UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD

SCOTT E. DARELIUS,

Appellant,

v.
OFFICE OF PERSONNEL MANAGEMENT,

Agency. DOCKET NUMBER PH-0842-18-0103-I-1

DATE: February 7, 2024



### THIS FINAL ORDER IS NONPRECEDENTIAL 1

Scott E. Darelius , Pawtucket, Rhode Island, pro se.

Alison Pastor , Washington, D.C., for the agency.

BEFORE Cathy A. Harris, Vice Chairman Raymond A. Limon, Member

FINAL ORDER The appellant has filed a petition for review of the initial decision, which affirmed the reconsideration decision of the Office of Personnel Management (OPM) denying his application for a deferred annuity under the Federal Employees’ Retirement System. Generally, we grant petitions such as this one only in the following circumstances: the initial decision contains 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1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions.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).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 administrative 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. 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, 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). On petition for review, the appellant reasserts his arguments that he was “terrorized” by the Postmaster during his employment with the U.S. Postal Service, he was wrongfully terminated, and he previously brought the matter to a judge. Petition for Review (PFR) File, Tab 1 at 1-2; Initial Appeal File (IAF), Tab 1 at 3, Tab 11 at 1. 2 We find that the administrative judge adequately addressed these arguments in the initial decision. Specifically, the administrative judge considered the appellant’s assertion that a prior judge changed his separation date from 1993 to 1991, but she noted that the appellant admitted that his date of separation was June 5, 1991. IAF, Tab 16, Initial Decision (ID) at 4. The appellant does not dispute, and we discern no reason to disturb, the administrative judge’s finding that the date of separation was the date of his

2 The appellant has included evidence that already is a part of the record before the administrative judge. PFR File, Tab 1 at 3; IAF, Tab 1 at 7. After filing the petition for review, the appellant also filed a pleading that stated, “I would like to take my case to federal court.” PFR File, Tab 6. The Office of the Clerk of the Board ordered the appellant to confirm whether he was requesting to withdraw his petition for review under the Board’s June 28, 2022 withdrawal policy. PFR File, Tab 7. The appellant then filed a pleading that stated, “I would like to continue my petition with [sic] review before the Board.” PFR File, Tab 8. Accordingly, the Board is issuing this Final Order on the appellant’s petition for review. 2removal from the U.S. Postal Service on June 5, 1991. ID at 4. Moreover, we

agree with the administrative judge’s finding that the appellant’s allegations of being terrorized at the U.S. Postal Service and concerning the reason for his separation are not relevant to this appeal of OPM’s reconsideration decision. ID
at 5. To the extent the appellant wishes to pursue a wrongful termination claim against his former employing agency, he may file a separate appeal with the Board’s regional office in accordance with the Board’s regulations set forth at
5 C.F.R. § 1201.22. However, considering that approximately 28 years have passed since his separation in 1991, and his assertions suggesting that he had previously challenged the matter before a judge, we do not express an opinion on the timeliness of or the Board’s jurisdiction over that separate appeal. ID at 4;

see 5 C.F.R. § 1201.56(b)(2)(i)(A)-(B) (providing that an appellant bears the burden of proof regarding jurisdiction and the timeliness of an appeal).

NOTICE OF APPEAL RIGHTS 3 You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum.

3 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter. 3Please read carefully each of the three main possible choices of review

below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.

(1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit 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, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. 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 Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you 4were affected by an action that is appealable to the Board and that such action

was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision

— including a disposition of your discrimination
claims

— by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court

- appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a. Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx

. Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision. If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is: 5Office of Federal Operations Equal Employment Opportunity Commission

P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission

131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction. 4 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(B).

4 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195, 132 Stat. 1510. 6If you submit a petition for judicial review to the U.S. Court of Appeals for

the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit 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, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. 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 Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx

.

FOR THE BOARD:

______________________________ Gina K. Grippando Clerk of the Board Washington, D.C. 7