BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, Member

FINAL ORDER

The appellant has filed a petition for review of the initial decision, which affirmed the final decision of the Office of Personnel Management (OPM) denying her application for a deferred annuity under the Federal Employees’ Retirement System (FERS). On petition for review, the appellant argues the administrative judge (1) erred in denying her request for an extension of time to supplement the record; (2) miscalculated the length of her employment with the Library of Congress and improperly discounted certain Federal and District of Columbia service; and (3) erred in finding that she received a refund of the majority of her retirement contributions. Petition for Review (PFR) File, Tab 1 at 2-4. Generally, we grant petitions such as this one only in the following circumstances: the initial decision contains erroneous findings of material fact; the initial decision is based on an erroneous interpretation of statute or regulation or the erroneous application of the law to the facts of the case; the administrative 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. 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, 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).²

The appellant appears to allege on review that the administrative judge erred in denying her motion for an extension of time to supplement the record. PFR File, Tab 1 at 4. We find no abuse of discretion in the administrative judge‘s ruling in the initial decision denying the appellant‘s motion for additional time. Initial Appeal File (IAF), Tab 17, Initial Decision (ID) at 5. During the telephonic hearing, the appellant indicated that she had additional documentary evidence, i.e., W-2 forms, which, she alleged, substantiated that OPM had miscalculated the length of her employment with the Library of Congress. IAF, Tab 14, Hearing Recording at 58:24 to 58:50 (testimony of the appellant). Following the hearing, the administrative judge provided the appellant an opportunity to supplement the record with this evidence. IAF, Tab 15 at 1. In so doing, he explained that the “submissions must be received . . . on or before July 25, 2019.” Id. (Emphasis added). On July 24, 2019, the appellant mailed a motion via U.S. mail requesting an extension of time, until August 1, 2019, to provide the documents. IAF, Tab 16 at 1-3. However, the appellant never supplemented the record before the administrative judge. She also has not submitted any W-2 forms on review.

We agree with the administrative judge that the appellant failed to meet both the deadline imposed by the administrative judge and her own requested deadline of August 1, 2019. ID at 5. Moreover, the appellant‘s motion was also procedurally deficient insofar as she failed to state whether OPM objected to her request. IAF, Tab 16 at 1; see 5 C.F.R. § 1201.55(a). Thus, we find any error in the administrative judge‘s failure to rule on the appellant‘s motion prior to issuing the initial decision is harmless. See Johnson v. Department of Justice, 104 M.S.P.R. 624, ¶ 30 (2007) (determining that an administrative judge‘s failure to rule on a motion to compel was harmless because the appellant‘s motion did not comply with the Board‘s regulatory requirements); White v. U.S. Postal Service, 64 M.S.P.R. 261, 267-68 (1994) (declining to find an administrative judge‘s failure to rule on an agency‘s motion for an extension was harmful because the appellant failed to show any adverse effect on her substantive rights).

NOTICE OF APPEAL RIGHTS³

You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum.

Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information.

(1) Judicial review in general. As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(A).

If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address:

U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439

Additional information about the U.S. Court of Appeals for the Federal Circuit 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, 10, and 11.

If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case.

(2) Judicial or EEOC review of cases involving a claim of discrimination. This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision—including a disposition of your discrimination claims—by filing a civil action with an appropriate U.S. district court (not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems Protection Board, 582 U.S. 420 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court-appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a.

Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.

Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues. 5 U.S.C. § 7702(b)(1). You must file any such request with the EEOC‘s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision.

If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is:

Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013

If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to:

Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507

(3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012. This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board‘s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.⁴ The court of appeals must receive your petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(B).

If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address:

U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439

Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.

Gina K. Grippando

FOR THE BOARD:

Gina K. Grippando

Clerk of the Board

Washington, D.C.

Notes

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).

Although the scope of OPM‘s final decision pertained to the appellant‘s entitlement to a deferred annuity under FERS, the initial decision cites statutory provisions pertaining to annuities under the Civil Service Retirement System. Initial Appeal File, Tab 12 at 29-31, Tab 17, Initial Decision at 3, 5. However, because the relevant statutory provisions under either system are nearly identical, compare, e.g., 5 U.S.C. § 8338(a), with 5 U.S.C. § 8413(a), these misstatements are harmless to the outcome of this appeal, see (finding that an adjudicatory error that is not prejudicial to a party‘s substantive rights provides no basis for reversal of an initial decision).

Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter.

The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195, 132 Stat. 1510.

Read the detailed case summary

BEFORE

FINAL ORDER

NOTICE OF APPEAL RIGHTS3

Notes

NOTICE OF APPEAL RIGHTS³