Nikolay Tikhonov v. Office of Personnel Management
Background
- OPM denied Nikolay Tikhonov’s FERS annuity application in a January 5, 2016 final decision, finding no creditable Federal service.
- Tikhonov appealed to the Merit Systems Protection Board (MSPB).
- OPM filed a motion stating it had completely rescinded the January 5 final decision and would issue a new decision.
- The administrative judge dismissed the appeal for lack of jurisdiction without a hearing, concluding OPM’s complete rescission divested the Board of jurisdiction.
- Tikhonov petitioned for review, arguing the Board has jurisdiction (harmful error), that he was denied a hearing, that OPM erred on the merits, and that OPM failed to provide a complete agency file.
- The Board denied review and affirmed dismissal, finding OPM’s unrebutted rescission deprived the Board of jurisdiction and any procedural deficiencies were immaterial to jurisdiction.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does the MSPB have jurisdiction over OPM’s denial of Tikhonov’s FERS application after OPM rescinded its final decision? | Tikhonov contends the Board has jurisdiction based on harmful error and seeks a hearing. | OPM argues it completely rescinded the final decision; rescission divests the Board of jurisdiction. | Held: No jurisdiction — OPM’s complete rescission divests the Board, so appeal dismissed. |
| Was Tikhonov entitled to a hearing on jurisdiction or the merits? | He asserted denial of requested hearing and sought adjudication. | OPM argued rescission mooted Board jurisdiction, obviating hearing. | Held: No hearing — because rescission removes jurisdiction, he’s not entitled to a jurisdictional or merits hearing. |
| Did OPM err on the merits in finding no creditable Federal service? | Tikhonov argued on the merits that he had creditable service and should receive benefits. | OPM reserved merits by rescinding and promising a new decision; jurisdictional issue controls. | Held: Merits not reached — merits arguments are irrelevant where Board lacks jurisdiction. |
| Did OPM’s alleged failure to submit a complete file affect the outcome? | Tikhonov alleged OPM failed to produce documents he submitted to support his application. | OPM submitted sufficient evidence of rescission; any missing documentary evidence is immaterial to jurisdiction. | Held: Procedural noncompliance, if any, did not affect outcome and is not grounds for review. |
Key Cases Cited
- Maddox v. Merit Systems Protection Board, 759 F.2d 9 (Fed. Cir. 1985) (Board’s jurisdiction is limited to matters conferred by law, rule, or regulation)
- Garcia v. Department of Homeland Security, 437 F.3d 1322 (Fed. Cir. 2006) (appellant must meet jurisdictional burden to obtain hearing on merits)
- Smith v. Office of Personnel Management, 113 M.S.P.R. 259 (2010) (OPM’s complete rescission of a decision divests the MSPB of jurisdiction)
- Boughton v. Department of Agriculture, 94 M.S.P.R. 347 (2003) (importance of notice regarding jurisdictional requirements)
- Karapinka v. Department of Energy, 6 M.S.P.R. 124 (1981) (administrative procedural error is harmless unless it affected substantive rights)