UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

BARRY J. GARNER,

Appellant,

v.

DEPARTMENT OF THE ARMY,

Agency.

DOCKET NUMBER

DE-0842-14-0476-I-1

DATE: February 5, 2015

THIS FINAL ORDER IS NONPRECEDENTIAL1

Janice L. Jackson, Leavenworth, Kansas, for the appellant.

Anne E. Hinkebein, Esquire, Fort Leavenworth, Kansas, 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 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 1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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 

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. Except as 

expressly modified by this Final Order, we AFFIRM the initial decision.

BACKGROUND

¶2 Effective April 7, 2001, the appellant resigned from his law enforcement 

officer (LEO) position as a GS-11 Regulatory Supervisory Specialist with the 

Department of Justice’s Bureau of Prisons (BOP) after approximately 16 years of 

service. 2

 IAF, Tab 7 at 63. On October 12, 2010, the appellant was appointed to 

a secondary LEO position as a GS-12 Regulatory Supervisory Specialist with the 

agency’s Military Correctional Complex (MCC) in Fort Leavenworth, Texas. Id.

at 35, 40.

¶3 On or before May 1, 2014, the appellant contacted the agency’s Army 

Benefits Center (ABC) and inquired about a potential retirement date of 

January 31, 2015, under LEO special retirement coverage. See IAF, Tab 7 at 34; 

see also 5 U.S.C. § 8412(d) (establishing special retirement eligibility for LEOs 

under the Federal Employees Retirement System). By email dated May 1, 2014, 

 2 The “Service History Detail” for the appellant indicates that he was employed by BOP 

from September 2, 1984, to January 15, 1985, and from December 8, 1985, until his 

April 7, 2001 resignation. Initial Appeal File (IAF), Tab 11 at 15. The Standard Form 

50 documenting the appellant’s resignation identifies his service computation date as 

July 24, 1985. IAF, Tab 7 at 63.
3

an ABC Human Resources (HR) Specialist informed the appellant that he was 

ineligible to retire on January 31, 2015. IAF, Tab 1 at 33-34. On May 28, 2014, 

the appellant sent an email to an HR Specialist in Fort Leavenworth’s Civilian 

Personnel Advisory Center (CPAC) seeking assistance concerning his “retirement 

problem.” Id. at 31. In response, the CPAC HR Specialist sent the appellant an 

email on May 30, 2014, informing him that, due to his break in service of greater 

than 3 days, he was not eligible to retire under LEO special retirement coverage 

in January 2015. Id. at 29-30; see 5 C.F.R. § 842.803(b).

¶4 During June 2014, the appellant communicated with the CPAC HR 

Specialist and the MCC’s Resource Manager via email concerning his eligibility 

for LEO special retirement coverage. See IAF, Tab 1 at 21-29. By email dated 

June 19, 2014, the Resource Manager notified the appellant that he was ineligible 

for LEO special retirement coverage because of the break in service between his 

position with BOP and his current position. Id. at 22-23.

¶5 On July 15, 2014, the appellant filed a Board appeal and requested a 

hearing, alleging that the agency had improperly denied his request for LEO 

special retirement coverage. IAF, Tab 1 at 2-3. The administrative judge issued 

a show cause order in which he stated that the Board might not have jurisdiction 

over this appeal because it appeared that the agency had not issued a final 

decision denying the appellant’s request for LEO service credit. 3 IAF, Tab 8 at 2. 

 3 In the show cause order, the administrative judge indicated that the relevant regulation 

for purposes of determining the Board’s jurisdiction over this appeal is 5 C.F.R. 

§ 842.807(a), which pertains to the denial of an employee’s request for approval of a 

position as a secondary position. See IAF, Tab 8 at 2. It is undisputed, however, that 

the appellant’s position is a secondary LEO position. See IAF, Tab 7 at 40. The 

appellant is alleging that the agency improperly denied him LEO special retirement 

coverage due to his failure to satisfy the conditions in 5 C.F.R. § 842.803(b) as a result 

of his break in service. See IAF, Tab 1 at 9. Consequently, as the administrative judge 

made clear in the initial decision, the Board’s jurisdiction in this appeal is governed by 

5 C.F.R. § 842.807(b), which pertains to the denial of LEO special retirement coverage 

to an individual serving in an approved secondary LEO position because of his failure 

to meet the conditions in 5 C.F.R. § 842.803(b). See IAF, Tab 12, Initial Decision (ID) 

at 2.
4

Accordingly, the administrative judge directed the appellant to submit evidence 

and argument to show that the Board has jurisdiction over his appeal. Id. In 

response, the appellant asserted that the Board has jurisdiction over this appeal 

based on the May 30, 2014 email from the CPAC HR Specialist informing him 

that he was not eligible for LEO special retirement coverage because of his break 

in service. IAF, Tab 11; see IAF, Tab 1 at 29-30.

¶6 Without holding the requested hearing, the administrative judge issued an 

initial decision dismissing the appeal for lack of jurisdiction. ID at 1, 3. The 

administrative judge found that nothing in the record constitutes a final decision 

by the agency concerning the appellant’s special retirement coverage, and that the 

Board therefore lacks jurisdiction over this appeal. ID at 3. The administrative 

judge stated that the dismissal of the appeal was without prejudice to refiling 

once the appellant receives a final agency decision on his request for LEO 

retirement coverage or, alternatively, if the agency refuses to issue such a 

decision. ID at 3 (citing Scott v. Department of the Treasury, 71 M.S.P.R. 42, 

46-47 (1996)). 

¶7 The appellant has filed a petition for review. Petition for Review (PFR) 

File, Tab 1. The agency has filed a response in opposition to the petition for 

review. PFR File, Tab 3.

ANALYSIS

¶8 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). As previously noted, 

5 C.F.R. § 842.807(b) affords the Board jurisdiction over “[t]he final decision of 

an agency head denying an individual [LEO special retirement] coverage while 

serving in an approved secondary position because of failure to meet the 

conditions in section 842.803(b) . . . .”
5

¶9 Based on our review of the record, we agree with the administrative judge 

that the record does not contain a final decision by the agency regarding the 

appellant’s request for LEO special retirement coverage. See ID at 2. Although 

the record includes emails from various agency employees informing the 

appellant that he is not eligible for LEO special retirement coverage, none of 

those emails can be properly characterized as a final decision so as to provide the 

Board with jurisdiction over this appeal pursuant to 5 C.F.R. § 842.807(b). See

IAF, Tab 1 at 20-23, 29-30, 33-34.

¶10 On review, the appellant argues for the first time that the following 

statement in the agency’s August 14, 2014 response to his appeal constitutes a 

“final decision” so as to provide the Board with jurisdiction over this appeal: 

“The Agency’s interpretation that Appellant is not eligible for retirement on 

January 31, 2015[,] and further that he is not eligible for special retirement 

coverage is correct.” PFR File, Tab 1 at 3; see IAF, Tab 7 at 8.

¶11 We find the appellant’s argument unpersuasive. The appellant does not cite 

any authority, nor do we know of any, to support his apparent contention that 

arguments made by an agency representative in response to an appeal qualify as a 

final decision under 5 C.F.R. § 842.807(b). Therefore, this argument provides no 

basis for disturbing the administrative judge’s finding that the Board lacks 

jurisdiction over this appeal. 4

¶12 As noted above, rather than dismissing this appeal outright, the 

administrative judge dismissed the appeal without prejudice to refiling. ID at 3. 

An administrative judge has wide discretion to control the proceedings before him 

and the dismissal of an appeal without prejudice to refiling is a procedural option 

committed to his sound discretion. Argabright v. Department of Defense, 

113 M.S.P.R. 152, ¶ 6 (2010); Selig v. Department of the Army, 102 M.S.P.R. 

 4 We do not address the appellant’s remaining arguments on review, which pertain to 

the merits of his appeal and are immaterial to the dispositive jurisdictional issue. See 

PFR File, Tab 1 at 2-3, 4.
6

189, ¶ 6 (2006). Nevertheless, an administrative judge must exercise his 

discretion in a manner consistent with Board policy, including the Board’s policy

that cases be adjudicated expeditiously. See Schulte v. Department of the Air 

Force, 100 M.S.P.R. 141, ¶ 5 (2005). The Board has held that when an 

administrative judge dismisses a case without prejudice, he must set a date certain 

for refiling, rather than leaving the refiling date open or ambiguous. Thomas v. 

Department of the Treasury, 115 M.S.P.R. 224, ¶ 6 (2010). 

¶13 Here, the administrative judge did not set a date certain for refiling the 

appeal, opting instead to dismiss the appeal without prejudice to refiling once the 

appellant receives a final agency decision on his request for LEO special 

retirement coverage or if the agency refuses to issue such a decision. ID at 3. 

Accordingly, we affirm the initial decision as modified and dismiss the appeal 

without prejudice to refile by the appellant 90 days after the date of this 

Nonprecedential Final Order, or within 30 days of the date of the appellant’s 

receipt of a final agency decision regarding the appellant’s request for LEO 

special retirement coverage, whichever date occurs earlier. See, e.g., Selig, 

102 M.S.P.R. 189, ¶ 8 (modifying the initial decision to allow the appellant to 

refile his appeal within 120 days of the date of the Opinion and Order or within 

30 days of the date of issuance of the final decisions regarding his application for 

benefits, whichever date occurs earlier). In the event that the agency has already 

issued a final decision and the appellant has received that decision, the appellant 

must refile his appeal within 30 days of the date of this Nonprecedential Final 

Order.

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:
7

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.

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
8

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