UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

MARTIN F. SALAZAR,

Appellant,

v.

OFFICE OF PERSONNEL 

MANAGEMENT,

Agency.

DOCKET NUMBER

AT-0842-14-0765-I-1

DATE: April 23, 2015

THIS FINAL ORDER IS NONPRECEDENTIAL*

Martin F. Salazar, Grovetown, Georgia, pro se.

Christopher H. Ziebarth, Washington, D.C., for the agency.

BEFORE

Susan Tsui Grundmann, Chairman

Mark A. Robbins, Member

FINAL ORDER

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

dismissed his retirement 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 

 * A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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).
2

interpretation of statute or 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). 

¶2 In early 2014, the appellant filed an application for a deferred retirement 

annuity. Initial Appeal File (IAF), Tab 6 at 4. On June 20, 2014, he filed a 

Board appeal in which he asserted that the Office of Personnel Management 

(OPM) had failed to act on his application. IAF, Tab 1. Because it appeared that 

OPM had not issued a final decision on the appellant’s retirement application, the 

administrative judge issued a show-cause order in which he informed the 

appellant that the Board may lack jurisdiction over his appeal and directed the 

appellant to file evidence and argument establishing the Board’s jurisdiction. 

IAF, Tab 7. After considering the parties’ submissions, the administrative judge 

dismissed the appeal for lack of jurisdiction on the basis that OPM had not issued 

a final decision. IAF, Tab 17, Initial Decision (ID). The appellant petitions for 

review. Petition for Review (PFR) File, Tabs 1-2. 

¶3 If OPM has not issued a final decision on an appellant’s entitlement to a 

retirement benefit, the Board generally lacks jurisdiction over an appeal of that 

matter. See, e.g., Fletcher v. Office of Personnel Management, 118 M.S.P.R. 632, 

¶ 5 (2012). However, the Board may take jurisdiction over a retirement appeal in 

the absence of a final decision if the appellant has made repeated requests for a 
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final decision and the evidence indicates that OPM does not intend to issue a final 

decision. Id. 

¶4 In response to the administrative judge’s acknowledgment order, OPM 

asserted that it was “unable to locate” a final decision in the appellant’s case. 

IAF, Tab 6 at 4. OPM also explained that the appellant’s original retirement 

application was inadequate and that it would send him a detailed explanation of 

how he could perfect his application “[i]n the immediate future.” Id.

¶5 The appellant contends on review that this statement is inadequate to 

support a conclusion that OPM intends to issue a final decision. See PFR File, 

Tab 1 at 5, 8. However, the appellant has the burden of proving jurisdiction over 

his appeal. See, e.g., Reid v. Office of Personnel Management, 120 M.S.P.R. 83, 

¶ 6 (2013). Therefore it is his burden to prove that OPM has either issued an 

appealable decision or that OPM does not intend to issue an appealable decision. 

OPM is not required to prove that it has issued an appealable decision or that it 

intends to issue an appealable decision. Therefore, the administrative judge 

correctly found that the appellant failed to show that OPM has made either an 

actual or constructive decision on his retirement application. ID at 3-4. Thus, the 

administrative judge properly found that the Board lacks jurisdiction over this 

appeal.

¶6 The appellant contends on review that the administrative judge was biased 

against him, erred by failing to grant his motion to disqualify, and erred by not 

applying the substantial evidence burden of proof. PFR File, Tab 1 at 9-11. The 

bases for the appellant’s bias claim are that the administrative judge raised the 

issue of jurisdiction sua sponte, and the administrative judge contacted him ex 

parte to see if the appellant would withdraw the appeal until OPM issued an 

appealable decision. Id. at 9-10; see IAF, Tab 15 at 6-7. The issue of jurisdiction 

is always before the Board and may be raised at any time during a proceeding. 

Morgan v. Department of the Navy, 28 M.S.P.R. 477, 478 (1985). It is incumbent 

on the administrative judge to address jurisdiction sua sponte if there is reason to 
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believe that jurisdiction might be an issue in the appeal. See Stephen v. 

Department of the Air Force, 47 M.S.P.R. 672, 678 (1991). Therefore, it was 

entirely appropriate for the administrative judge to raise the issue of jurisdiction 

sua sponte. Moreover, the administrative judge did not engage in an improper ex 

parte communication when he contacted the appellant about a procedural matter, 

see 5 C.F.R. §§ 1201.101(a), 102, and OPM waived the prohibition against ex 

parte communications in any event, IAF, Tab 6 at 4. Further, the preponderant 

evidence standard applies in this case and the administrative judge was correct to 

employ it. 5 U.S.C. § 7701(c)(1)(B).

¶7 The remainder of the appellant’s petition for review argues extensively that 

the administrative judge erred by ruling against him on his various motions filed 

below. IAF, Tabs 4, 8, 10, 12, 14, Tab 15 at 7-10. We have considered the 

appellant’s arguments and find, based on our review of the record, that they are 

without merit. The administrative judge explained the basis for his denial of the 

appellant’s motions in some detail, see IAF, Tabs 7, 9, 11, 13; ID at 2-3 n.1, and 

the appellant has not shown that the administrative judge abused his discretion in 

any of these rulings. 

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 
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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).

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