NOTE: This disposition is nonprecedential.

United States Court of Appeals 

for the Federal Circuit 

__________________________ 

JOHN L. CUMMINGS, 

Petitioner, 

v. 

OFFICE OF PERSONNEL MANAGEMENT, 

Respondent. 

__________________________ 

2012-3202 

__________________________ 

Petition for review of the Merit Systems Protection 

Board in case no. DA0841120100-I-1. 

___________________________ 

Decided: January 10, 2013 

___________________________ 

JOHN L. CUMMINGS, of Missouri City, Texas, pro se. 

KATY M. BARTELMA, Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department 

of Justice, of Washington, DC, for respondent. With her 

on the brief were STUART F. DELERY, Acting Assistant 

Attorney General, JEANNE E. DAVIDSON, Director, and 

DEBORAH A. BYNUM, Assistant Director. 

__________________________ 
JOHN CUMMINGS v. OPM 2

Before MOORE, BRYSON, and O’MALLEY, Circuit Judges. 

PER CURIAM. 

John L. Cummings (“Mr. Cummings”) appeals the decision of the Merit Systems Protection Board (“MSPB”) 

regarding the computation of his years of Federal civilian 

service in connection with his Federal Employees’ Retirement System (“FERS”) annuity. Because the MSPB 

effectively remanded Mr. Cummings’ case to OPM and 

there is no “final order or decision” pursuant to 5 U.S.C. 

§ 7703, we do not have jurisdiction. 

I. 

Mr. Cummings, a former Federal civil service employee, retired from the United States Postal Service 

(“USPS”) on disability retirement effective April 9, 2000. 

Prior to his time at USPS, he worked at the Veterans 

Administration (“VA”) from November 8, 1987 to February 7, 1988. Mr. Cummings also indicated on his retirement application, a Standard Form (SF) 3107, that he had 

been in active military service with the United States 

Marine Corps from January 1968 to June 1969. SF-3107 

asks the veteran whether they have paid a “deposit” for 

any military service that occurred on or after January 1, 

1957. Mr. Cummings indicated that he had not. The 

form also states that the veteran must pay this requisite 

deposit prior to retirement from federal service to have 

his or her military service credited for retirement annuity 

purposes. 

On September 24, 2001, OPM notified Mr. Cummings 

that, to receive credit for his service at the VA, he must 

pay a $113.00 deposit. The OPM notice also stated that 

Mr. Cummings had not paid the deposit for his military 

service; therefore, his service in the United States Marines had not been credited. Mr. Cummings paid the 
3 JOHN CUMMINGS v. OPM

$113.00 deposit for his VA service in October 2001, and 

requested that he be credited “the remainder of my pay 

that[’s] due.” At some point in time, Mr. Cummings 

received an annuity notice that estimated he had accrued 

16 years, 1 month, and 23 days of federal civilian service. 

Mr. Cummings contacted OPM in November 2010 

contending that his retirement annuity failed to account 

for the two years he served in the military and asked that 

it be revised to reflect 18 years federal service, rather 

than the 16 plus years originally estimated. OPM issued 

its initial decision on June 16, 2011, concluding Mr. 

Cummings had accrued civilian federal service of 16 

years, 1 month, and 23 days, as estimated, and that his 

record did not reflect that he had paid the deposit to 

receive credit for his military service. Mr. Cummings 

requested reconsideration, prompting OPM to recalculate 

his service and determine that Mr. Cummings’ service 

estimate indeed was incorrect: he had only accrued 13 

years, 4 months, and 2 days of federal civilian service. 

OPM affirmed the initial decision that Mr. Cummings’ 

military service was not creditable because he had failed 

to pay the deposit. Mr. Cummings then filed an appeal 

with the MSPB. 

The Administrative Law Judge (“ALJ”) held, in her 

initial decision, that Mr. Cummings had failed to carry 

his evidentiary burden demonstrating that he had 16 

years, 1 month, and 23 days federal civilian service. The 

ALJ further found that OPM had provided evidence that 

Mr. Cummings’ service included work at the VA from 

June 14, 1980 to June 18, 1981 and November 8, 1987 to 

May 14, 1990, and work at USPS from May 19, 1990 to 

April 8, 2000, totaling only 13 years, 4 months, and 2 days 

of federal civilian service. The ALJ reviewed the evidence 

and also determined that Mr. Cummings’ retirement 

application and documentation from both the VA and 
JOHN CUMMINGS v. OPM 4

USPS supported OPM’s stated service history, with a 

minor unexplained discrepancy crediting Mr. Cummings 

for an extra month of service. As for the 16 year annuity 

estimate Mr. Cummings’ had been provided, the ALJ 

found that it was just that, an estimate. It is unclear 

when and why he was provided the improper estimate, 

but Mr. Cummings proffered no employment records 

indicating that it was accurate. Based on the evidence, 

the ALJ determined that Mr. Cummings did not carry his 

burden to establish that he was due 16 years, 1 month, 

and 23 days of federal civilian service, rather than the 

lesser amount, and affirmed OPM’s decision. 

The ALJ recognized, however, that a FERS annuitant 

who retires after September 7, 1982 is entitled to credit 

for any post-1956 military service, so long as the annuitant deposits, prior to retirement, an amount equal to 3% 

of his or her basic pay for each period of military service 

after December 1956 to his or her employing agency. The 

ALJ found that Mr. Cummings was not properly apprised 

of the consequences of failing to make the post-1956 

military service deposit. The ALJ held, consistent with 

precedent from the MSPB and this court, that Mr. Cummings’ failure to make the deposit before his separation 

was due to an administrative error of his employing 

agency. She reversed the agency’s reconsideration decision regarding Mr. Cummings’ military service and ordered OPM to provide Mr. Cummings with proper 

information and time to submit the deposit. 

Neither Mr. Cummings, nor OPM, requested Board 

review of the ALJ’s initial decision; it thus, became the 

final decision of the MSPB. Mr. Cummings, appearing 

pro se, filed a petition for review in this court on September 7, 2012. Mr. Cummings simply requests that this 

court “[c]orrect my retirement # of years ‘senority.’” 
5 JOHN CUMMINGS v. OPM

II. 

Our scope of review of MSPB decisions is limited by 

statute. We must affirm an MSPB decision unless it was 

“(1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (2) obtained without 

procedures required by law, rule, or regulation having 

been followed; or (3) unsupported by substantial evidence.” 5 U.S.C. § 7703(c) (2000); Cheeseman v. Office of 

Pers. Mgmt., 791 F.2d 138, 140 (Fed. Cir. 1986). Substantial evidence is “such relevant evidence as a reasonable 

mind might accept as adequate to support a conclusion.” 

Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938). 

We have a threshold obligation to determine whether 

we have jurisdiction to hear an appeal. Bender v. Williamsport Area Sch. Dist., 475 U.S. 534, 541 (1986). The 

final judgment rule applies to appeals from the MSPB. 

Weed v. Soc. Sec. Admin., 571 F.3d 1359, 1361 (Fed. Cir. 

2009); 28 U.S.C. § 1295(a)(9) (granting this court jurisdiction over “an appeal from a final order or a final decision 

of the [MSPB]” pursuant to 5 U.S.C. § 7703.). A “final 

order” for jurisdictional purposes is an order or decision 

that disposes of an entire action. Haines v. MSPB, 44 

F.3d 998, 1000 (Fed. Cir. 1995) (citing 5 C.F.R. 

§ 1201.113). 

The MSPB’s decision in Mr. Cummings’ case is not a 

“final order.” The MSPB did determine that Mr. Cummings failed to carry his burden to demonstrate that he 

was entitled to the 16 years of federal civilian service. 

But the inquiry did not end there. The Board also reversed OPM’s decision regarding the credit Mr. Cummings is due for his post-1956 active duty military service 

under FERS. The Board found that Mr. Cummings’ 

failure to pay the deposit was a result of an administrative error, and ordered OPM to set a deadline and inform 
JOHN CUMMINGS v. OPM 6

Mr. Cummings in writing of how to make a deposit to his 

former employing agency. While the MSPB’s decision 

does not explicitly remand the case to OPM, in substance, 

it acts as a remand for further adjudication regarding Mr. 

Cummings’ total years of service. 

OPM contends, and we agree, that Mr. Cummings 

now has the opportunity to pay the deposit, enabling him 

to receive credit for this military service. Should he 

choose to do so, his military service would impact his 

annuity computation. In short, the MSPB’s “remand” 

means that OPM proceedings are continuing, and OPM is 

likely to issue another decision regarding Mr. Cummings’ 

annuity once those proceedings are complete. Neither 

party, moreover, has apprised this court whether the 

proceedings and annuity computation have been completed by OPM. Given that proceedings continue in OPM, 

the MSPB’s decision was not “final” because it failed to 

dispose of the “entire action.” Haines, 44 F.3d at 1000. 

We therefore lack jurisdiction over Mr. Cummings’ appeal 

at this time. 

III. 

Based on the foregoing reasons, we dismiss the appeal 

for lack of jurisdiction. 

DISMISSED