UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

WALTER E. HYDE,

Appellant,

v.

OFFICE OF PERSONNEL 

MANAGEMENT,

Agency.

DOCKET NUMBER

DA-0845-14-0491-I-1

DATE: February 10, 2015

THIS FINAL ORDER IS NONPRECEDENTIAL1

Walter E. Hyde, Killeen, Texas, pro se.

Karla W. Yeakle, Washington, D.C., for the agency.

BEFORE

Susan Tsui Grundmann, Chairman

Anne M. Wagner, Vice 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 of a reconsideration decision issued 

by the Office of Personnel Management (OPM). 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 1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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 

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 administrative judge dismissed this appeal for lack of jurisdiction 

because OPM rescinded the reconsideration decision that was the subject of this 

appeal, and the appellant failed to respond to the administrative judge’s order to 

show cause why the case should not be dismissed. Initial Appeal File (IAF), Tab 

10 at 4, Tab 11, Tab 12, Initial Decision (ID) at 2. The appellant has filed a 

petition for review of the initial decision, arguing the merits of his appeal without 

addressing the issue of jurisdiction before the Board. Petition for Review (PFR) 

File, Tab 1. OPM has responded in opposition to the appellant’s petition. PFR 

File, Tab 4.

¶3 The Board’s jurisdiction is not plenary; it 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 Board generally 

has jurisdiction to adjudicate an individual’s rights and interests under the Civil 

Service Retirement System only after OPM has rendered a final or 

reconsideration decision on the issue in question. See 5 U.S.C. § 

8347(d)(1); 5 C.F.R. § 831.110. However, the Board may assume jurisdiction 
3

under particular circumstances if OPM has failed to render a final decision or 

improperly denied the individual an opportunity for reconsideration. A “final 

decision” is a decision OPM issues after a request for reconsideration of an initial 

decision, or a decision OPM designates as final. See 5 C.F.R. § 831.109(f). In 

either case, the decision should set forth the individual’s Board appeal rights. See

id. The appellant has the burden of proving jurisdiction by preponderant 

evidence. See 5 C.F.R. § 1201.56(a)(2). 

¶4 In this case, the administrative judge dismissed the appeal because OPM 

rescinded its reconsideration decision. ID at 2. We note that, in the letter 

rescinding the reconsideration decision, OPM agreed to issue a new final decision 

addressing the appellant’s concerns and provide new appeal rights. IAF, Tab 10 

at 4. On review, the appellant submits no evidence or argument indicating that 

OPM has completed its proceedings and issued a final decision or a new 

reconsideration decision with appeal rights. Moreover, he does not dispute that 

OPM rescinded its May 19, 2014 reconsideration decision, which divested the 

Board of jurisdiction over this appeal. See Tamayo v. Office of Personnel 

Management, 56 M.S.P.R. 620, 622 (1993). Because the appellant has shown no 

basis for finding jurisdiction over his appeal, we deny the appellant’s petition for 

review. 

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
4

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.

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