N OTE : This disposition is nonprecedential. 

# United States **Court of Appeals**  **for the Federal Circuit**

______________________
RONALD KEITH WATKINS , Petitioner

v.

MERIT SYSTEMS PROTEC TION BOARD, Respondent

______________________

2018

- 1420

______________________ Petition for review of the Merit Systems Protection Board in No. DC

- 0831

- 18

- 0148 -I- 1.

______________________

Decided: June 8 , 2018

______________________

R ONALD K EITH W ATKINS , Silver Spring, MD, pro se.

T ARA J EAN K ILFOYLE , Office of the General Counsel, Merit Systems Protection Board, Washington, DC, for respondent. Also represented by K ATHERINE M. S MITH

.

______________________
Before N EWMAN , D YK , and T ARANTO , Circuit Judges.

P ER C URIAM

. In October 2017, Ronald K eith Watkins received a decision from the United States Office of Personnel Ma n-WATKINS v. MSPB 2

agement (OPM) denying his request for an immediate (as opposed to deferred) Civil Service Retirement System retirement annuity. He appealed to the Merit Systems Protection Board. The assigned administrative judge of the Board dismissed Mr. Watkins’s appeal on two grounds

— that the Board lacked jurisdiction

, and that this appeal was duplicative of an earlier still

- pending appeal on th e same claim . The administrative judge explained that OPM had withdrawn the October 2017 decision and also that the same retirement

- annuity claim had been decided by OPM earlier and Mr. Watkins’s separate appeal from that earlier decision was currently pe nding before the full Board. Watkins v. Office of Pers . Mgm t. , 2018 WL 400554 (2018). We affirm.

I

Mr. Watkins began working for the government of the District of Columbia in 1981. Before his employment was terminat ed in February 2003

, he made protected whistl eblowing disclosures to the District of Columbia Inspector General’s Office and to the United States Attorney’ s Office for the District of Columbia. As a result, Mr. Watkins successfully brought a suit under the District of Columbia Whistleblower Protection Act and was awarded damages and back pay.
In August 2015, Mr. Watkins submitted an Applic ation for Immediate Retirement, Standard F orm 2801, to OPM

. On December 19, 2015, OPM issued an initial decision to Mr. Watkins denying his c laim , and it affirmed that denial in a final decision issued on February 8, 2016. Mr. Watkins appealed the February 2016 decision to the Board, and an administrative judge issued an initial decision affirming the denial

. Watkins v. O ffice of Pers

. Mgt.

, 2016 WL 3988775 (2016)

. In July 2016, Mr. Wa tkins filed a petition for review seeking the full Board ’s review of that decision. When Mr. Watkins sought relief from this court , citing inaction by the Board because itWATKINS v. MSPB 3

lacked a quorum, this court denied the request. Watkins v. Office of Pers

. Mg m t. , No. 17

- 1516, Order (March 23, 2017).
On October 18, 2017, while Mr. Watkins ’s petition for review was still pending (as it still is)

, OPM issued Mr. Watkins a second initial decision. That initial decision denied the same claim for immediate retirement and told Mr. Watkins that he could request reconsideration. It also stated that he was eligible for a deferred retirement commencing August 18, 2016, for which OPM would begin payments upon receiving a pr operly completed SF1496A form.
Mr. Watkins appealed th e October 2017 initial dec ision to the Board in November 2017

. The assigned a dministrative judge, concerned about lack of finality, order ed both Mr. Watkins and OPM to address the r eviewability of th e October 2017 decision. In response, OPM stated that the decision was indeed not a final decision, that it was duplicative of the earlier February 2016 decision, and that, because of the duplicativeness, OPM “r escind s the initial decision dated October 18, 2017 ” as “issued in error.” Supp. App. 41.

The administrative judge dismiss ed Mr. Watkins’s appeal in January 2018

. The administrative judge re asoned that it was undisputed that the October 2017 decision was not a final decision ; contrary to Mr. Wa tkins ’s contention, OPM had not refused to adjudicate his claim; and in any event, any jurisdiction the Board had ended when OPM rescinded the October 2017 decision. Further, and in the alternative, the administrative judge ruled that dismissal was proper even if Mr. Watkins was correct that OPM was now refusing to issue a final dec ision on his claim. The administrative judge cited Board authorities establishing that the appeal should be di smissed in the interest of adjudicatory efficiency because of the 2016 appeal on the same claim, which was alreadyWATKINS v. MSPB 4

rejected by an administrative judge and still pending before the full Board.
On February 16, 2018, t he administrative judge’s January 2018 initial decision became the final decision of the Board as to the November 2017 appeal

. On that day, Mr. Watkins ’s already

- filed petition for review to this court beca me timely. See 5 U.S.C. §7703( b )( 1 )( A) ; Jones v. Dep’ t of Health & Human Servs. , 834 F.3d 1361, 1365 (Fed. Cir. 2016) (“ when a petitioner files a petitio n for revi ew with this court before an AJ’ s initial decisio n becomes final, the petitioner’ s appeal ripens once that initial decision becomes the final decision of the MSPB ”)

. We have jurisdiction under 28 U.S.C. § 1295(a)( 9).

II
Under 5 U.S.C. § 7703(c ), we review the decision b efore us to determine if it is “ arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; obtained without procedures required by law; or unsupported by substantial evidence .” Ward v. U.S. Postal Se rv. , 634 F.3d 1274, 1278 (Fed. Cir. 2011) (inte rnal quotation marks and citations omitted)

. We have been shown no such error justifying disturbance of the administrative judge’s decision in this matter. With respect to both the Board

- jurisdiction and efficiency grounds, the administrative judge did not err in relying on the existence of the sti ll- pending earlier appeal from OPM’s earlier final decision on the same claim for an immediate retirement annuity.

W hen reviewing determinations regarding an ind ividual’s rights or interests under the Civil Service R etirement System

, the Board has jurisdic tion only after OPM issues a final decision, and an initial decision is not final when it is still subject to reconsideration— as the October 2017 initial decision expressly was. See 5 C.F.R. §§ 831.109(f)(1), 831.11 0 . Although in some circumstan ces “ an i nitial decision subject to reconsideration or theWATKINS v. MSPB 5

absence of any decision at all may [] constitute a final administrative action or decisi on,” Okello v. Office of Pers

. Mg m t. , 120 M.S.P.R. 498, 502

– 04 (2014) (internal quot ation marks omitted) ; see McNeese v. Office of Pers. Mgmt.

, 61 M.S.P.R. 70, 74, aff’d , 40 F. 3d 1250 (Fed. Cir. 1994) (Table) , t he Board has concluded that such an exception does not appl y when OPM has already issued a separate final decision on the same issues

, Mu yc o v. Office of Pers

. Mg m t. , 104 M.S.P.R. 557, 562 (2007). We see no error in applying those principles here, where OPM actually rescinded the October 2017 initial decision at issue ; the administrative judge reasonably treated the earlier, 2016 OPM decision on the same issues as foreclosing an arg ument that OPM refused to decide the issues. And even aside from Board jurisdiction, we have determined in a past non

- precedential opinion that when an appellant files an appeal with the Board that presents the same claims as an earlier appeal and the earlier appeal remains pending before the full Board, an administrative judge does not violate the law in dismiss ing the later appeal in the interest of adjudicatory efficiency. Boyd v. Dep’t of Labor , 561 Fed. Appx. 978, 982 (Fed. Cir. 201 4) (citing Zgonc v. Dep’ t of Defense , 103 M.S.P.R. 666, 669 (2006) ). We have no reason to draw a different conclusion here.
Because the Board had proper reasons to dismiss the appeal, we need not address the merits of Mr. Watkins’s contentions. He presum ably has had or will have an opportunity to present those contentions in his first appeal, still pending before the Board.

III
For the foregoing reasons, we affirm the decision of the Board in Mr. Watkins’s November 2017 appeal

. No costs.

AFFIRMED