Eleseo Pakingan, Petitioner, v. Office of Personnel Management, Respondent, 852 F.2d 1293 (Fed. Cir. 1988)

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US Court of Appeals for the Federal Circuit - 852 F.2d 1293 (Fed. Cir. 1988)

June 13, 1988


Before EDWARD S. SMITH, NIES and MICHEL, Circuit Judges.

PER CURIAM.


DECISION

The appeal of Eleseo Pakingan (Pakingan), undocketed but related to docket No. SE08318610357, is remanded to the Merit Systems Protection Board (board) to be treated as a timely appeal of the April 2, 1987, reconsideration decision of the Office of Personnel Management (OPM).

OPINION

Pakingan appealed to the board a July 30, 1986, decision of OPM finding him ineligible to receive a retirement annuity because of insufficient creditable civilian service. The administrative judge (AJ) noted that the appeal was not properly before the board because there had not been a final decision by OPM since it had never issued a reconsideration decision. The AJ concluded that OPM's failure to inform Pakingan of his right to request reconsideration, despite the fact that he had requested benefits 11 times in 9 years after his initial request was denied, would justify the AJ in assuming jurisdiction over the appeal. The AJ declined to exercise jurisdiction, however, in order to give Pakingan the opportunity to submit additional evidence. The AJ remanded the case to OPM to be treated as a timely request for reconsideration. OPM issued the reconsideration decision on April 2, 1987, and informed Pakingan of his right to appeal to the board. Instead of filing an appeal with the board, Pakingan filed an appeal with this court.

The AJ's decision to dismiss Pakingan's appeal and to remand the case to OPM was proper. Since the reconsideration decision has now issued pursuant to the AJ's remand, the board should have the opportunity to review it. Therefore, we remand this case to the board to be treated as a timely appeal from OPM's April 2, 1987, reconsideration decision.

Costs

East party shall bear its own costs.