UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

BILLY G. GARNER,

Appellant,

v.

OFFICE OF PERSONNEL 

MANAGEMENT,

Agency.

DOCKET NUMBER

DA-0845-15-0203-I-1

DATE: September 18, 2015

THIS FINAL ORDER IS NONPRECEDENTIAL1

Billy G. Garner, Cade, Louisiana, pro se.

Karla W. Yeakle, 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 his Federal Employees’ Retirement System (FERS) disability 

retirement benefits appeal for lack of jurisdiction. Generally, we grant petitions 

such as this one only when: the initial decision contains erroneous findings of 

 1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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

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. 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). 

¶2 The appellant entered into disability retirement under FERS effective 

December 20, 2005, and began receiving annuity payments the following year.

Initial Appeal File (IAF), Tab 6 at 25, 36, 42, 57-58. In May 2014, the Office of 

Personnel Management (OPM) notified the appellant that it had been overpaying 

him for the past 8 years because it had neglected to figure his Social Security 

benefits into the annuity calculation. Id. at 18-19, 24. It reduced his monthly 

annuity from $1,498.00 to $843.00, and informed him that it also intended to 

collect $59,995.14 in overpayment. Id. at 18, 24. OPM notified the appellant of 

his right to request reconsideration within 30 days. Id. On June 9, 2014, the 

appellant timely requested reconsideration of the decision and waiver of any 

overpayment. Id. at 9-13.

¶3 Having heard nothing from OPM for 7 months, the appellant filed the 

instant Board appeal on January 14, 2015, requesting that the Board reverse 

OPM’s decision. IAF, Tab 1 at 1-4. The appellant did not request a hearing. Id. 

at 1. OPM responded, moving to dismiss the appeal on the basis that it had not 

yet rendered a final decision but still intended to do so. IAF, Tab 7 at 4. The 
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appellant did not respond to OPM’s motion, and the administrative judge 

dismissed the appeal for lack of jurisdiction. IAF, Tab 9, Initial Decision (ID) at 

2, 4. The appellant has filed a petition for review, Petition for Review (PFR) 

File, Tab 1, OPM has filed a response, PFR File, Tab 4, and the appellant has 

filed a reply, PFR File, Tab 5.

¶4 The Board’s jurisdiction to adjudicate FERS appeals derives from statute:

[A]n administrative action or order affecting the rights or interests of 

an individual or the United States under [FERS] administered by 

[OPM] may be appealed to the Merit Systems Protection Board under 

procedures prescribed by the Board.

5 U.S.C. § 8461(e)(1).

¶5 For purposes of OPM decisions under FERS, the Board has recognized three 

situations in which OPM is deemed to have issued an appealable action or order. 

Okello v. Office of Personnel Management, 120 M.S.P.R. 498, ¶ 14 (2014). Two 

of those situations are prescribed by OPM’s regulations: OPM may either (1) 

issue a reconsideration decision under 5 C.F.R. § 841.306 or (2) issue an initial 

decision without reconsideration rights under 5 C.F.R. § 841.307. Either type of 

decision is final and appealable to the Board under 5 C.F.R. § 831.308. See

5 C.F.R. §§ 831.306(e), .307. The third situation derives from Board case law. 

Specifically, 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. E.g., McNeese v. Office of Personnel Management, 61 M.S.P.R. 70, 74, 

aff'd sub nom. McNeese v. Merit Systems Protection Board, 40 F.3d 1250 (Fed. 

Cir. 1994) (Table). In other words, even an initial decision subject to 

reconsideration or the absence of any decision at all may, under appropriate 

circumstances, constitute a final administrative action under 5 U.S.C. 

§ 8461(e)(1).

¶6 In this case, it is undisputed that OPM has not issued a final decision under 

5 C.F.R. § 841.308. The appellant, however, argues that OPM’s failure to do so 

constitutes a final, appealable administrative action under the Board’s case law. 
4

Specifically, he argues that, contrary to the administrative judge’s finding below, 

he did contact OPM multiple times prior to filing his Board appeal. PFR File, 

Tab 1 at 5; ID at 3. He has attached copies of letters to OPM dated September 30, 

2014, and October 5, 2014, asking for a decision on his reconsideration request.

2

 

PFR File, Tab 1 at 9-10. The appellant argues that this case is like Okello, 

120 M.S.P.R. 498, in which the Board found 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. 

PFR File, Tab 1 at 3-5, Tab 5 at 2.

¶7 We disagree. OPM is the agency with primary statutory authority to 

adjudicate FERS annuity cases and to issue related regulations. Only under 

extraordinary circumstances will the Board assume jurisdiction outside the plain 

language of those regulations. See Okello, 120 M.S.P.R. 498, ¶ 15. We 

acknowledge that the appellant waited a significant amount of time for OPM’s 

reconsideration decision before filing his Board appeal. 3

 We also acknowledge 

that the appellant twice contacted OPM to inquire about the status of his 

reconsideration request and that OPM failed to respond to the appellant’s 

inquiries. IAF, Tab 1 at 1; PFR File, Tab 1 at 5, 9-10. However, the facts of this 

case do not approach the grievous circumstances present in Okello, which 

 2 The Board will not normally consider evidence submitted for the first time with the 

petition for review absent a showing that it was unavailable before the record was 

closed despite the party’s due diligence. Avansino v. U.S. Postal Service, 3 M.S.P.R. 

211, 214 (1980). However, in light of the appellant’s pro se status and the lack of 

timely notice below that this information would be relevant to the jurisdictional issue, 

we have considered the letters that the appellant filed for the first time on review. 

PFR File, Tab 1 at 9-10; see McCray v. Department of the Navy, 80 M.S.P.R. 154, ¶ 7 

(1998) (the Board will consider evidence filed for the first time on review when the 

appellant was not notified of what is required to establish jurisdiction until the issuance 

of the initial decision).

3 OPM’s continued delay in issuing a reconsideration decision may be attributable to the 

ongoing litigation in this case. See Okello, 120 M.S.P.R. 498, ¶ 16 n.4; McNeese, 

61 M.S.P.R. at 74.
5

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

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

of adjudicating the appellant’s reconsideration request. 120 M.S.P.R. 498, 

¶¶ 3-11. Nor do the facts of this case indicate that OPM intends not to issue any 

further decision in this matter. Cf., e.g., Luna v. Office of Personnel 

Management, 89 M.S.P.R. 465, ¶ 9 (2001); DoPadre v. Office of Personnel 

Management, 69 M.S.P.R. 346, 351 (1996); Richards v. Office of Personnel 

Management, 29 M.S.P.R. 310, 312 (1985). To the contrary, OPM stated plainly 

below, and on review, that it will issue a final decision with notice of Board 

appeal rights once the instant appeal is dismissed. IAF, Tab 7 at 4; PFR File, Tab 

4 at 4. At this stage of the proceedings, we must accept OPM’s assertions at face 

value. See Fagone v. Office of Personnel Management, 85 M.S.P.R. 49, ¶ 11 

(2000) (the Board accepted OPM’s assertion that it was willing to issue a final 

decision upon the conclusion of the Board appeal).

¶8 The appellant also argues that the administrative judge treated OPM more 

favorably by excusing the untimeliness of its response to the acknowledgment 

order. PFR File, Tab 1 at 6. We agree with the appellant that OPM’s response to 

the acknowledgment order was significantly untimely. IAF, Tab 2 at 1, 6, Tab 7.

However, an administrative judge has broad discretion to govern the proceedings 

before him, including the authority to receive relevant evidence. 5 C.F.R. 

§ 1201.41(b)(3). We find that the administrative judge did not abuse his 

discretion in accepting OPM’s untimely response to the acknowledgment order, 

especially considering that OPM’s response implicated the Board’s jurisdiction. 

See Pennington v. Department of Veterans Affairs, 57 M.S.P.R. 8, 9 (1993)

(jurisdiction cannot be conferred by any action or inaction of the parties, and the 

issue of jurisdiction may be raised at any time in the course of a Board appeal).

Moreover, the appellant did not object to OPM’s untimely filing below, and it is 

too late for him to do so on review. See White v. U.S. Postal Service, 

64 M.S.P.R. 261, 267 (1994). To the extent that the appellant is arguing that the 
6

motion to dismiss that accompanied the agency’s response was untimely, we 

disagree. The acknowledgment order required only that a narrative response and 

copies of all relevant documents be filed within 20 days. IAF, Tab 1 at 6, 13. It 

did not set a deadline for filing motions.

¶9 The appellant also argues that he missed the telephonic status conference 

below because he did not receive notice of its scheduling until after it had already 

passed. PFR File, Tab 1 at 7; IAF, Tabs 5, 8. The appellant informed the 

administrative judge of this fact and expressed his desire to reschedule the 

conference so that the parties could discuss settlement options. PFR File, Tab 1 

at 7; IAF, Tab 8 at 1. The administrative judge, however, did not do so. PFR 

File, Tab 1 at 7. We find that the appellant has not established that his 

substantive rights were prejudiced by the administrative judge’s failure to 

reschedule the status conference. See Shafer v. Department of the Air Force,

46 M.S.P.R. 164, 171-72 (1990), aff’d, 935 F.2d 280 (Fed. Cir. 1991); Karapinka 

v. Department of Energy, 6 M.S.P.R. 124, 127 (1981) (holding 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). The appellant has 

not shown that the result of the appeal would have been different had the status 

conference taken place, and, even if the status conference might have helped to 

facilitate a settlement, we find that the appellant did not have a substantive right 

to a settlement.

¶10 To the extent that the appellant is arguing that the administrative judge was 

biased against him, he must overcome the presumption of honesty and integrity 

which accompanies administrative adjudicators. PFR File, Tab 1 at 6-7; Oliver v. 

Department of Transportation, 1 M.S.P.R. 382 (1980). An administrative judge’s 

conduct during the course of a Board proceeding warrants a new adjudication 

only if the administrative judge’s comments or actions evidence “a deep-seated 

favoritism or antagonism that would make fair judgment impossible.” Bieber v. 

Department of the Army, 287 F.3d 1358, 1362-63 (Fed. Cir. 2002). We find that 
7

the administrative judge’s conduct of the proceedings below does not satisfy this 

standard.

¶11 Accordingly, we affirm the initial decision’s finding that the Board lacks 

jurisdiction over this appeal.

NOTICE TO THE APPELLANT REGARDING

YOUR FURTHER REVIEW RIGHTS

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

States 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 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.
8

If you are interested in securing pro bono representation for your appeal to 

the 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.

______________________________

William D. Spencer

Clerk of the Board