Tikhonov v. Merit Systems Protection Board
688 F. App'x 927
| Fed. Cir. | 2017Background
- Tikhonov applied to OPM on Sept. 1, 2015 for a deferred FERS retirement annuity; OPM denied the application by letter dated Jan. 5, 2016 and labeled that letter a final decision.
- Tikhonov appealed to the Merit Systems Protection Board (MSPB) on Feb. 8, 2016.
- On Apr. 11, 2016 OPM moved to dismiss, stating it had rescinded its Jan. 5 final decision and intended to issue a new, appealable reconsideration decision.
- An administrative judge dismissed Tikhonov’s MSPB appeal for lack of jurisdiction; the MSPB affirmed on review and adopted the initial decision as final.
- The MSPB concluded OPM’s complete rescission of its final decision divested the Board of jurisdiction; the Board therefore did not reach the merits but found any procedural errors (hearing, missing documents) harmless or irrelevant to jurisdiction.
- Tikhonov timely sought review in this court; the Federal Circuit affirmed the MSPB dismissal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether MSPB had jurisdiction after OPM rescinded a final decision | Tikhonov argued MSPB should decide the appeal despite rescission; he also challenged merits | OPM argued rescission of its final decision (with intent to issue a new reconsideration) divests MSPB of jurisdiction | Court held rescission divested MSPB of jurisdiction; dismissal affirmed |
| Whether AJ erred by denying a merits hearing | Tikhonov contended he was entitled to a hearing on the merits | OPM/Board said jurisdictional defect made a merits hearing unnecessary | Court held no error because MSPB lacked jurisdiction; hearing issue was premature |
| Whether OPM failed to submit required agency-file documents | Tikhonov argued missing documents (e.g., pay stubs) prejudiced him | OPM/Board treated any omission as relating only to merits, not jurisdiction | Court held any alleged omission was harmless with respect to jurisdiction; merits not addressed |
| Whether the AJ dismissed the appeal as moot (versus for lack of jurisdiction) | Tikhonov claimed the AJ dismissed as moot | Board/Opposition clarified dismissal was for lack of jurisdiction due to rescission | Court confirmed the AJ dismissed for lack of jurisdiction, not mootness |
Key Cases Cited
- Ellison v. Merit Sys. Prot. Bd., 7 F.3d 1031 (Fed. Cir. 1993) (standard of review for MSPB decisions)
- Forest v. Merit Sys. Prot. Bd., 47 F.3d 409 (Fed. Cir. 1995) (jurisdictional rulings reviewed de novo)
- Nebblett v. Office of Pers. Mgmt., 237 F.3d 1353 (Fed. Cir. 2001) (OPM rescission of final decision divests MSPB jurisdiction)
- Keira v. Merit Sys. Prot. Bd., [citation="396 F. App'x 703"] (Fed. Cir. 2010) (affirming dismissal where OPM rescinded its final decision)
- Havrilla v. Merit Sys. Prot. Bd., [citation="582 F. App'x 881"] (Fed. Cir. 2014) (defining when OPM determinations constitute final decisions)
- Frank v. Office of Pers. Mgmt., 113 M.S.P.R. 164 (2010) (agency rescission effect on MSPB jurisdiction)
- McNeese v. Office of Pers. Mgmt., 61 M.S.P.R. 70 (1994) (MSPB will assert jurisdiction when OPM refuses or improperly fails to issue a final decision)