By Kimberly H. Berry, Esq., www.berrylegal.com
In a new case, the MSPB Board held that when OPM fails to issue a final appealable decision, and engages in substantial delays, the MSPB may be able to hear the appeal on the merits without waiting for a formal decision from OPM.
Background of Okello Case
In Okello v. OPM, 2014 MSPB 2 (Jan. 2014), a retired federal employee petitioned for the review of an initial decision that dismissed his appeal involving an alleged overpayment of annuity benefits on the basis of lack of jurisdiction. There were many complex details as the case had been through the MSPB over the course of approximately six years. During this time, OPM failed to issue a final appealable decision as to whether or not the appellant was indebted to the government for the alleged overpayment of annuity benefits.
Unfortunately, OPM did not issue a final decision over this six-year period and essentially left the appellant in limbo as to the final outcome of his case. The appellant appealed to the MPSB. An MSPB administrative judge dismissed the appeal on the basis of lack of jurisdiction given the lack of a final appealable decision from OPM. The appellant appealed the adverse initial decision to the MSPB Board, who then reversed the initial decision and remanded it for further adjudication on the merits. Of importance here is the fact that the Board held that it normally has jurisdiction to review a retirement matter only after OPM issues a reconsideration decision or issues a decision without reconsideration rights. Outside of this normal process, the MSPB has normally not found jurisdiction to hear OPM-related retirement appeals.
Board Finds Jurisdiction for Retirement Appeal Where OPM Abdicates Role in Adjudicating Claims
In Okello, however, the Board held that “under the totality of the circumstances, OPM’s failure to act on this matter constitutes an appealable administrative action affecting the appellant’s rights under FERS and that the Board has jurisdiction over this appeal.” The Board found that under the unusual and compelling circumstances of the case that OPM effectively abdicated its role of adjudicating the claim and that the merits of Okello’s case would be heard. The MSPB Board then reversed the dismissal and ordered the administrative judge to conduct an adjudication on the merits.
The Okello decision is important in the context of delays caused by OPM in adjudicating retirement matters. Federal employees and annuitants now have an additional argument to use when OPM does not issue a decision in a timely manner. Our law firm is experienced in federal retirement issues and is available to advise individuals regarding these types of federal retirement matters. We can be reached at www.berrylegal.com or by telephone at (703) 668-0070.