Clifford S. Nasdahl v. Office of Personnel Management
Background
- Appellant Clifford S. Nasdahl sought an interest waiver from OPM for interest accruing on a service credit deposit he alleges resulted from placement in the wrong retirement system.
- He appealed to the MSPB after receiving no final adverse decision from OPM in the record before the Board.
- OPM informed the Board its file did not contain a final appealable decision and represented that any FERCCA-related discretionary decision under 5 C.F.R. part 839, subpart L would not be appealable to the Board.
- The administrative judge dismissed the MSPB appeal for lack of jurisdiction, reasoning OPM had not issued a final decision and that some FERCCA decisions are unreviewable.
- On review, the Board found that, regardless of whether OPM had issued a final decision, it lacked jurisdiction because statutes and FERCCA regulations do not authorize OPM to waive interest and OPM’s subpart L discretionary decisions are final and unreviewable.
- The Board denied the petition for review and advised Nasdahl of his right to seek review in the U.S. Court of Appeals for the Federal Circuit.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| MSPB jurisdiction over appeal absent a final OPM decision | Nasdahl sought MSPB review of OPM’s handling (no final decision received) | OPM said no final decision in file and certain FERCCA decisions are not appealable | Board lacks jurisdiction without a final OPM decision and FERCCA subpart L decisions are unreviewable by MSPB |
| Authority to waive interest on service credit deposits | Nasdahl requested waiver of interest he accrued | OPM and statutes/regulations assert no authority to waive required interest | There is statutory/regulatory no authority for OPM to waive interest on service credit deposits |
| Reviewability of OPM FERCCA discretionary relief decisions | Nasdahl sought relief under FERCCA | OPM contends discretionary subpart L decisions are final and not subject to administrative or judicial review | Decisions under 5 C.F.R. part 839, subpart L are within OPM’s sole discretion and not appealable to the Board |
Key Cases Cited
- Autrey v. Office of Personnel Management, 27 M.S.P.R. 130 (M.S.P.B. 1985) (Board lacks jurisdiction over retirement matters absent an OPM final decision)
- Cheeseman v. Office of Personnel Management, 791 F.2d 138 (Fed. Cir. 1986) (plaintiff bears burden of proof in retirement benefit appeals)
- Carew v. Office of Personnel Management, 878 F.2d 366 (Fed. Cir. 1989) (pure legal questions may be decided without a hearing)
- Jezouit v. Office of Personnel Management, 97 M.S.P.R. 48 (M.S.P.B. 2004) (appeal may be decided on the record for legal issues)
- Pinat v. Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991) (courts normally will not waive the statutory deadline to seek review in the Federal Circuit)