De Salas v. Merit System Protection Board

20 F. App'x 861

• Court: Court of Appeals for the Federal Circuit
• Decided: October 4, 2001
• Docket: No. 01-3207
• Status: Published

Opinion

PER CURIAM.

Virginia F. Vda de Salas seeks review of the final decision of the Merit Systems Protection Board (“Board”) dismissing her appeal for lack of jurisdiction because she filed her appeal without first obtaining a reconsideration or final decision from the Office of Personnel Management (“OPM”). Vda. De Salas v. Office of Pers. Mgmt., No. SE-0831-00-0319-I-1, 88 M.S.P.R. 307 (Feb. 20, 2001). We affirm.

I

Ms. de Salas applied to OPM seeking survivor annuity benefits based on her late husband’s federal employment service. On July 26, 2000, OPM initially denied her request, stating that she was not entitled to any benefits under the Civil Service Retirement System. Ms. de Salas did not seek reconsideration of the initial decision.

Thereafter, Ms. de Salas appealed the adverse initial decision by OPM to the Board. Pursuant to law, the Board only has jurisdiction to consider final decisions of OPM, see 5 C.F.R. § 831.110, and also by law a “final decision” is either a decision issued on a request for reconsideration of an initial decision, or an initial decision rendered at the highest level of review available within OPM. 5 C.F.R. §§ 831.109(c), (f) (2001). Any appeal to the Board from an OPM decision that is not final is deemed premature and beyond the jurisdictional reach of the Board. See Fabian v. Office of Pers. Mgmt., 43 M.S.P.R. 291, 293 (1990).

Because Ms. de Salas filed her appeal at the Board without first obtaining a reconsideration decision, and because OPM’s initial denial of her request did not emanate from the highest level of review in OPM, the Administrative Judge assigned to hear Ms. de Salas’s appeal notified Ms. de Salas of the need to obtain a reconsideration decision from OPM. The Administrative Judge offered Ms. de Salas the opportunity to obtain a reconsideration decision in order to perfect her appeal. Ms. de Salas responded, saying that she wished the Board to consider her request for survivor benefits. Ms. de Salas, however, did not assert that she had sought and obtained a reconsideration decision from OPM. OPM also responded, saying that it had not issued a final decision on Ms. de Salas’s request for benefits. OPM moved for dismissal of Ms. de • Salas’s appeal, and the Administrative Judge then dismissed her appeal. Ms. de Salas unsuccessfully sought review of the Administrative Judge’s decision by the full Board, which denied her request for review. The petition for review at this court followed.

II

The Board correctly stated and applied the law to Ms. de Salas’s appeal. Without a reconsideration decision from OPM, the Board cannot hear her appeal. We may not upset a final decision of the Board unless we determine that it is arbitrary, capricious, an abuse of discretion or otherwise unlawful. 5 U.S.C. § 7703(c)(1) (2000). There is no error in the Board’s decision in this case. We therefore affirm the Board’s final decision.