United States Merit Systems Protection Board

Case Report for January 15, 2010


Note:
These summaries are descriptions prepared by individual MSPB employees. They do not represent official summaries approved by the Board itself, and are not intended to provide legal counsel or to be cited as legal authority.  Instead, they are provided only to inform and help the public locate Board precedents.


BOARD DECISIONS

 

Appellant: Frederick J. Beverly

Agency: United States Postal Service

Decision Number: 2010 MSPB 2

Docket Number: DC-0353-09-0535-I-1

Issuance Date: January 7, 2010

Jurisdiction – Constructive Suspension

The appellant petitioned for review of an initial decision that dismissed his appeal for lack of jurisdiction. The appellant, a preference eligible Letter Carrier, was removed on misconduct charges. He grieved the action and the parties executed a Formal Step A Grievance Resolution that mitigated the removal to a 7-day suspension. More than a year and a half later, the appellant filed a pro se Board appeal. He checked boxes on the appeal form applicable to a failure to or improper restoration, reemployment, or reinstatement, as well as a claim under the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA). He alleged that although the agency cleared him to return to duty in December 2007, it refused to restore him to duty. The administrative judge ordered the appellant to demonstrate that he timely filed his appeal and that the Board has jurisdiction over his USERRA and restoration claims. The appellant did not respond and the administrative judge issued an ID dismissing the appeal for lack of jurisdiction.

Holdings: The Board granted the appellant’s petition for review (PFR), vacated the initial decision, and remanded the case to the regional office for further adjudication:

1. Although an employee’s voluntary absence from work is unappealable, a constructive suspension with the Board’s jurisdiction occurs when an agency bars an employee from duty for more than 14 days. The dispositive question in such a case is whether the agency or the employee initiated the absence. If the employee initiated the absence, then it is not a constructive suspension.

2. Although the appellant used the terms “restoration” and “reinstatement,” he was actually alleging constructive suspension and USERRA discrimination claims.

3. An appellant must receive explicit information on what is required to establish an appealable jurisdictional issue. Because the appellant did not receive such notice as to a constructive suspension, the appeal must be remanded to afford the appellant and opportunity to submit evidence and argument to show that the Board has jurisdiction over his constructive suspension claim.

4. If the administrative judge finds that the Board has jurisdiction over the appellant’s constructive suspension appeal, then he must further determine whether such an appeal was timely filed.

Appellant: David M. Treacy

Agency: Office of Personnel Management

Decision Number: 2010 MSPB 3

Docket Number: DC-0831-09-0456-I-1

Issuance Date: January 7, 2010

Action Type: Retirement/Benefit Matter

Timeliness – PFR

The appellant petitioned for review of an initial decision that dismissed his appeal for lack of jurisdiction. His PFR was filed about two and a half months after the deadline for timely filing.

Holdings: The Board dismissed the PFR as untimely filed without good cause shown for the delay in filing.

Appellant: Richard Erickson

Agency: United States Postal Service

Decision Number: 2010 MSPB 4

Docket Number: AT-3443-07-0016-M-1

Issuance Date: January 7, 2010

USERRA/VEOA/Veterans’ Rights

This case was on remand from the U.S. Court of Appeals for the Federal Circuit, 571 F.3d 1364, which affirmed in part and reversed in part the Board’s decision, 108 M.S.P.R. 494 (2008). Still at issue was whether the agency discriminated against the appellant, and thereby violated USERRA, when it removed him from employment in 2000. More specifically, the court remanded the case to the Board to determine whether the appellant had waived his USERRA rights by abandoning his civilian career in favor of one in the military. At the time of his removal, the appellant was serving his fifth consecutive voluntary reenlistment in the Army National Guard Reserve, and had been serving full-time in the active guard reserve for 6 of the past 10 years, the last 4 years continuously.

Holdings: The Board denied the appellant’s request for relief under USERRA, finding that he had abandoned his civilian career in favor of one in the military. In so finding, the Board cited 3 factors, none of which may have been sufficient by itself: the length of the appellant’s absences from his civilian employment; his failure to respond to the notice of proposed removal, or to grieve or file a chapter 75 appeal of the removal action; and his expressed preference for military over civilian service.

Appellant: Werner Bambl

Agency: Department of the Treasury

Decision Number: 2010 MSPB 5

Docket Number: SF-3443-09-0256-I-1

Issuance Date: January 8, 2010

Jurisdiction
Board Procedures/Authorities
- Withdrawal of Appeal/PFR

The appellant filed a submission challenging an initial decision that dismissed his appeal as withdrawn. In January 2009, the appellant filed a pro se appeal challenging a lowered annual performance evaluation. During a telephonic status conference in March, the appellant voluntarily withdrew his appeal. The initial decision informed the appellant that the deadline for filing a PFR was April 7, 2009. On August 27, 2009, the appellant filed a new appeal form with the regional office, again challenging his lowered performance evaluation, which was forwarded to the Clerk of the Board. In response to the Clerk’s notice that the pleading was untimely, the appellant filed a motion to waive the time limit.

Holdings: The Board vacated the initial decision and dismissed the appeal for lack of jurisdiction:

1. It is generally appropriate to treat a request for reconsideration of an appellant-initiated dismissal of an appeal as a late-filed petition for appeal or as a request to reopen and reinstate a prior appeal.

2. Nevertheless, the issue of the Board’s jurisdiction is always before the Board and may be raised by either party or by the Board on its own motion at any time.

3. The Board generally lacks jurisdiction over appeals from performance appraisal ratings. The only bases on which the Board could exercise jurisdiction over such an appeal would be as an individual right of action (IRA) appeal or as a USERRA claim.

4. The appellant did not respond to the AJ’s Acknowledgment Order that advised him that it did not appear that he had alleged an appealable action and ordered him to file evidence and argument to prove that the Board has jurisdiction over his appeal.

Appellant: William J. Parks

Agency: United States Postal Service

Decision Number: 2010 MSPB 6

Docket Number: AT-0752-06-0166-C-1; AT-0752-06-0167-C-1

Issuance Date: January 11, 2010

Appeal Type: Adverse Action by Agency

Action Type: Reduction in Grade/Rank/Pay

Settlement – Validity – Enforceability

The appellant petitioned for review of an initial decision that dismissed his petition for enforcement as settled. At issue was the correct amount of back pay. The AJ issued an order during the processing of the appeal stating that the parties had reach an oral settlement but sought time to reduce that settlement to writing, and that the appellant then decided to “renege” on the oral settlement. In response to the administrative judge’s show‑cause order on why the appeal should not be dismissed as settled, the appellant claimed that scheduling conflicts limited his representative to telephonic participation in the settlement conference, and that side effects from his diabetes hampered his ability to fully understand the settlement discussions. The agency responded that both the appellant and his representative understood the negotiations, and clearly stated that the appellant was willing to settle the matter if the agency paid him for 60 hours of overtime. The agency supported its assertions with affidavits from its participants in the negotiations. The agency also adduced the written settlement agreement it had prepared, which was consistent with its account of the oral settlement agreement. The administrative judge found that the parties entered into a valid oral settlement, and that the terms of that oral agreement were reflected in the unsigned written agreement. The administrative judge further found, however, that, if the parties wanted to reduce their oral agreement to writing and have that agreement enforced by the Board, they may seek to vacate the initial decision dismissing the petition for enforcement before the initial decision becomes final, and that, absent such action, the oral settlement would not be entered into the record for enforcement.

Holdings: The Board denied the appellant’s PFR, reopened the case on its own motion, and affirmed the initial decision as modified, dismissing the petition for enforcement as settled and accepting the oral settlement agreement into the record for enforcement purposes:

1. A party challenging the validity of a settlement agreement bears a heavy burden of showing a basis for invalidating it.

2. The appellant’s contention that his medical condition prevented him from having the mental capacity necessary to enter into a valid settlement agreement does not meet this heavy burden. Neither this allegation nor his allegation of his representative’s telephone problem outweigh the sworn statements of the agency witnesses present during the negotiations.

3. The AJ erred by dismissing the appeal based upon an oral settlement without first documenting whether the parties intended it to be entered into the record for enforcement purposes. Here, the administrative judge determined that the parties reached a valid oral settlement and that the unsigned written agreement set for the agreement’s terms. The unsigned agreement clearly indicated that the parties intended for the agreement to be included in the Board’s record for enforcement purposes.

Appellant: Susan J. Spidel

Agency: Department of Agriculture

Decision Number: 2010 MSPB 7

Docket Number: DE-3443-09-0083-I-1

Issuance Date: January 11, 2010

Settlement – Validity – Enforceability

The appellant petitioned for review of an initial decision that dismissed her appeal as settled, but which did not incorporate the settlement agreement into the record for purposes of enforcing its terms. The appeal challenged the appellant’s removal from her excepted service position. The administrative judge issued an acknowledgment order noting that there was a question whether the Board had jurisdiction over the appeal. In her response, the appellant asserted that her appeal was within the Board’s jurisdiction because she had completed more than 2 years of current continuous service in the same or similar positions. The agency did not respond. The parties later submitted a written settlement agreement, which stated that the parties would request that the Board accept the agreement into the record so that it would retain jurisdiction to enforce its terms. In the initial decision dismissing the appeal as settled, the administrative judge stated that, because there was an outstanding question of Board appellate jurisdiction, the Board would not retain jurisdiction to enforce the terms of the settlement agreement.

Holdings: The Board granted the appellant’s PFR and affirmed the initial decision as modified, accepting the settlement agreement into the record for enforcement purposes:

1. The Board will incorporate a settlement agreement into the record for enforcement when: (1) The parties intended that the agreement be enforced by the Board; (2) the Board has jurisdiction over the appeal; and (3) the agreement is lawful on its face and was freely reached and understood by the parties. Before dismissing an appeal as settled, an administrative judge must determine whether the settlement agreement is enforceable under these criteria.

2. The Board found no error in the administrative judge’s determination that the parties reached a settlement agreement, that it was freely reached, that the parties understood its terms, and that those terms are lawful. The parties also agreed to ask that the Board accept the agreement into the record for enforcement. Under these circumstances, the administrative judge should have determined whether the agreement could be enforced by the Board, according to the parties’ intent, by determining whether the Board has jurisdiction over the appeal.

3. The record is developed on this issue and demonstrates that the appellant has established jurisdiction under 5 U.S.C.  7511(a)(1)(C)(ii), in that she has “completed 2 years of current continuous in the same or similar positions in an Executive agency under other than a temporary appointment limited to 2 years or less.”

Appellant: Kristin K. Phillips

Agency: Department of Transportation

Decision Number: 2010 MSPB 8

Docket Number: DE-1221-08-0354-W-2

Issuance Date: January 11, 2010

Appeal Type: Individual Right of Action (IRA)

Whistleblower Protection Act
- Clear and Convincing Evidence

The appellant petitioned for review of an initial decision that denied her request for corrective action in her IRA appeal. The appellant was a GS-14 Administrator in the Montana Division of the agency’s Federal Motor Carrier Safety Administration (FMCSA), the most senior FMCSA official in that state. In April 2006, while she was serving a detail in Washington, D.C., 5 of her subordinates submitted a complaint about her to the agency’s Office of Inspector General (OIG). In March 2007, while the OIG’s investigation of that complaint was still pending, the appellant released to several news outlets, elected officials, and federal agencies a complaint regarding the agency’s alleged abrogation of its enforcement obligations vis--vis a particular motor carrier under the agency’s purview. In May 2007, the OIG completed its investigation and issued a Report of Investigation (ROI) along with a cover memorandum, concluding that 2 of the 6 complaints made by the appellant’s subordinates had merit: that the appellant used her public office for the gain of a private business; and that the appellant violated the Standards of Ethical Conduct by maintaining a close personal friendship with a principal of a motor carrier over which the appellant was exercising the agency’s regulatory authority. In August 2007, the agency directed the appellant’s reassignment to a position in the Southern Service, but this action was withdrawn to allow the agency to fully consider the appellant’s response to the findings of the ROI, which had not yet been submitted, and “to consider how to most effectively manage the FMCSA Montana Division.” After the appellant submitted her response to the ROI, the agency directed the appellant’s reassignment to a nonsupervisory position in Illinois.

After holding a hearing, the administrative judge issued an initial decision finding that: The appellant established that her disclosure was protected under the WPA; the disclosure was a contributing factor in the agency’s decision to reassign her; but that the agency proved by clear and convincing evidence that it would have reassigned her in the absence of the disclosure.

Holdings: The Board denied the appellant’s PFR, reopened the appeal on its own motion, and affirmed the initial decision as modified, still denying the appellant’s request for corrective action:

1. In determining whether reprisal for whistleblowing occurred, an inquiry must be made into whether the appellant made a disclosure protected under 5 U.S.C.  2302(b)(8), and whether the disclosure was a contributing factor in the agency’s personnel action. If the first two issues are resolved in affirmative, corrective action must be provided unless the agency can prove by clear and convincing evidence that it would have taken the same action in the absence of the protected disclosure. This last inquiry is the only one in issue in this case.

2. In determining whether an agency has shown by clear and convincing evidence that it would have taken the same action in the absence of whistleblowing, the Board considers the following factors: (1) the strength of the agency’s evidence in support of its action; (2) the existence and strength of any motive to retaliate on the part of the agency officials who were involved in the decision; and (3) any evidence that the agency takes similar actions against employees who are not whistleblowers but who are otherwise similarly situated. The Board does not view these factors as discrete elements; it instead weighs the factors together to determine whether the evidence is clear and convincing as a whole.

3. The agency had a strong basis for directing the appellant’s reassignment.

a. The only evidence before the Board regarding the strength of the agency’s evidence at the time it directed the appellant’s reassignment is evidence pertaining to the ROI and the deciding official’s (Hartman) conversations with Ms. McMurray, the appellant’s 4th-level supervisor.

b. Mr. Hartman did not review the ROI itself, but rather a summary of that document similar to the OIG’s 13-page Legal Analysis of the ROI, which found that the appellant misused her position by using government property and official time to assist a private company in soliciting business and implying government sanction of its services, and that the appellant’s friendship with a principal of a regulated motor carrier created the appearance of a lack of impartiality regarding the appellant’s interactions with that motor carrier.

c. The appellant’s contention that she did not violate any of the ethics regulations cited by the OIG does not control this issue. The relevant inquiry is not whether the appellant committed any actual misconduct, but whether the agency had strong evidence to support its personnel action. An agency may direct an employee’s reassignment as long as the reassignment is based on legitimate management reasons. The record shows that Mr. Hartman’s decision was influenced less by the OIG’s findings of ethical violations than it was by the practical effects that the appellant’s conduct would have on her ability to perform her duties.

d. The evidence as a whole supports the administrative judge’s finding that the appellant’s friendship with the principal of a regulated motor carrier was problematic. The very existence of this friendship raised suspicions that could not be eliminated by even the most scrupulous precautions, and constituted a legitimate management reason for Mr. Hartman to direct the appellant’s reassignment to a position where that friendship would no longer raise doubts about the appellant’s impartiality.

e. Under the circumstances of this case, the appellant’s damaged relationship with the employees in the Montana Division also constituted a legitimate management reason for the agency to reassign her.

4. While there was some motive to retaliate on the part of the relevant agency officials, the evidence of such motive does not outweigh the strength of the evidence in support of the agency’s reassignment decision.

a. The relevant agency officials were Mr. Hartman and 3 other officials whom he consulted about the reassignment.

b. The appellant’s whistleblowing complaint was directed primarily toward the conduct of Mr. Fleming, one of the officials whom Mr. Hartman consulted, and more generically toward the leadership of the Western Service Center. Mr. Fleming thus had a strong motive to retaliate against the appellant.

c. Because of Mr. Hartman’s position as the Associate Administrator of Field Operations, the allegations in the appellant’s whistleblowing complaint would reflect poorly on him in that capacity, and the disclosure therefore created a retaliatory motive for him.

d. The evidence does not support a conclusion that the other 2 officials consulted by Mr. Hartman had a motive to retaliate against the appellant.

e. Mr. Hartman and Ms. McMurray, the 2 officials most heavily involved in the reassignment decision, lacked a strong motive to retaliate.

5. The appellant failed to show that alleged comparison employees were similarly situated, inasmuch as they lacked close social relationships with the principals of regulated carriers, and there is no evidence that their working relationships with their home offices were severely damaged.

Appellant: Steven L. Frank

Agency: Office of Personnel Management

Decision Number: 2010 MSPB 9

Docket Number: SF-0831-07-0721-B-1

Issuance Date: January 12, 2010

Action Type: Retirement/Benefit Matter

Jurisdiction – Rescission of Personnel Action or Decision
Mootness

The appellant petitioned for review of a remand initial decision that dismissed his appeal as moot. In the underlying appeal, the Board vacated the initial decision, which had affirmed OPM’s denial of the appellant’s request for a retirement benefit, for a proceeding to determine if application of the procedures set forth in French v. Office of Personnel Management,810 F.2d 1118 (Fed. Cir. 1987), was appropriate. 111 M.S.P.R. 206 (2009). On remand, OPM filed a motion to dismiss, stating that it was rescinding its final decision and granting the requested benefit to the appellant. The AJ ordered the appellant to show why the appeal should not be dismissed “for lack of jurisdiction and/or mootness.” The administrative judge granted OPM’s motion over the appellant’s objection, dismissing the appeal as moot.

Holdings: The Board denied the appellant’s PFR, reopened the appeal on its own motion, vacated the initial decision, and dismissed the appeal for lack of jurisdiction:

1. If OPM completely rescinds a reconsideration decision, such rescission divests the Board of jurisdiction over the appeal in which that reconsideration decision is at issue, and the appeal must be dismissed.

2. An appeal may not be dismissed as moot until the agency has submitted acceptable evidence that it has actually afforded the appellant all relief to which he would be entitled if the appeal had been adjudicated and he had prevailed.

3. Because the record does not reflect that the appellant has actually received all the relief to which he would be entitled if the appeal had been adjudicated and had prevailed, it was error to dismiss the appeal as moot. Nevertheless, the appeal must be dismissed for lack of jurisdiction because the reconsideration decision has been rescinded. Should the appellant be dissatisfied with any subsequent OPM decision regarding his benefits, he may request that OPM reconsider its decision and appeal OPM’s final decision to the Board.

Appellant: Kerrie A. Hosozawa

Agency: Department of Veterans Affairs

Decision Number: 2010 MSPB 10

Docket Number: SF-0752-09-0367-I-1

Issuance Date: January 12, 2010

Appeal Type: Adverse Action by Agency

Action Type: Removal

Jurisdiction
- Resignation/Retirement/Separation

The appellant petitioned for review of an initial decision that dismissed her appeal of an allegedly involuntary resignation for lack of jurisdiction. The appellant, a GS‑9 Information Technology Specialist, received treatment for Panic Disorder and Agoraphobia, and was frequently absent from work as a consequence of her conditions. The agency issued a decision removing the appellant from her position based on a charge of absence without leave. The appellant resigned 1 day prior to the effective date of the removal. On appeal to the Board, she alleged that her resignation was involuntary, arguing, among other things, that the agency failed accommodate her medical condition. Without holding a hearing the administrative judge dismissed the appeal for lack of jurisdiction on the grounds that the appellant failed to nonfrivolously allege that her resignation was involuntary.

Holdings: The Board granted the appellant’s PFR, vacated the initial decision, found that the appellant had made a nonfrivolous allegation of jurisdiction, and remanded the appeal to the regional office for a hearing on whether the appellant’s resignation was involuntary:

1. Although an employee-initiated action such as a retirement or resignation is presumed to be voluntary, and thus outside the Board’s jurisdiction, an involuntary resignation is equivalent to a forced removal and therefore within the Board’s jurisdiction. Once an appellant presents nonfrivolous allegations of Board jurisdiction, she is entitled to a hearing at which she must prove jurisdiction by a preponderance of the evidence.

2. Here, the appellant adequately alleged that her resignation was involuntary because the agency denied her request for a reasonable accommodation (telecommuting) that, according to her doctor, would have permitted her to continue to work full-time despite her mental conditions. She is therefore entitled to a hearing.

Appellant: Fareheda L. Malone

Agency: Office of Personnel Management

Decision Number: 2010 MSPB 11

Docket Number: DE-0845-09-0213-I-1

Issuance Date: January 12, 2010

Appeal Type: FERS - Collection of Overpayment

Action Type: Retirement/Benefit Matter

Retirement
- Annuity Overpayment – Waiver/Adjustment

The appellant petitioned for review of an initial decision that affirmed as modified an OPM reconsideration decision. The AJ found that the appellant had been overpaid $35,792 in disability retirement benefits, that the appellant was not entitled to a waiver of recovery of the overpayment based on financial hardship because of the set-aside rule, but that reduction in the monthly repayment amount was warranted.

Holdings: The Board granted the appellant’s PFR, affirmed the administrative judge’s determination that the appellant is not entitled to a waiver of recovery of the overpayment, vacated the administrative judge’s finding with regard to the amount of the monthly repayment schedule, and remanded the case to the regional office for further adjudication:

1. The Board affirmed the administrative judge’s findings regarding the overpayment amount and that the appellant was not entitled to a waiver of repayment.

2. An annuitant who is ineligible for a waiver may be entitled to an adjustment of the recovery schedule is she shows that it would cause her financial hardship to make payment at the rate scheduled.

3. On PFR, the appellant submitted evidence that, subsequent to the initial decision, her rent increased from $550 to $810. This could justify an adjustment to the repayment schedule, as the appellant’s monthly expenses would now exceed her monthly income. OPM disputes whether the rent increase was necessary and involuntary.

4. Based on the existing record, the Board was unable to determine whether the appellant’s new rent is reasonable or constitutes an extravagance or luxury. A remand is therefore necessary.

5. The administrative judge properly excluded the appellant’s expenses incurred in support of her adult children from her determination of the appellant’s ordinary and necessary expenses.

6. Speculative estimates of potential future medical expenditures should not be included in the appellant’s ordinary and necessary expenses.

Appellant: George Johnson

Agency: Office of Personnel Management

Decision Number: 2010 MSPB 12

Docket Number: SF-0831-09-0677-I-1

Issuance Date: January 13, 2010

Action Type: Retirement/Benefit Matter

Retirement
- Restoration to Earning Capacity

The appellant petitioned for review of an initial decision that dismissed his appeal for lack of jurisdiction on the ground that OPM had not issued a final or reconsideration decision concerning his retirement interests or benefits. In March 2009, OPM notified the appellant that, according to its records, his income for 2007 exceed the earnings limitation for his continued entitlement to disability retirement benefits. In his response, the appellant disputed OPM’s determination, claiming that he was not notified of the earnings limitation and that OPM improperly excluded a locality pay increase from its calculation. He also requested that OPM waive any overpayment resulting from its determination that he had exceeded his earnings limitation, and that OPM change his disability retirement to a regular discontinued service retirement. By letter dated April 24, 2009, OPM informed the appellant that it had determined that he had been restored to earning capacity and that his disability benefits would be terminated effective June 30, 2008. By letter dated May 6, 2009, the appellant requested information about his appeal rights and noted that OPM did not address his request for waiver of any overpayment or his request to transfer to a regular retirement. The record contains no response from OPM to this letter, and the appellant filed an appeal with the Board on June 6, 2009. In dismissing the appeal for lack of jurisdiction, the administrative judge, without referring to OPM’s April 24 letter, found that OPM had not issued a final decision on the appellant’s eligibility for benefits after June 30, 2008.

Holdings: The Board granted the appellant’s PFR, affirmed the administrative judge’s finding that the Board lacks jurisdiction over the appellant’s claim of entitlement to waiver of recovery of an annuity overpayment, reversed his finding that the Board lacks jurisdiction over OPM’s decision to terminate the appellant’s retirement annuity, and remanded the case to the regional office for further adjudication:

1. The Board has jurisdiction to adjudicate an individual’s rights and interests under the Civil Service Retirement System only after OPM has rendered a reconsideration decision on the issue in question. Nevertheless, the Board may take jurisdiction in the absence of an OPM reconsideration decision where the appellant has made repeated requests for such a decision and the evidence indicates that OPM does not intend to issue a reconsideration decision.

2. OPM in effect has issued an appealable final decision concerning the termination of the appellant’s retirement annuity and his request to convert that annuity to a discontinued service annuity.

a. OPM’s April 24 letter informed the appellant of its decision to terminate his retirement annuity retroactively. This letter does not include any information about procedures for requesting review of that decision, and did not address or even mention the appellant’s claims that it had improperly calculated the rate of pay for the position from which he retired. It also did not address the appellant’s argument that, if his disability benefits could not be continued, his annuity should be continued under provisions authorizing discontinued service annuities.

b. The Board found no support for the administrative judge’s finding that OPM had stated that it intends to issue a reconsideration decision at some future time. OPM’s response to the appellant’s PFR similarly makes no reference to any intention to take further action in this case.

c. Under these circumstances, the Board found that OPM’s April 24 letter was tantamount to an appealable reconsideration decision, and that the Board therefore has jurisdiction to adjudicate his appeal of OPM’s decision to terminate his annuity.

3. The Board agreed that OPM has not issued a final or reconsideration decision with respect to any alleged overpayment.

Appellant: Prudencio V. Robles, Jr.

Agency: Office of Personnel Management

Decision Number: 2010 MSPB 13

Docket Number: SE-0831-01-0273-I-1

Issuance Date: January 13, 2010

Action Type: Retirement/Benefit Matter

Timeliness – PFR

In a petition for review filed more than 8 years after the deadline for timely filing, the appellant sought review of a an initial decision that affirmed OPM’s determination that he is not entitled to a CSRS annuity.

Holdings: The Board dismissed the appellant’s PFR as untimely filed without good cause shown for the delay in filing.

Appellant: Brendan A. Daniel

Agency: Office of Personnel Management

Decision Number: 2010 MSPB 14

Docket Number: DA-0841-09-0711-I-1

Issuance Date: January 13, 2010

Action Type: Retirement/Benefit Matter

Jurisdiction
New Evidence

The appellant petitioned for review of an initial decision that dismissed his appeal for lack of jurisdiction. In September 2009, the appellant filed an appeal regarding the amount of his disability retirement annuity. OPM moved to dismiss the appeal on the grounds that it not issued a final or reconsideration decision in the case. When the appellant did not respond to that motion, or to the administrative judge’s show‑cause order, the administrative judge issued a decision dismissing the appeal for lack of jurisdiction. On PFR, the appellant asserts that OPM issued a final decision in his case on November 3, 2009, after the issuance of the initial decision. OPM has confirmed that is has issued a final decision.

Holdings: Although the initial decision was correct when it was issued, there is new and material evidence showing that the Board now has jurisdiction to consider the appeal. Accordingly, the proper action is to reopen the appeal and remand it to the regional office for adjudication.

Appellant: Aretha Wright

Agency: Department of the Treasury

Decision Number: 2010 MSPB 15

Docket Number: CH-315H-09-0555-I-1

Issuance Date: January 14, 2010

Action Type: Probationary Termination

Timeliness – PFR

The appellant petitioned for review of an initial decision dismissed her appeal of her termination during probation for lack of jurisdiction. The PFR was filed 11 days after the deadline for timely filing. The appellant has provided no explanation for filing after the deadline, and did not respond to the notice of the Clerk of the Board concerning timeliness.

Holdings: The Board dismissed the appellant’s PFR as untimely filed without good cause shown for the delay in filing.