UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

LATIF W. KADIM,

Appellant,

v.

OFFICE OF PERSONNEL 

MANAGEMENT,

Agency.

DOCKET NUMBER

AT-0831-15-0153-I-1

DATE: April 8, 2015

THIS FINAL ORDER IS NONPRECEDENTIAL1

Latif W. Kadim, Sandy Springs, Georgia, pro se.

Roxann Johnson, 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 the appeal for lack of jurisdiction because the Office of Personnel 

Management (OPM) had rescinded its final decision. Generally, we grant 

petitions such as this one only when: 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 1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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).
2

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 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, which is now the 

Board’s final decision. 5 C.F.R. § 1201.113(b). 

DISCUSSION OF ARGUMENTS ON REVIEW

¶2 OPM issued a final decision stating that the appellant’s monthly annuity 

benefit under the Civil Service Retirement System (CSRS) would be adjusted to 

eliminate credit for his post-1956 military service because he had not made a 

deposit for this service. Initial Appeal File (IAF), Tab 1. The appellant appealed 

OPM’s decision, asserting that he should be allowed to make a deposit for this 

military service and have his annuity retroactively restored to the amount that it 

would have been had he originally made the deposit. IAF, Tabs 1, 3. In 

response, OPM rescinded its decision, stating that it would allow the appellant to 

make the deposit. IAF, Tab 6 at 4. OPM moved to have the appeal dismissed for 

lack of jurisdiction. Id. In the initial decision, the administrative judge found 

that OPM had rescinded its decision and therefore dismissed the appeal for lack 

of jurisdiction. IAF, Tab 7, Initial Decision.

¶3 The appellant has timely petitioned for review, asserting that the process of 

allowing him to make the deposit was taking too long, which was equivalent to 
3

not fully rescinding the decision. Petition for Review (PFR) File, Tab 1. OPM

has filed a response, PFR File, Tab 5, and the appellant has filed a reply, PFR 

File, Tab 6. The appellant submits evidence that, subsequent to the initial 

decision, OPM provided him the opportunity to and he did indeed make the 

deposit for his post-1956 military service.

2

 PFR File, Tab 8.

¶4 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). An appellant bears the burden 

of proving by preponderant evidence that his appeal is within the Board’s 

jurisdiction. 3 5 C.F.R. § 1201.56(a)(2)(i). 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, 287 F. App’x 864 (Fed. Cir. 

2008). However, when OPM completely rescinds a reconsideration decision, the 

Board no longer retains jurisdiction over the appeal in which that reconsideration 

decision is at issue. Id.

¶5 Here, we find that OPM rescinded its decision, thus divesting the Board of 

jurisdiction. The appellant asserted that he should be allowed to make a deposit 

for his military service. IAF, Tab 1. Below, OPM rescinded its decision, stating 

that the appellant would be entitled to make the deposit. IAF, Tab 6 at 4. On 

review, the appellant submits evidence that he now has made the deposit. PFR 

File, Tab 8. If the appellant is dissatisfied with any subsequent OPM decision 

 2 On petition for review, the appellant submits additional evidence, including a letter 

from OPM that informs him of the required deposit amount, a check that he submitted 

to OPM, and a postal receipt for mailing the check to OPM. PFR File, Tab 8. We 

consider this new and material evidence because it came about after the close of the 

record below and it is material to the issue of OPM’s rescission of its decision. 

5 C.F.R. § 1201.115(d).

3 A preponderance of the evidence is that 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. § 1201.56(c)(2).
4

regarding his annuity, 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 C.F.R. §§ 831.109, 831.110.

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: 

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.
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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 a list of 

attorneys who have expressed interest in providing pro bono representation for 

Merit Systems Protection Board appellants before the court. 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.

______________________________

William D. Spencer

Clerk of the Board