UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD

CHARLES P. HOLLY, Appellant,

v.
OFFICE OF PERSONNEL MANAGEMENT, Agency. DOCKET NUMBER DC

- 0843

- 15

- 0151

- I

- 1

DATE: May 6, 2015



### THIS FINAL ORDER IS NONPRECEDENTIAL 1

Charles P. Holly , Severn, Maryland, pro se.

Karla W. Yeakle , 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 for lack of jurisdiction his appeal in which he challenged the Office of Personnel Management (OPM)’s calculations related to his annuity. Generally, we grant petitions such as this one only when: the initial decisio n contains

1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not require d to follow or distinguish them in any future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 signific antly contributing to the Board’ s case law. See 5 C.F.R. § 1201.117 (c).2

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 judge’s rulings during either the course of the appe al 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
DEN Y 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, formerl y a f ederal employee, and his wife divorced in 1999

. The divorce decree incorporated the terms of a property settlement in which the appellant irrevocably assigned to his wife a pro rata share of his unreduced annuity upon his retire ment. The property settlement also provided that the appellant would take all necessary steps to elect his wife as the desig nated beneficiary for purposes of establishing and sustaining s urvivor spouse coverage
for her and that , in the event she elected s uch rights, she would exclusively bear their cost by way of a reduced benefit to her. After the appellant retired, his
former wife determined that she did not want the survivor annuity inasmuch as the cost of it was too high , and she notified OPM of her w ishes, requesting to waive the benefit. OPM disallowed her request, but , on appeal, an administrative judge reversed OPM’s decision. On OPM’s petition for review of that decision,
the Board affirmed the administrative judge’s decision, modif y i ng it s anal ysis but still finding that the appellant’s former wife was entitled to waive her entitlement to the survivor annuity. Holly v. Office of Personnel Management , 121 M.S.P.R.
134 , ¶¶ 8

- 14 (2014). The Board ordered OPM to grant the former wife’s request3

for a waiver of the former spouse survivor annuity, to immediately cease its reductions of monies withheld from her monthly annuity payments, and to reimburse her for all prior reductions taken from her monthly apportioned annuity payments. Id. , ¶ 15. ¶3 Months after the B oard issued that Opinion and Order, the appellant filed a
Motion for Status as a Permissive I ntervenor under 5 C.F.R. § 1201.34 . Initial Appeal File (IAF), Tab 1. Therein he argued that his interest s had been affected by what he described as OPM’ s failure to enforce the Board’s Order . He
ackno wledged that OPM , in fact, had stopped wit hholding the monies from his
former wife ’s annuity but argued that it was now withholding that sum from his annuity

. Id. at 2. He asked that his intervenor motion be granted so that he could seek enforcement of the Board’s order, id. at 3, a nd he submitted a pleading that he characterized as a petition for enforcement , i d. at 4

- 10. In th is pleading , t he appellant asked that the Board direct OPM to stop withholding the monies from his annuity and to reimburse him for what he alleged were improper withholdings over the past 6 months. Id. at 5. He also explained that he had elected a survivor annuity for his current spouse but that they had not been notified of the “change
in entitlement , ” i d. at 5 n.1 , and had not observed an appropriate deduction in his annuity for that benefit , i d. at 14. The appellant acknowledged that he had not
filed his p leading within 30 days of the da te of the B oard’s decision but claimed
that he was never notified of that decision. Id. at 5. ¶4 The administrative judge treated the appellant’s submission as a new appeal and assigned it a different docket number than the one assigned to the appeal of
the appellant’s former wife. In response to the appeal, the administrative judge
issued an Order to Show Cause , i d. , Tab 3 , wherein s he first addressed the appellant’s motion to intervene in his former wife’s appeal, explaining that,
because the Board had iss ued a final decision in that case, there was no longer
any proceeding pending before the Board in which t he appellant could intervene,
i d. at 1

- 2; see 5 C.F.R. § 1201.34 (a). The administrative judge acknowledged4

that the appellant could file his own appeal of a final decision issued by OPM regarding his annuity but that it did not appear that such a decision had been
issued. IAF, Tab 3 at 2. T he administrative judge ordered the appellant to file evidence and argument to show that his appeal was within the Board’s jurisdiction, i d. , but h e did not respond. ¶5 The administrative judge dismissed the appellant ’s appeal for lack of jurisdiction, finding that he presented no evidence or argument that OPM has
issued a final or reconsideration decision in the matter about which he complain ed

. Id. , Tab 6, Initial Decision at 2

- 3. ¶6 The appellant has filed a petition for review , Petition f or Review (PFR) File, Tab 1, to which the a genc y has responded in opposition, i d. , Tab 3. ¶7 T he administrative judge correctly found that the Board has jurisdiction over an OPM determination affecting an individual’s rights or interests under a retirement sy stem only after OPM has issued a final or reconsideration decision. ID at 2; see Tatum v. Office of Personnel Management , 82 M.S.P.R. 96 , ¶ 17 (1999) ; 5 C.F.R. § 831.110 . The appellant acknowledges that t he re i s no OPM
decision “ in [ his ] name

. ” PFR File, Tab 3 at 5. A s OPM explained bel ow, and

re iterates in its response to his petition for review , it is in the process of taking appropriate action to make necessary adjustments to the appellant’s annuity , and, when those actions are complete, it will provide him with a written decision
exp laining its calculations from which he can request reconsideration. IAF, Tab 5; PFR File, Tab 3 at 5. Upon his receipt of a reconsideration decision, t he appellant , if dissatisfied, may file an appeal with the Board. 5 C.F.R. § 831.110

. ¶8 On review , the appellant argues that , notwithstanding the Board’s Opinion and Order in his former wife’s appeal, the agency still names her, and not his current wife, as the beneficiary of his survivor annuity. PFR File, Tab 1 at 5. He
ha s submitted a December 17, 2014 annuity statement , which appears to support
his claim

. Id. at 8. However, w hile the proffered evidence may be new, it is not
material t o the dispositive jurisdictional issue in this case , and we have therefore5

not considered it. 2 Russo v. Veterans Administration , 3 M.S.P.R. 345 , 349 (1980). ¶9 The appellant al so argues that the administrative judge erred in not grant ing
him intervenor status regarding his former wife’ s appeal. PFR File , Tab 1 at 4. The appellant failed to challenge before the administrative judge in this appeal her ruling denying his request for such status. Hi s failure to object to that ruling below precludes him from challenging it on review. 3 See Miller v. U.S. Postal
Service , 117 M.S.P.R. 557 , ¶ 7 (2012).

NOTICE TO THE APPELL ANT 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 cour t 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).

2 I n response to the appellant’s petition for review, the agency has submitt ed a current copy of its “ Master Recor d Print Out ” listing the appellant’s current wife as the beneficiary of his survivor annuity. PFR File, Tab 3 at 4

- 6.
3 In any event, we fail to see how the appellant was directly affected by the outcome of the proceeding which formed the basis of Holly v

. Office of Personnel Management , 121 M.S.P.R. 134 (201 4 ) , inasmuch as that decision directed OPM to make specific adjustments only to the appellant’s former wife’s annuity

.6

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.ht m

. 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 information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Merit Systems Protection Board
neither endorses the servi ces 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