Rufina I. Elinzano, Petitioner, v. Merit Systems Protection Board, Respondent, 56 F.3d 83 (Fed. Cir. 1995)

Rufina I. Elinzano seeks review of the final decision of the Merit Systems Protection Board, Docket No. SE0831940205-I-1, dismissing her appeal for lack of jurisdiction after the Board permitted the Office of Personnel Management (OPM) to withdraw its reconsideration decision. We affirm.

BACKGROUND

Ms. Elinzano applied to OPM for a retirement annuity, claiming that her service with the Philippine Insular Government was creditable service for retirement purposes under the Civil Service Retirement System (CSRS). OPM denied the application and Ms. Elinzano sought reconsideration. In a reconsideration decision issued on September 22, 1993, OPM affirmed its denial.

On December 13, 1993 she filed an appeal to the Board. By letter dated January 24, 1994 OPM moved that the appeal be dismissed on the ground that OPM was rescinding its reconsideration decision, and would obtain "additional payroll and personnel records" that might affect the prior decision. OPM stated that it would issue a new reconsideration decision upon receipt of the additional information. The administrative judge (AJ) issued an order to show cause as to why the appeal should not be dismissed; the AJ did not receive a response from petitioner, who apparently objected to the dismissal by writing to an administrative judge who had no connection with this case.

The AJ issued an initial decision on March 31, 1994 dismissing the appeal for lack of jurisdiction. Ms. Elinzano appealed to the Board, which issued a final decision on October 27, 1994. This appeal followed.

DISCUSSION

The Board's jurisdiction is limited to that granted to it by law, rule, or regulation. 5 U.S.C. §7701(a) (1988). The Board may not hear an appeal by an individual affected by an OPM action under the CSRS until a final reconsideration decision has been issued by OPM. See 5 U.S.C. § 8347(d) (1) (1988); 5 C.F.R. Secs.831.109, 831.110 (1994).

The petitioner argues that the Board should have retained jurisdiction and decided the case. We agree with petitioner that the Board was not required to dismiss the case. However, the dismissal was an efficient way to return the matter to OPM, based on OPM's representation that it intended to obtain and review additional information. Thus we do not reach the question of whether OPM was authorized to take the unilateral action of rescission of its reconsideration decision while the case was sub judice, for it was within the Board's discretion to ratify OPM's action. We discern no error in the Board's action.

We take note, however, that fifteen months have passed since OPM's advice to the Board that it had withdrawn the reconsideration decision in order to consider additional evidence. Had there been further action, there is an obligation to advise the court.