UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

KENNETH M. LEE,

Appellant,

v.

OFFICE OF PERSONNEL 

MANAGEMENT,

Agency.

DOCKET NUMBER

AT-0831-16-0252-I-1

DATE: September 23, 2016

THIS FINAL ORDER IS NONPRECEDENTIAL1

Kenneth M. Lee, Loris, South Carolina, pro se.

Sarah Murray, 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 from the denial of credit for a portion 

of his Federal and military service in the calculation of his retirement annuity 

under the Civil Service Retirement System (CSRS) by the Office of Personnel 

 1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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

Management (OPM). 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 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).

BACKGROUND

¶2 On May 5, 2015, the appellant applied for deferred retirement under CSRS. 

Initial Appeal File (IAF), Tab 9 at 6-8. In a letter dated October 5, 2015, OPM 

notified the appellant that he could make a deposit to obtain credit for part of his 

Federal service during which no retirement deductions were withheld from his 

salary. IAF, Tab 1 at 13.

2

 OPM further advised him that his election to make or 

not make a deposit was “irrevocable” and could not “be changed after final 

adjudication of [his] claim,” and that he had to reply within 30 days of the date of 

the letter. Id. at 14. In a letter dated November 23, 2015, OPM again notified the 

appellant that he could make a deposit to obtain service credit, but altered the 

current monthly annuity amount on the election form. Id. at 15-16. In an undated 

form RI 20-49, OPM informed the appellant that he had not received credit for his 

 2 The administrative judge made a typographical error in stating that the letter was 

dated “October 4, 2015.” IAF, Tab 15, Initial Decision at 1.
3

military service in the calculation of his retirement annuity because he did not 

make a deposit before he retired. Id. at 17-19.

¶3 The appellant filed this appeal to the Board disputing OPM’s claim that he 

had not made retirement contributions to receive credit for part of his Federal and

military service in the calculation of his retirement annuity. Id. at 2-12. OPM

filed a motion to dismiss the appeal for lack of jurisdiction because it had not 

issued a final or initial decision in the matter. IAF, Tab 9 at 4. OPM claimed

that it had finalized the appellant’s retirement annuity benefits on 

November 11, 2015, but that further review of the computation of his annuity was 

needed based on his submissions in this appeal. Id. OPM further stated that, 

once this appeal was dismissed, it intended to remand his file to OPM’s 

adjudication branch for review and issue an initial decision with reconsideration 

rights. Id.

¶4 In a show cause order, the administrative judge advised the appellant that 

the Board generally lacks jurisdiction over a retirement matter when OPM has not 

issued a reconsideration decision. IAF, Tab 10 at 1. She advised him of his 

burden of proving jurisdiction over the appeal and ordered him to file evidence 

and argument on the jurisdictional issue. Id. at 2. The appellant responded to the 

show cause order. IAF, Tabs 13-14. He argued that the Board had jurisdiction 

over the appeal because OPM had finalized his retirement annuity benefits. IAF, 

Tab 13 at 2-3. He further alleged that OPM had no intention to issue a 

reconsideration decision because it had been unresponsive for 8 months since he 

applied for retirement. Id. at 3.

¶5 The administrative judge issued an initial decision granting the agency’s 

motion and dismissing the appeal for lack of jurisdiction. IAF, Tab 15, Initial 

Decision (ID) at 1, 4. She found that the Board lacked jurisdiction over the 

appeal because OPM had not issued a final decision on the appellant’s claim and 

stated that it intended to issue one. ID at 4. She further found that OPM had

been actively processing his application since he applied for retirement and the 
4

totality of the circumstances did not support taking jurisdiction over the appeal. 

Id.

¶6 The appellant has filed a petition for review. Petition for Review (PFR) 

File, Tab 1. OPM has filed a response. PFR File, Tab 4. The appellant has filed 

a reply to OPM’s response. PFR File, Tab 5.

DISCUSSION OF ARGUMENTS ON REVIEW

The Board lacks jurisdiction over the appeal.

¶7 The Board’s jurisdiction is limited to those matters over which it has been 

given jurisdiction by law, rule, or regulation. Maddox v. Merit Systems 

Protection Board, 759 F.2d 9, 10 (Fed. Cir. 1985). The appellant has the burden 

of proving the Board’s jurisdiction by a preponderance of the evidence. 3 5 C.F.R. 

§ 1201.56(b)(2)(i)(A). The Board has jurisdiction over OPM determinations 

affecting an appellant’s rights or interests under CSRS only after OPM has issued 

a final decision. Morin v. Office of Personnel Management, 107 M.S.P.R. 534, 

¶ 8 (2007), aff’d per curiam, 287 F. App’x 864 (Fed. Cir. 2008); see 5 U.S.C. 

§ 8347(d); 5 C.F.R. § 831.110.

4

 However, the Board will take jurisdiction over 

an appeal concerning a retirement matter in which OPM has refused or 

improperly failed to issue a final decision. Okello v. Office of Personnel 

Management, 120 M.S.P.R. 498, ¶ 14 (2014). In such a case, the Board will 

 3 A preponderance of the evidence is the degree of relevant evidence that a reasonable 

person, considering the record as a whole, would accept as sufficient to find that a 

contested fact is more likely to be true than untrue. 5 C.F.R. § 1201.4(q).

4 The administrative judge erroneously cited to regulations relevant to establishing 

jurisdiction over a retirement matter under the Federal Employees’ Retirement System 

(FERS). ID at 2. However, we find no reason to disturb the initial decision because 

such error does not affect the outcome of the appeal. See Panter v. Department of the 

Air Force, 22 M.S.P.R. 281, 282 (1984) (finding that an adjudicatory error that is not 

prejudicial to a party’s substantive rights provides no basis for reversal of an initial 

decision). The applicable laws and regulations under both FERS and CSRS require the 

issuance of a reconsideration decision by OPM for the Board to have jurisdiction over a 

retirement matter. Compare 5 U.S.C. § 8461(e), and 5 C.F.R. § 841.308, with 5 U.S.C. 

§ 8347(d), and 5 C.F.R. § 831.110.
5

consider the totality of the circumstances to find that OPM’s failure to act on the 

matter itself constitutes an appealable administrative action affecting the 

appellant’s rights under a retirement system. See id., ¶ 15 (finding that OPM’s 

lengthy delay and repeated administrative missteps in issuing a final, appealable 

decision constituted a sufficient basis for the Board to take jurisdiction over the 

appeal).

¶8 Here, OPM asserted that it had not issued a final or initial decision on the 

appellant’s claim, but that it intended to review his case and issue an initial 

decision with reconsideration rights after the dismissal of this appeal. IAF, Tab 9

at 4. The administrative judge relied on OPM’s assertions in finding that the 

Board lacked jurisdiction over the appeal. ID at 4.

¶9 In his petition for review, the appellant disputes the administrative judge’s 

finding that the Board lacks jurisdiction over the appeal. PFR File, Tab 1 at 6-8. 

First, he asserts that the Board has jurisdiction because OPM has made a final 

annuity calculation. Id. at 7. To support his argument, he cites to the election 

forms sent by OPM that stated that he had to reply within 30 days of the date of 

the notice, and that his election to make or not make a deposit for service credit

was “irrevocable” and could not “be changed after final adjudication of [his]

claim.” Id.; IAF, Tab 1 at 14, 16. He also claims that OPM determined a final 

“benefit package” on November 30, 2015, and cites to a personalized booklet of 

retirement benefits. PFR File, Tab 1 at 7; IAF, Tab 1 at 32-38.

¶10 We find that OPM did not make a final decision within the meaning of 

OPM’s regulations. Under 5 C.F.R. § 831.109(f), a final decision must contain a 

written notice of a Board appeal right. Cf. Powell v. Office of Personnel 

Management, 114 M.S.P.R. 580, ¶ 9 (2010) (finding that OPM’s letter without 

notice of a Board appeal right constituted an appealable final decision when there 

was no indication that OPM intended to take further action in the case). Thus, the 

appellant has not provided evidence of a final decision, and, as discussed below, 
6

he has not provided evidence indicating that OPM does not intend to issue an 

initial decision with reconsideration rights as it stated in its motion to dismiss. 

¶11 Next, the appellant argues that the Board has jurisdiction because OPM has 

been unresponsive to his claims, has caused continual delays, and does not intend 

to issue an appealable decision. PFR File, Tab 1 at 8. In support, he cites to

Okello, 120 M.S.P.R. 498, ¶ 15, which found that OPM’s failure to act on the 

appellant’s retirement matter constituted an appealable administrative action. 

However, the facts of this case do not approach the unusual and compelling 

circumstances present in Okello, 120 M.S.P.R. 498, ¶¶ 3-11, 15-16, which 

included a 6-year delay plus numerous abortive decisions and administrative 

errors, such that the Board could find that OPM has effectively abdicated its role 

of adjudicating the appellant’s claim. Further, there is no supporting evidence for 

his allegation that OPM’s intention to issue an initial decision with 

reconsideration rights is deceptive and a “delay tactic.” PFR File, Tab 1 at 8; 

cf. Okello, 120 M.S.P.R. 498, ¶ 15 (finding that, although OPM’s representation 

that it intended to issue a further decision on a retirement matter normally weighs 

significantly against the Board taking jurisdiction over an appeal, the Board had 

little confidence that OPM would follow through with its stated intention based 

on the extraordinary circumstances of the case).

The appellant’s additional claims on review fail to provide a reason to disturb the 

initial decision.

¶12 The appellant’s remaining arguments do not provide a reason to disturb the 

initial decision. First, he argues that the administrative judge erroneously 

considered OPM’s untimely response to the acknowledgment order, including its 

motion to dismiss. PFR File, Tab 1 at 8. After OPM failed to timely respond to 

the administrative judge’s multiple orders, she suspended case processing for 

30 days under 5 C.F.R. § 1201.28(a) to allow OPM additional time to submit a 

response. IAF, Tab 2 at 6, Tabs 4-5, 7. Because OPM filed its response before 
7

the end of case suspension, we find that its response was timely filed and the 

administrative judge properly considered it. IAF, Tab 9. 

¶13 Next, the appellant alleges that his copy of OPM’s motion to dismiss did 

not contain a date of service. PFR File, Tab 1 at 8; see 5 C.F.R. § 1201.26(b)(2)

(providing that a certificate of service stating how and when service was made 

must accompany each pleading served by a party). However, OPM’s 

representative registered as an e-filer, and, in the certificate of service generated 

by e-Appeal Online when OPM electronically filed its March 16, 2016 motion to 

dismiss, OPM agreed to serve the appellant by U.S. mail by the end of the next 

business day. IAF, Tab 8, Tab 9 at 9; 5 C.F.R. § 1201.14(j)(1). The appellant 

alleges that “OPM was also allowed to argue its case outside of protocol in a 

letter to the judge without receiving rebuttal.” PFR File, Tab 1 at 9. To the 

extent the appellant is referring to OPM’s motion to dismiss, we find that he 

concedes that he received a copy of the motion, it complied with the Board’s 

procedural requirements, he had an opportunity to respond to it, and he did, in 

fact, submit responses, after the administrative judge issued the show cause order. 

IAF, Tabs 13-14.

¶14 Further, the appellant alleges that he was prejudiced by the administrative 

judge’s erratum order, which limited the time for him to submit a response to the 

show cause order to 10 days. PFR File, Tab 1 at 8; IAF, Tab 12. We find that the 

administrative judge’s error provides no reason to disturb the initial decision 

because the appellant has not shown how it affected the outcome of the appeal. 

See Karapinka v. Department of Energy, 6 M.S.P.R. 124, 127 (1981) (finding that 

an administrative judge’s procedural error is of no legal consequence unless it is 

shown to have adversely affected a party’s substantive rights).

¶15 Additionally, the appellant contends that the administrative judge failed to 

grant his motion to compel discovery. PFR File, Tab 1 at 9; IAF, Tab 6 at 1-3. 

The administrative judge acknowledged his motion to compel below, but declined 

to consider it until OPM provided its agency response. IAF, Tab 7 at 1 n.1. 
8

Under 5 C.F.R. § 1201.41(b)(4), an administrative judge has broad discretion in 

ruling on discovery matters, and, absent an abuse of discretion, the Board will not 

find reversible error in such rulings. Vaughn v. Department of the Treasury, 

119 M.S.P.R. 605, ¶ 15 (2013); Wagner v. Environmental Protection Agency, 

54 M.S.P.R. 447, 452 (1992), aff’d, 996 F.2d 1236 (Fed. Cir. 1993) (Table). 

Having reviewed the appellant’s claim on review and the record, we find that the 

administrative judge did not abuse her discretion in denying his motion to 

compel.

¶16 We also find that the appellant has not shown that the administrative judge 

abused her discretion by not imposing sanctions against OPM for failing to 

respond to her orders. PFR File, Tab 1 at 9; see Smets v. Department of the Navy, 

117 M.S.P.R. 164, ¶ 11 (2011) (stating that the imposition of sanctions is a matter 

within the administrative judge’s sound discretion, and, absent a showing that 

such discretion has been abused, the administrative judge’s determination will not 

be found to constitute reversible error), aff’d per curiam, 498 F. App’x 

1 (Fed. Cir. 2012); 5 C.F.R. § 1201.41(b)(11).

¶17 Moreover, the appellant asserts that the administrative judge erroneously 

found that he had received a refund of retirement contributions. PFR File, Tab 1 

at 8. We find that the administrative judge did not make such a finding, but 

instead summarized OPM’s letter stating that he may have received a refund of 

his retirement contributions. ID at 1-2; IAF, Tab 1 at 13. Further, this argument 

on the merits of the appeal is irrelevant to the jurisdictional issue before the 

Board. See, e.g., Sapla v. Department of the Navy, 118 M.S.P.R. 551, ¶ 7 (2012) 

(finding that the appellant’s arguments on the merits of her appeal were not 

relevant to the jurisdictional question).

¶18 Similarly, we find that the appellant’s claim that OPM violated his due 

process rights by denying him the full amount of his retirement annuity is not a 

basis for Board jurisdiction over his appeal. PFR File, Tab 1 at 9. We also find 
9

that his allegation of OPM’s violation of the Administrative Procedure Act is 

inapposite to the dispositive jurisdictional issue. Id. at 10.

¶19 Finally, although the appellant argues that the administrative judge was 

biased in favor of OPM, we find that he has failed to overcome the presumption 

of honesty and integrity that accompanies administrative adjudicators. Id. at 9; 

see Oliver v. Department of Transportation, 1 M.S.P.R. 382, 386 (1980).

¶20 Accordingly, we find that the administrative judge properly dismissed this 

appeal for lack of jurisdiction. 5

 If the appellant is dissatisfied with any 

subsequent OPM decision regarding his retirement benefits, he may request that 

OPM reconsider the decision, and, if he is still dissatisfied, he may appeal OPM’s 

final decision to the Board. See 5 U.S.C. § 8347(d); 5 C.F.R. § 831.110. Any 

future appeal must be filed within the time limits set forth in the Board’s 

regulations. See 5 C.F.R. § 1201.22.

NOTICE TO THE APPELLANT REGARDING

YOUR FURTHER REVIEW RIGHTS

You have the right to request review of this final decision by the 

U.S. 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

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 

 5 Because we find that the Board lacks jurisdiction over this appeal, we deny the 

appellant’s request to remand the case for summary judgment and assign a new 

administrative judge. PFR File, Tab 1 at 10.
10

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 U.S. 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 U.S.

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 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 

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.

______________________________

Jennifer Everling

Acting Clerk of the Board