                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     EMMANUEL S. SAXIONES,                           DOCKET NUMBER
                  Appellant,                         DA-0831-14-0460-I-1

                  v.

     OFFICE OF PERSONNEL                             DATE: January 20, 2015
       MANAGEMENT,
                   Agency.



                THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Norman Jackman, Esquire, Cambridge, Massachusetts, for the appellant.

           Christopher H. Ziebarth, Washington, D.C., 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 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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
     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).

                                      BACKGROUND
¶2         The appellant previously filed an appeal challenging the final decision of
     the Office of Personnel Management (OPM) that recomputed his Civil Service
     Retirement System (CSRS) annuity benefits by eliminating credit for his
     post-1956 military service. Saxiones v. Office of Personnel Management, MSPB
     Docket No. DA-0831-13-0299-I-1, Initial Decision (0299 ID) at 1 (August 20,
     2013). On July 30, 2013, OPM notified the Board and the appellant that it had
     rescinded the final decision and that it would provide the appellant with an
     opportunity to make the deposit for his post-1956 military service. 0299 ID at 2.
     Because OPM had completely rescinded its decision, the administrative judge
     dismissed the appeal for lack of jurisdiction.    0299 ID at 2-3.     In the initial
     decision, the administrative judge noted that the appellant could file a new appeal
     if OPM did not provide the appellant with a new decision within 90 calendar days
     of the date the decision became final, which was September 24, 2013. 0299 ID
     at 3 n.1.
                                                                                       3

¶3           On June 6, 2014, the appellant filed the present appeal pursuant to the
     administrative judge’s footnote given that OPM had not provided him with a new
     decision concerning his retirement annuity calculations or notified him of the
     amount to be deposited in order to receive credit for his post-1956 military
     service. Initial Appeal File (IAF), Tab 1 at 1, 4-5. In response, OPM asserted,
     among other things, that it was trying to obtain information regarding the amount
     of the deposit for his post-1956 military service from the Defense Finance
     Accounting Service Center (DFAS) and that it was dependent on that agency to
     provide the necessary documentation. IAF, Tab 6 at 4-5. It also stated that it had
     not yet produced any decision that would bring the appeal within the Board’s
     jurisdiction. Id. at 5.
¶4           In an initial decision based on the written record, the administrative judge
     dismissed the appeal for lack of jurisdiction. IAF, Tab 11, Initial Decision (ID).
     He found that OPM indicated that it still intended to issue a decision but needed
     further information from DFAS to verify the appellant’s military earnings before
     it could calculate the deposit amount.      ID at 3.   He additionally found that,
     although a substantial amount of time had passed since OPM represented that it
     would provide the appellant with an opportunity to make a deposit for his military
     service, OPM had not refused or improperly failed to issue a final decision. ID
     at 3.     The administrative judge therefore found it appropriate under the
     circumstances to allow OPM to issue a final decision in the matter. ID at 3. The
     administrative judge also noted that, to the extent the appellant was raising issues
     regarding the calculation of his retirement annuity that were not related to his
     deposit for military service, those issues were duplicative of a previously-filed
     appeal that was pending before the Board, Saxiones v. Office of Personnel
     Management, MSPB Docket No. DA-0831-11-0627-I-2.               ID at 3-4 n.2.    He
     therefore dismissed those issues on the grounds of adjudicatory efficiency. ID
     at 3-4 n.2.
                                                                                            4

¶5         The appellant has filed a petition for review in which he argues that the
     Board should demand OPM take immediate action to provide him his proper
     annuity. Petition for Review (PFR) File, Tab 1. OPM has filed a response in
     opposition. PFR File, Tab 4.
                      DISCUSSION OF ARGUMENTS ON REVIEW
¶6         The Board’s jurisdiction over CSRS retirement cases is granted by 5 U.S.C.
     § 8347(d)(1), which states “an administrative action or order affecting the rights
     or interests of an individual or of the United States under this subchapter
     [subchapter III of chapter 83] may be appealed to the Merit Systems Protection
     Board under procedures prescribed by the Board.” Poole v. Department of the
     Army, 117 M.S.P.R. 516, ¶ 10 (2012). The Board generally has jurisdiction over
     a determination on the merits of a retirement matter only after OPM has issued a
     final decision. Id. Nevertheless, the Board has found jurisdiction in retirement
     appeals despite the absence of a final decision from OPM where OPM has
     improperly failed or refused to issue a reconsideration decision after issuing an
     initial decision. Id., ¶ 11.
¶7         Here, the administrative judge found that the evidence indicated that OPM
     intended to issue a final decision in the matter. ID at 3. He also found that OPM
     had not refused or improperly failed to issue a final decision under the
     circumstances. ID at 3. We agree with these findings. IAF, Tab 6. Accordingly,
     the administrative judge properly dismissed the appeal for lack of jurisdiction and
     the Board, consequently, lacks the authority to order OPM to take immediate
     action as the appellant requests. 2         See McNeese v. Office of Personnel
     Management, 61 M.S.P.R. 70, 71-75 (despite OPM’s long delay in issuing a final
     appealable decision, the Board lacked jurisdiction because OPM explained its

     2
       To the extent that the appellant challenges the administrative judge’s dismissal of any
     claims that are duplicative of the claims he raised in MSPB Docket No. DA-0831-11-
     0627-I-2, we agree with the administrative judge’s finding to dismiss those claims on
     the grounds of adjudicatory efficiency. ID at 3-4 n.2; see Zgonc v. Department of
     Defense, 103 M.S.P.R. 666, ¶ 6 (2006), aff’d, 230 F. App’x 967 (Fed. Cir. 2007).
                                                                                  5

delay and expressed an intent to issue a reconsideration decision), aff’d, 40 F.3d
1250 (Fed. Cir. 1994) (Table).

                 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.
     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
                                                                           6

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.
