UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

PAULA K. LUA,

Appellant,

v.

OFFICE OF PERSONNEL 

MANAGEMENT,

Agency.

DOCKET NUMBER

SF-0842-14-0650-I-1

DATE: September 15, 2014

THIS FINAL ORDER IS NONPRECEDENTIAL*

Paula K. Lua, Los Angeles, California, pro se.

Roxann Johnson, Washington, D.C., for the agency.

BEFORE

Susan Tsui Grundmann, Chairman

Anne M. Wagner, Vice Chairman

Mark A. Robbins, Member

FINAL ORDER

¶1 The appellant has filed a petition for review of the initial decision, which 

dismissed her appeal for lack of jurisdiction. Generally, we grant petitions such 

as this one only when: the initial decision contains erroneous findings of material 

fact; the initial decision is based on an erroneous interpretation of statute or 

 * A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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).
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regulation or the erroneous application of the law to the facts of the case; the 

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. See 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, and based on the following points and authorities, 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). 

BACKGROUND

¶2 The appellant received a March 30, 2014 notice from the Office of 

Personnel Management (OPM) of an adjustment in her Federal Employees’

Retirement System (FERS) disability annuity, pursuant to the legal requirement to 

adjust the annuity when a FERS disability retiree reaches the age of 62. Initial 

Appeal File (IAF), Tab 1 at 8. The appellant submitted a “request for correction”

to OPM concerning the recalculation of benefits and a potentially related Social 

Security overpayment issue. Id. at 7. Subsequently, she filed the initial appeal 

alleging that OPM had violated her due process rights in recomputing her annuity 

benefits and indicating that she had not received a final or reconsideration 

decision from OPM. Id. at 3-4. In a subsequent pleading, the appellant alleged 

that OPM did not address her challenge regarding the monthly annuity payment 

adjustment and stated that she had received a letter from OPM informing her that 

the “request for more information was sent to the Reconsideration and Appeals 

Unit.” IAF, Tab 3. The appellant included a copy of OPM’s letter dated June 24, 

2014. Id. at 4.
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¶3 The administrative judge issued an order to show cause why the Board had 

jurisdiction over the appeal, informing the appellant that the Board’s jurisdiction 

over FERS retirement matters does not vest until OPM has issued a final decision. 

IAF, Tab 2 at 2. OPM filed a motion to dismiss the appeal as it had not issued a 

final decision on the overpayment of annuity matter, noting that the appellant’s

file had been in OPM’s Reconsideration Branch to render a final decision, and 

that once the instant appeal was resolved, OPM would return the case to the 

Reconsideration Branch to address the appellant’s reconsideration request and 

other concerns. IAF, Tab 5 at 4. The administrative judge dismissed the appeal 

for lack of jurisdiction because OPM had not yet issued a final decision. IAF, 

Tab 6, Initial Decision (ID).

DISCUSSION OF ARGUMENTS ON REVIEW

¶4 Generally, the Board has jurisdiction over retirement issues only after OPM 

issues a final or reconsideration decision. Johnson v. Office of Personnel 

Management, 113 M.S.P.R. 118, ¶ 10 (2010). However, the Board may take 

jurisdiction over a retirement appeal in the absence of an OPM reconsideration 

decision where the appellant has made repeated requests for such a decision, and 

the evidence indicates that OPM does not intend to issue a reconsideration 

decision. Id. 

¶5 On review, the appellant argues that OPM has not responded to her 

challenge of the annuity adjustment or request for documentation. The petition 

for review, however, misconstrues the final decision requirement for Board 

jurisdiction over a retirement appeal by alleging that OPM’s commencement of a 

reduction in annuity benefits constituted a final agency decision. Petition for 

Review (PFR) File, Tab 1 at 6; see id., Tab 3 at 1. 

¶6 We conclude that the appellant has not shown error in the administrative 

judge’s finding that the Board lacks jurisdiction over the present appeal. While 

there may be some confusion regarding the potentially related Social Security 
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overpayment, the appellant has not shown that OPM has issued a final decision on 

her annuity recalculation challenge, or has indicated that it does not intend to do 

so. In contrast to Johnson, the record here reflects that OPM has notified the 

appellant that it intends to issue a reconsideration decision. IAF, Tab 3 at 1, Tab 

5 at 4. Moreover, the appellant’s own pleadings indicate that OPM has notified 

her that her request was in the Reconsideration Branch for development. IAF, 

Tab 3 at 1. The appellant received the initial notice of the recalculation from 

OPM in March 2014 and filed her appeal with the Board in June 2014, and thus 

there is no indication of excessive delay by OPM. See Easter v. Office of 

Personnel Management, 102 M.S.P.R. 568, ¶ 8 (2006) (finding that an 18-month 

delay by OPM in addressing appellant’s application indicated a declination to 

adjudicate the application). Accordingly, we find the administrative judge 

correctly determined that the Board lacks jurisdiction over this retirement appeal

at this juncture. 

NOTICE TO THE APPELLANT REGARDING

YOUR FURTHER REVIEW RIGHTS

You have the right to request review of this final decision by the United 

States Court of Appeals for the Federal Circuit. You must submit your request to 

the court at the following address:

United States Court of Appeals

for the Federal Circuit

717 Madison Place, N.W.

Washington, DC 20439

The court must receive your request for review no later than 60 calendar 

days after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec. 

27, 2012). If you choose to file, be very careful to file on time. The court has 

held that normally it does not have the authority to waive this statutory deadline 

and that filings that do not comply with the deadline must be dismissed. See 

Pinat v. Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).
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If you need further information about your right to appeal this decision to 

court, you should refer to the federal law that gives you this right. It is found in 

Title 5 of the United States Code, section 7703 (5 U.S.C. § 7703) (as rev. eff. 

Dec. 27, 2012). You may read this law as well as other sections of the United 

States Code, at our website, http://www.mspb.gov/appeals/uscode.htm. 

Additional information 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, and 11.

If you are interested in securing pro bono representation for your court 

appeal, you may visit our website at http://www.mspb.gov/probono for a list of 

attorneys who have expressed interest in providing pro bono representation for 

Merit Systems Protection Board appellants before the court. The Merit Systems 

Protection Board neither endorses the services provided by any attorney nor 

warrants that any attorney will accept representation in a given case. 

FOR THE BOARD:

Washington, D.C.

______________________________

William D. Spencer

Clerk of the Board