UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

CLIFFORD S. NASDAHL,

Appellant,

v.

OFFICE OF PERSONNEL 

MANAGEMENT,

Agency.

DOCKET NUMBER

AT-0831-16-0337-I-1

DATE: October 19, 2016

THIS FINAL ORDER IS NONPRECEDENTIAL1

Clifford S. Nasdahl, Memphis, Tennessee, pro se.

Kristine Prentice, 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 for lack of jurisdiction. Generally, we grant petitions such 

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

fact; the initial decision is based on an erroneous interpretation of statute or 

 

1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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

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. Except as expressly MODIFIED by 

this Final Order to clarify the grounds for dismissal, we AFFIRM the initial 

decision. 

DISCUSSION OF ARGUMENTS ON REVIEW

¶2 In this appeal, the appellant contended that the Office of Personnel 

Management (OPM) had denied him a waiver of interest he claims that he accrued 

as a result of being placed in the wrong retirement system. Initial Appeal File 

(IAF), Tab 1. He requested a hearing. Id. His submission did not include any 

documentation from OPM regarding his appeal. In its response, OPM noted that 

its file on the matter did not contain a final decision regarding the issue the 

appellant had raised in his Board appeal. IAF, Tab 6 at 4. Instead, OPM asserted 

that its file included a decision issued under the authority of the Federal 

Erroneous Retirement Coverage Corrections Act (FERCCA) and that the decision 

was not appealable to the Board. Id. at 4-6; 5 C.F.R. § 839.1303 (OPM decisions 

under 5 C.F.R. part 839, subpart L, Discretionary Actions by OPM, may not be 

appealed). OPM further asserted that it “must review the appellant’s file to 

determine the course of action on his request for waiver of interest on a service 

credit payment in accordance with the appropriate statute and regulations, while 
3

also preserving his due process rights.” IAF, Tab 6 at 4. The appellant made no 

further submissions below save for registration as an e-filer. IAF, Tab 4. 

¶3 The administrative judge dismissed the appeal for lack of jurisdiction on the 

written record without holding a hearing because the record showed that OPM 

had yet to issue a final decision in this matter. IAF, Tab 7, Initial Decision (ID) 

at 2 (citing Autrey v. Office of Personnel Management, 27 M.S.P.R. 130 (1985) 

(finding that the Board lacks jurisdiction over retirement matters in the absence of 

a final decision from OPM)). He explained his understanding that OPM would 

issue a final decision in this matter and that once it does so, that decision would

be appealable to the Board. ID at 2. 

¶4 In his petition for review, the appellant claims that he has been unable to 

contact the OPM representative responsible for his claim and that he has not 

received anything further from OPM. Petition for Review (PFR) File, Tab 1 at 1. 

With his petition for review, he includes a copy of OPM’s response to the 

administrative judge’s acknowledgment order and a copy of the initial decision. 2 

Id. at 5-14. OPM responds in opposition to the appellant’s petition for review. 

PFR File, Tab 4. 

¶5 The appellant bears the burden of proof on retirement matters and must 

show by preponderant evidence that he is entitled to receive the benefits he seeks.

Cheeseman v. Office of Personnel Management, 791 F.2d 138, 140-41 (Fed. Cir.

1986); 5 C.F.R. § 1201.56(b)(2)(i)(A). When there is a pure question of law, the 

appeal may be decided without a hearing. Carew v. Office of Personnel 

Management, 878 F.2d 366, 367-68 (Fed. Cir. 1989); Jezouit v. Office of 

Personnel Management, 97 M.S.P.R. 48, ¶ 12-13 (2004), aff’d, 121 F. App’x 865 

 

2

The appellant filed an additional pleading on August 30, 2016. The Board’s regulations 

do not provide for pleadings other than a petition for review, a cross petition for review, a 

response to the petition for review or cross petition for review, and a reply to a response . 

PFR File, Tab 5; see 5 C.F.R. § 1201.114(a)(5). Because the appellant failed to file a 

motion with and obtain leave from the Clerk of the Board prior to filing his additional 

pleading, the pleading was rejected and returned to the appellant without consideration. 

PFR File, Tab 5. 
4

(Fed. Cir. 2005). As set forth below, the Board lacks jurisdiction over the 

appellant’s appeal, regardless of whether OPM has issued a final decision. 

¶6 Here, the appellant requested an interest waiver, IAF, Tab 1, but OPM has a 

statutory obligation to charge interest for service credit deposits. Pursuant to 

5 U.S.C. § 8334(e), interest accrues annually and is compounded annually, until 

the appellant makes the deposit. Pursuant to 5 U.S.C. § 8411(f), an employee 

may not be allowed credit for prior service unless the employee makes the 

appropriate deposit with interest. Moreover, based on those statutes, as OPM 

explained, IAF, Tab 6 at 5, there is no authority for the agency to waive interest. 

To rectify a FERCCA error, OPM also has discretionary authority to reimburse 

certain out-of-pocket expenses, but there is no provision for an interest waiver. 

5 C.F.R. §§ 839.1201-.1204. But, even assuming the agency had discretionary 

authority to provide the appellant with some form of relief, there would be no 

Board jurisdiction over its decision. On the contrary, OPM makes those decisions 

in its sole discretion. 5 C.F.R. §§ 839.1201(a), 839.1202(a), 839.1203(a). Such 

decisions are final and conclusive and are not subject to administrative or judicial 

review. 5 C.F.R. §§ 839.1302-.1303 (claimants may appeal OPM FERCCA

decisions except an OPM decision under subpart L). 

¶7 Accordingly, for the reasons set forth above, we find that the Board lacks 

jurisdiction over the appellant’s appeal. 

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 review of this final decision by the U.S. Court of Appeals for the Federal
5

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 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
6

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.

______________________________

Jennifer Everling

Acting Clerk of the Board