuity based on hardship; and (2) the agency discriminated against
     him by denying him employment on the basis of his status as permanently
     disabled. 2 See id. The agency has responded to the petition for review. PFR
     File, Tab 5.



     2
       Although the administrative judge did not address, in his initial decision, the
     appellant’s claim of discrimination in his nonselection for employment at the agency,
                                                                                            4

¶7         The Board’s jurisdiction is not plenary; it 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, by preponderant evidence, that his appeal is within the
     Board’s jurisdiction.    5 C.F.R. § 1201.56(a)(2)(i).     However, the appellant has
     failed to offer any law, rule, or regulation that provides for Board jurisdiction
     over appeals from the agency’s decisions regarding RRA retirement benefits for
     private railroad industry employees, and we are aware of none.
¶8         The Board has jurisdiction over retirement appeals that qualify as
     determinations affecting the rights or interests of an individual under the Civil
     Service Retirement System and the Federal Employees’ Retirement System.
     5 C.F.R § 1201.3(a)(2) (citing 5 U.S.C. §§ 8347(d)(1)-(2), 8461(e)(1); 5 U.S.C.
     § 8331 note; 5 C.F.R. Parts 831, 839, 842, 844, 846). The RRA, on the other
     hand, does not provide for Board review of the agency’s decisions. See 45 U.S.C.
     § 231g (providing for judicial review consistent with the Railroad Unemployment
     Insurance Act (RUIA), located at 45 U.S.C. §§ 351-69); 45 U.S.C. § 355(f)
     (providing only the federal courts of appeals with authority to review agency
     decisions under the RUIA).        As a result, the Board lacks jurisdiction over
     retirement benefits administered pursuant to the RRA. Cf. McBurney v. Office of
     Personnel Management, 39 M.S.P.R. 126, 131 n.3 (1988) (finding that the Board
     lacks jurisdiction over benefits administered by the Railroad Retirement System).
     Therefore, we agree with the administrative judge that the Board lacks
     jurisdiction over the appellant’s retirement benefit appeal. 3

     the appellant nonetheless raised the argument below. Thus, the Board may consider this
     argument on review.
     3
       To the extent that the administrative judge’s jurisdictional order was deficient, this
     deficiency was cured by the agency’s response, IAF, Tab 6, and the initial decision
     itself, ID at 3-6, such that the appellant was on notice as to what he must do to address
     his retirement benefit claim on petition for review. See, e.g., Fleming v. Department of
     Labor, 97 M.S.P.R. 341, ¶ 9 (2004) (finding that the appellant received an opportunity
     to meet his jurisdictional burden on petition for review because the initial decision
                                                                                               5

¶9         Similarly, the appellant has failed to nonfrivolously allege Board
     jurisdiction over his claim of disability discrimination in his nonselection for
     employment at the agency.         “An agency’s failure to select an applicant for a
     vacant position is generally not appealable to the Board.”              Prewitt v. Merit
     Systems Protection Board, 133 F.3d 885, 886 (Fed. Cir. 1998); Diamond v. U.S.
     Postal Service, 51 M.S.P.R. 448, 450 (1991) (holding that the Board lacked
     jurisdiction over an appellant’s nonselection), aff’d, 972 F.2d 1353 (Fed. Cir.
     1992) (Table). As such, “claims of unlawful conduct in the selection process
     ordinarily must be brought before other forums.”              Prewitt, 133 F.3d at 886.
     Therefore, we also find that the appellant failed to nonfrivolously allege Board
     jurisdiction over his claim of discrimination in his nonselection. 4

                      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 prejudicial

           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.


     itself provided notice as to what he must have done to establish jurisdiction); Nichols v.
     Department of the Interior, 69 M.S.P.R. 386, 388–89 (1996) (determining that an
     administrative judge’s failure to provide an appellant with proper jurisdictional notice
     was cured by the agency’s pleadings).
     4
       Because the Board lacks jurisdiction over the appellant’s nonselection claim, the
     administrative judge’s failure to address this claim in the initial decision did not
     prejudice the appellant’s substantive rights, and thus, it provides no basis for reversal of
     the initial decision. See Panter v. Department of the Air Force, 22 M.S.P.R. 281, 282
     (1984) (an adjudicatory error that is not prejudicial to a party’s substantive rights
     provides no basis for reversal of an initial decision).
                                                                                  6

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 your court
appeal, you may visit our website at http://www.mspb.gov/probono for a list of
attorneys who have expressed interest in providing pro bono representation for
Merit Systems Protection Board appellants before the court. 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.
