UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

JOHN J. SMITH,

Appellant,

v.

OFFICE OF PERSONNEL 

MANAGEMENT,

Agency.

DOCKET NUMBER

AT-0842-15-0628-I-1

DATE: March 2, 2016

THIS FINAL ORDER IS NONPRECEDENTIAL1

John J. Smith, Jackson, Mississippi, 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 his appeal of the final decision of the Office of Personnel Management 

(OPM) for lack of jurisdiction. Generally, we grant petitions such as this one 

only when: the initial decision contains erroneous findings of material fact; the 

 1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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

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, 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 This matter involves a May 20, 2015 OPM final decision issued pursuant to 

the administrative judge’s March 19, 2015 initial decision remanding the matter 

to OPM for a final appealable decision. See Smith v. Office of Personnel 

Management, MSPB Docket No. AT-0841-15-0229-I-1, Initial Appeal File, Tab 1 

at 4-5; Initial Decision (0229-I-1 ID) at 4-5 (Mar. 19, 2015).

2

 In its May 20, 2015 

final decision, OPM dismissed the appellant’s request for a determination on his 

eligibility for retirement benefits because, among other things, he had not 

submitted an application for retirement benefits and OPM does not give advisory 

 2 In the prior appeal, the appellant challenged OPM’s failure to issue a final appealable 

decision concerning his earliest retirement date. 0229 I-1 ID at 1. The administrative 

judge remanded the matter to OPM with instructions to issue a final appealable decision 

within 90 days. Id. at 1-2. On May 20, 2015, OPM issued a final initial decision 

dismissing the appellant’s request. Smith v. Office of Personnel Management, MSPB 

Docket No. AT-0842-15-06280-I-1, Initial Appeal File (IAF), Tab 1 at 4-5. On May 

26, 2015, the appellant submitted a pleading entitled “Supplement to PFR” challenging 

OPM’s decision, which the regional office docketed as the appeal now on review. IAF,

Tabs 1-2.
3

opinions in the form of decisions. 3 Smith v. Office of Personnel Management, 

MSPB Docket No. AT-0842-15-0628-I-1, Initial Appeal File (IAF), Tab 1 at 4. 

In a show cause order, the administrative judge explained that only an individual 

whose rights or interests under the Federal Employees Retirement Systems 

(FERS) that are affected by a final decision by OPM may request the Board to 

review the decision, and ordered the appellant to file evidence and argument to 

prove that his appeal was within the Board’s jurisdiction. IAF, Tab 7. The 

appellant responded that OPM had failed to answer his question regarding his 

eligibility for immediate retirement and that he would like the administrative 

judge to decide whether he was eligible for voluntary retirement on December 31, 

2014. IAF, Tab 8. In an initial decision dated August 17, 2015, the 

administrative judge dismissed the appeal for lack of jurisdiction, finding that the 

appellant failed to show that he actually had applied to OPM for retirement 

benefits. IAF, Tab 9, Initial Decision (ID) at 4-5. The appellant has filed a 

petition for review of the initial decision, and OPM has responded in opposition. 

Petition for Review (PFR) File, Tabs 1, 5. 

¶3 Generally, the Board has jurisdiction over OPM determinations affecting an 

appellant’s rights or interests under the retirement system only after OPM has 

issued a final or reconsideration decision. Smith v. Office of Personnel 

Management, 114 M.S.P.R. 395, ¶ 8 (2010); 5 C.F.R. § 841.308. The Board, 

however, will take jurisdiction over a retirement-related appeal where OPM has 

refused or improperly failed to issue a final or reconsideration decision. See 

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

such a case, the Board will 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. Id., ¶ 15.

 3 OPM also explained that it does not maintain records on current Federal employees, 

like the appellant, and that such employees must work with their employing agency to 

resolve retirement-related questions. IAF, Tab 1 at 4. 
4

¶4 On review, the appellant asserts that he is challenging the administrative 

judge’s decision to dismiss his appeal of OPM’s “decision to deny [him his] right 

to retire on December 31, 2014.” PFR File, Tab 1 at 2. He further claims that he 

was eligible to retire on December 31, 2014, but his employing agency and OPM 

denied his application for retirement and OPM failed to issue him a final 

decision. Id. at 2. The appellant also appears to argue that the proceeding was 

unfair. Id. at 2-3.

¶5 First, contrary to the appellant’s characterization of the May 20, 2015 final 

OPM decision, OPM did not deny his right to retirement. Id. at 2; IAF, Tab 5 

at 5. Rather, OPM explained that there was no evidence that the appellant had 

applied for immediate retirement and that OPM does not issue advisory opinions 

regarding an employee’s eligibility for retirement. IAF, Tab 5 at 5. 

¶6 Second, contrary to the appellant’s assertion on review, there is no evidence 

that he has applied for immediate retirement, and he thus is not entitled to a 

decision from OPM. Pursuant to the Civil Service Retirement System (CSRS)/ 

FERS Handbook and the instructions provided to the appellant in OPM’s decision 

letter, in order to apply for retirement, an employee must submit an application 

for immediate retirement on a Standard Form (SF) 3107, Application for 

Immediate Retirement, FERS, or an SF-2801, Application for Immediate 

Retirement, CSRS. See CSRS/FERS Handbook (Handbook), Chapter 40, 

Section 40A3.1-1, available at https://www.opm.gov/retirement-services/

publications-forms/csrsfers-handbook/; IAF, Tab 5 at 5. With its May 20, 2015 

decision, OPM enclosed an SF-2801 and SF-3701 for the appellant’s use if he 

wished to apply for retirement benefits under the applicable retirement system. 

Id. at 5-41. However, the appellant does not allege, and there is no evidence

suggesting, that he has ever submitted an SF-3107 or SF-2801. PFR File, Tab 1; 

IAF, Tabs 1, 6, 8. 

¶7 In the proceedings below, the appellant provided a copy of the SF-52 he 

submitted to his agency’s human resources (HR) office requesting a voluntary 
5

retirement effective December 31, 2014, and email correspondence from the HR

specialist informing him that he would not be eligible to retire until he had 

5 years of civilian service, not including his military time. IAF, Tab 6 at 1, 9-10, 

39. He also submitted copies of email correspondence with an OPM 

representative regarding the rules for calculating creditable civilian service, in 

which he insisted that the CSRS/FERS Handbook allowed him to use his military 

service to meet the 5-year minimum civilian service requirement under FERS. Id.

at 27-29. In two emails to OPM, the appellant requested a final appealable 

decision concerning his earliest retirement date. Id. at 27-28. However, these 

measures do not constitute an application for retirement and do not trigger OPM’s 

duty to issue a decision on the appellant’s request for retirement. See Handbook, 

Chapter 40, Section 40A3.1-1. Thus, the appellant is not entitled to a final 

appealable decision from OPM on his eligibility for retirement, and OPM has not 

improperly failed to issue one so as to constitute a constructive denial over which 

the Board could find jurisdiction. See Okello, 120 M.S.P.R. 498, ¶ 14. 

¶8 Third, although the appellant requested that OPM issue an appealable 

decision on his earliest retirement date, he is not entitled to such a determination 

absent an actual application for retirement benefits. As the administrative judge 

explained, OPM is not required to issue an advisory opinion regarding the 

appellant’s eligibility to retire on a certain date. See ID at 4. As such, OPM has 

not acted improperly by failing to issue an advisory opinion on the appellant’s 

request for a determination on his earliest possible retirement date. Likewise, the 

Board is prohibited from issuing an advisory opinion on the appellant’s eligibility 

to retire on a certain date. ID at 4; 5 U.S.C. § 1204(h). Accordingly, we agree 

with the administrative judge that, unless and until the appellant applies for 

immediate retirement and receives a decision from OPM on his application, there 

is no basis to find Board jurisdiction over the appellant’s retirement matter. 

¶9 Finally, we find no merit to the appellant’s claim that the proceeding was 

unfair because the administrative judge “refused to look at the facts” and gave 
6

OPM “months to respond while [he] was given days.” PFR File, Tab 1 at 2-3. In 

making a claim of bias or prejudice against an administrative judge, a party must 

overcome the presumption of honesty and integrity that accompanies 

administrative adjudicators. Thompson v. Department of the Army, 122 M.S.P.R. 

372, ¶ 29 (2015). We find that the appellant’s bare assertions do not meet the 

high standard for establishing bias, and we discern no reversible error by the 

administrative judge. The appellant also has not shown that he requested 

additional time to submit any evidence or argument or that additional time would 

have affected the outcome of the case. The appellant was given 2 weeks to 

respond to the show cause order, which we find to be a reasonable amount of 

time. IAF, Tab 7 at 4. 

¶10 Based on the foregoing, we affirm the initial decision dismissing the appeal 

for lack of jurisdiction.

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 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). 
7

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.

______________________________

William D. Spencer

Clerk of the Board