Appeal from the Merit System Protection Board. Docket No. NY08319110337.
Before Archer, Plager and Clevenger, Circuit Judges.
Leonilo M. Roxas (Roxas) submitted an application for retirement benefits with the Office of Personnel Management (OPM) on November 26, 1990. He then filed an appeal with the Merit System Protection Board (MSPB or Board) on April 15, 1991. OPM moved that the appeal be dismissed for lack of jurisdiction. The Administrative Judge (AJ) dismissed Roxas' appeal on August 13, 1991 (Docket No. NY08319110337). Roxas did not file a petition for review with the full Board, and the decision became final on September 17, 1991. Roxas appeals here. We affirm.
The AJ dismissed Roxas' appeal because OPM had not yet rendered an initial decision on his claim, much less a final or reconsideration decision. Roxas may only appeal a final or reconsideration decision. 5 C.F.R. § 831.110. In short, OPM has not yet issued a decision from which Roxas may appeal -- the MSPB and this court have nothing to review.
When the OPM improperly fails to respond to a petitioner's repeated requests for a decision, the petitioner may pursue an appeal before the MSPB prior to a final or reconsideration decision from OPM. Such a situation was described in Garcia v. OPM, 31 M.S.P.R. 160, 161 (1986). The AJ in this case considered the applicability of this argument and then held that the exception did not apply, since four months was not an inordinate amount of time and further that Roxas had not submitted evidence of repeated requests. We agree.
The legal standard by which the Federal Circuit reviews decisions of the MSPB is that the decision must be affirmed unless it is found to be:
1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law;
2) obtained without procedures required by law, rule or regulation having been followed; or
3) unsupported by substantial evidence.
There being no error, we ...