UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

GERALD MITCHELL,

Appellant,

v.

OFFICE OF PERSONNEL 

MANAGEMENT,

Agency.

DOCKET NUMBER

AT-0831-14-0611-I-1

DATE: February 2, 2015

THIS FINAL ORDER IS NONPRECEDENTIAL1

Gerald Mitchell, Memphis, Tennessee, pro se.

Angerlia D. 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 his disability 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 

 1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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

DISCUSSION OF ARGUMENTS ON REVIEW

¶2 On September 17, 2013, the Office of Personnel Management (OPM)

approved the appellant’s application for disability retirement. Mitchell v. Office 

of Personnel Management, MSPB Docket No. AT-0841-14-0365-I-1, Initial 

Appeal File, Tab 22 at 6-8. On March 18, 2014, the appellant filed the instant

appeal concerning the processing of his application for that disability retirement 

annuity. Initial Appeal File (IAF), Tab 1 at 5. The administrative judge issued 

an order to the parties, which advised the appellant of his burden of proof 

regarding jurisdiction. IAF, Tab 14 at 1-3. After the appellant requested an 

extension, the administrative judge issued an initial decision dismissing the

appeal for lack of jurisdiction. 2

 IAF, Tabs 15-16, Tab 17, Initial Decision (ID) 

 2 We find that the administrative judge erred by not issuing a ruling on the appellant’s 

request for an extension. See Long v. Department of the Navy, 32 M.S.P.R. 438, 440 

(1987). However, the appellant has not shown that an extension would have enabled 

him to provide additional evidence or argument establishing Board jurisdiction over his 

claims below, and has not provided such evidence or argument on review, and therefore 

the administrative judge’s failure to rule on his request does not constitute reversible 

error. See Panter v. Department of the Air Force, 22 M.S.P.R. 281, 282 (1984) 
3

at 2-3. The appellant has submitted a timely petition for review. Petition for 

Review (PFR) File, Tab 1. The agency has not responded to the petition for 

review.

The Board lacks jurisdiction because OPM has not issued a reconsideration 

decision regarding the appellant’s disability retirement annuity calculations.

¶3 On petition for review, the appellant alleges that, “the agency has failed 

and/or refused to correct the commencing date of his disability retirement annuity 

to his last day of pay.” PFR File, Tab 2 at 3. He did not challenge OPM’s 

annuity calculations below. See IAF Tabs 1, 4-10. Instead, he alleged that 

“under the watch of OPM,” his employing agency improperly completed, or failed 

to complete, an OPM Standard Form 3112D, Agency Certification of 

Reassignment and Accommodation Efforts. IAF, Tab 1 at 5. He also alleged 

below that OPM refused (1) to properly advise him of his rights and benefits 

regarding eligibility for both disability retirement and discontinued service 

retirement, and (2) to correct his retirement date.

3

 IAF, Tab 8 at 3. The 

administrative judge found that the Board lacks jurisdiction because OPM had not 

issued a reconsideration decision. ID 2-3. We agree. 4

 

 

(adjudicatory error which is not prejudicial to a party’s substantive rights is not 

reversible error).

3 The appellant alleged below that OPM refused to process his health insurance. IAF, 

Tab 8 at 3. However, OPM’s decisions concerning its administration of health benefits 

are not reviewable by the Board. See Oppenheim v. Office of Personnel Management,

51 M.S.P.R. 255, 257 (1991).

4 The appellant alleged below and on review that OPM failed to respond to his 

discovery request. IAF, Tab 7 at 3, Tab 9 at 3; PFR File, Tab 4 at 3. The 

administrative judge did not rule on the appellant’s motion to compel discovery, which

did not meet the requirements of 5 C.F.R. § 1201.73, in that it was not accompanied by 

a statement that no response was received. See 5 C.F.R. § 1201.73(c)(1)(ii). Further, 

the appellant did not state how the discovery information sought was relevant and 

material. See 5 C.F.R. §§ 1201.72(a)-(b), .73(c)(1)(i). Because the appellant’s motion 

to compel did not comply with the requirements of our regulations, the administrative 

judge’s failure to rule on the motion was harmless error. See Johnson v. Department of 

Justice, 104 M.S.P.R. 624, ¶ 30 (2007).
4

¶4 The Board generally lacks jurisdiction to consider the issue of OPM’s 

annuity calculations if OPM has not issued a reconsideration decision on this 

matter. See Parkin v. Office of Personnel Management, 103 M.S.P.R. 468, ¶ 9 

(2006). However, the Board has recognized an exception to this general rule 

where OPM has failed to render a decision. Ramirez v. Office of Personnel 

Management, 114 M.S.P.R. 511, ¶ 7 (2010). The Board will take jurisdiction, 

even absent an OPM reconsideration decision, when the appellant has repeatedly 

requested such a decision and the evidence indicates that OPM does not intend to 

issue a reconsideration decision. Id.

¶5 In the instant case, the Board lacks jurisdiction to consider the issue of the 

annuity calculations because OPM has not issued a reconsideration decision on 

this matter, and the evidence suggests OPM intends to issue such a decision. See 

IAF, Tab 12 at 4-5. OPM indicated below that it “needs time to finalize [the 

appellant’s] disability annuity” because it “require[s] some extensive 

development and calculations” and that it was delayed by the need to issue a final 

decision regarding the appellant’s separate discontinued service retirement

application. Id. at 5. OPM also noted, “[a]s of now [it has] 4 different offices 

involved in his case adjudication and the appeal matter.” Id. Thus, OPM 

responded to the appellant’s assertions and identified the reasons why a

reconsideration decision had not yet been issued.

5

The Board does not have jurisdiction to adjudicate the appellant’s claims of

reprisal or violation of the Family and Medical Leave Act.

¶6 The appellant alleged below that OPM had “engaged in conspiracy but not 

limited to reprisal, among other things.” IAF, Tab 1 at 5. On petition for review, 

he alleges retaliation by OPM.

6

 See PFR File, Tab 1 at 3-4. He alleges that OPM 

 5 Subsequent to OPM issuing a reconsideration decision, the appellant can file a new 

appeal with the Board if he is dissatisfied.

6 The appellant seeks 57 million dollars to settle the appeal. PFR File, Tab 1 at 4. 

However, because there is no jurisdiction over this appeal, we will not address his claim 
5

is “still engaged in reprisal activities as well as other stuff and are in violation of 

his FMLA rights but not limited to his rights under the Rehabilitation Act and the 

Civil Rights Act.” Id. at 3. Further, he argues that OPM has not required his 

employing agency to “accommodate and/or to reassign him and [he] believes the 

Board has jurisdiction over this matter.” PFR File, Tab 3 at 3. 

¶7 With certain exceptions not relevant here, prohibited personnel practices 

under 5 U.S.C. § 2302(b)(9) are not an independent source of Board jurisdiction. 

See Wren v. Department of the Army, 2 M.S.P.R. 1, 2 (1980), aff’d, 681 F.2d 867, 

871-73 (D.C. Cir. 1982). Because the Board lacks jurisdiction over the 

appellant’s disability retirement annuity, the Board also lacks jurisdiction over 

his allegations of reprisal and the agency’s alleged failure to accommodate or 

reassign him.

¶8 The appellant raises a claim under the Family and Medical Leave Act of 

1993 (FMLA) but does not provide any details regarding an alleged violation. 

Although the Board will adjudicate an alleged violation of FMLA in connection 

with a leave-related disciplinary action, it will not take action on an FMLA claim 

absent jurisdiction. Lua v. U.S. Postal Service, 87 M.S.P.R. 647, ¶ 12 (2001). 

Because we find that we lack jurisdiction over the appellant’s disability 

retirement claim, we decline to review his FMLA claim.

¶9 The appellant requested that the Board consolidate this appeal with his 

other appeals. IAF, Tab 8 at 3. To the extent that he was referring to Mitchell v.

Office of Personnel Management, MSPB Docket No. AT-0841-14-0365-I-1, and 

Mitchell v. United States Postal Service, MSPB Docket No. DA-3443-14-0350-

I-1, we DENY his motion for joinder. In his appeal in MSPB Docket No. AT0841-14-0365-I-1, the appellant alleges that OPM repeatedly “failed and/or 

refused” to issue a reconsideration decision regarding his application for a 

discontinued service retirement annuity. MSPB Docket No. AT-0841-14-0365-

 

for damages. See Shelton v. U.S. Soldiers’ & Airmen’s Home, 82 M.S.P.R. 695, ¶ 10 

(1999).
6

I-1, Initial Appeal File, Tab 1 at 3-4. In his appeal in MSPB Docket No. DA3443-14-0350-I-1, the appellant is challenging the alleged failure of the U.S. 

Postal Service to provide insurance. MSPB Docket No. DA-3443-14-0350-I-1, 

Initial Appeal File, Tab 1. Both appeals are pending before the Board on petition 

for review.

¶10 Joinder of two or more appeals filed by the same appellant may be 

appropriate when joinder would expedite processing of the appeals and when 

joinder would not adversely affect the interests of the parties. Boechler v. 

Department of the Interior, 109 M.S.P.R. 542, ¶ 14 (2008), aff’d, 328 F. App’x 

660 (Fed. Cir. 2009); 5 C.F.R. § 1201.36(a)(2), (b). In the instant case, joining 

this appeal with the appeal in MSPB Docket No. AT-0841-14-0365-I-1 would not 

expedite processing of the appeals because we are remanding that appeal, as 

noted in our separate Order in that case. Further, joining this appeal with the 

appeal in MSPB Docket No. DA-3443-14-0350-I-1 would not be appropriate 

because there is no evidence that the U.S. Postal Service ever requested to 

intervene in this proceeding. Cf. Holser v. Office of Personnel 

Management, 72 M.S.P.R. 247, 251 (1996) (finding no error by the administrative 

judge in not combining a disability retirement claim with an involuntary 

resignation claim because disposition of one did not affect the other). 

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
7

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).

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