UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

DAISY MENENDEZ,

Appellant,

v.

OFFICE OF PERSONNEL 

MANAGEMENT,

Agency.

DOCKET NUMBER

AT-0841-15-0223-I-1

DATE: May 14, 2015

THIS FINAL ORDER IS NONPRECEDENTIAL*

Daisy Menendez, Miami, Florida, pro se.

Patrick Jennings, 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 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 * A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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 except as expressly MODIFIED by this Final Order. 

Specifically, we find that the administrative judge erred by not providing the 

appellant with explicit information on what was required to establish jurisdiction 

in this case, but this error did not prejudice the appellant’s substantive rights and 

does not affect the outcome of the appeal. 

¶2 The appellant filed an appeal contesting a reduction in her retirement 

annuity. Initial Appeal File (IAF), Tab 1. In response to the appeal, the Office of 

Personnel Management (OPM) stated that it had rescinded the reconsideration 

decision in the appellant’s case, and it moved to dismiss the appeal for lack of 

jurisdiction. IAF, Tab 5 at 4. The administrative judge issued an initial decision 

that dismissed the appeal for lack of jurisdiction because there was no final 

appealable decision from OPM. IAF, Tab 6.

¶3 If OPM completely rescinds a reconsideration decision, the rescission 

divests the Board of jurisdiction over the appeal in which the reconsideration 

decision is at issue, and the appeal must be dismissed. See, e.g., Martin v. Office 

of Personnel Management, 119 M.S.P.R. 188, ¶ 8 (2013). The appellant does not 

allege on review that the administrative judge was mistaken in finding that OPM 

rescinded its reconsideration decision and we find no basis to disturb that finding. 
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Accordingly, we find that the administrative judge correctly dismissed this appeal 

of lack of jurisdiction.

¶4 An appellant must receive explicit information on what is required to 

establish an appealable jurisdictional issue. Burgess v. Merit Systems Protection 

Board, 758 F.2d 641, 643-44 (Fed. Cir. 1985). An administrative judge’s failure 

to provide this notice can be cured if the agency’s pleadings or the initial decision 

contain the notice that was lacking, thus affording the appellant an opportunity to 

establish jurisdiction on review. See, e.g., Parker v. Department of Housing & 

Urban Development, 106 M.S.P.R. 329, ¶ 8 (2007). We find that the notice 

provided to the appellant was incomplete and that the initial decision and OPM’s 

pleadings did not cure the deficiency. However, a reasonable person in the 

appellant’s position should have realized upon receiving the initial decision that 

the question in this case was whether OPM had rescinded its reconsideration 

decision. She has had the opportunity on review to contest the finding that OPM 

rescinded its decision, but has not done so and there is no basis from the record 

for concluding that OPM has not rescinded the decision. Therefore, the 

administrative judge’s failure to provide complete notice of the appellant’s 

jurisdictional burden did not prejudice the appellant’s substantive rights and 

provides no basis for reversal of the initial decision. See Panter v. Department of 

the Air Force, 22 M.S.P.R. 281, 282 (1984).

NOTICE TO THE APPELLANT REGARDING

YOUR FURTHER REVIEW RIGHTS

The initial decision, as supplemented by this Final Order, constitutes the 

Board’s final decision in this matter. 5 C.F.R. § 1201.113. You have the right to 

request the United States Court of Appeals for the Federal Circuit to review this 

final decision. You must submit your request to the court at the following 

address:
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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).

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 an appeal to the 

United States Court of Appeals for the Federal Circuit, 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 services
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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