UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION 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### THIS FINAL ORDER IS NONPRECEDENTIAL *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* A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or dis tinguish them in any future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

regulat ion 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 erro r 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 tha t 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 e xcept as expressly MODIFIED by this Final Order

. Specifically, we fin d 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.3

Accordingly, we find that the administrative judge correct ly 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 lac king, 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 init ial 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 APPELL ANT REGARDING YOUR FURTHER REVIEW RIGHTS The initial decision, as supplemented by this Fin al 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:4

United States Court of Appeals for th e 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 di smissed. See Pinat v. Office of Personnel Management , 931 F.2d 1544 (Fed. Cir. 1991). If you need further information about your right to appea l 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 Sy stems Protection Board appellants before the Federal
Circuit. The Merit Systems Protection Board neither endorses the services5

provided by any attorney nor warrants that any attorney will accept representation in a given case.

FOR THE BOARD:

Washingto n, D.C. ______________________________ William D. Spencer Clerk of the Board