Jeffery Gelina v. Office of Personnel Management

UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD

JEFFERY ALAN GELINA, DOCKET NUMBER

Appellant, PH-0841-25-0131-I-1 v.

OFFICE OF PERSONNEL DATE: August 26, 2026 MANAGEMENT,

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1 Jeffery Alan Gelina , Walworth, New York, pro se.

Eva Ukkola , Jo A. Bell , and Michael Shipley , Washington, D.C., for the agency.

BEFORE James J. Woodruff II, Chairman Henry J. Kerner, Vice Chairman FINAL ORDER

The appellant has filed a petition for review of the initial decision, which dismissed his appeal for lack of jurisdiction. On petition for review, he argues the merits of his claim that the Office of Personnel Management (OPM) erred in calculating his monthly Federal Employees’ Retirement System (FERS) annuity. Generally, we grant petitions such as this one only in the following circumstances: the initial decision contains erroneous findings of material fact; the initial decision is based on an erroneous interpretation of statute or regulation or the erroneous application of the law to the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting the petition for review. Therefore, we DENY the petition for review. Except as expressly MODIFIED to replace references to Civil Service Retirement System (CSRS) statutory and regulatory provisions with their analogous FERS provisions, we AFFIRM the initial decision.

The appellant is a former Federal employee with 24 years of service who retired in 2023. Initial Appeal File (IAF), Tab 1 at 2; Petition for Review (PFR) File, Tab 5 at 5. On December 2, 2024, the appellant filed an initial appeal with the Board in which he alleged that OPM miscalculated his gross monthly annuity under FERS. IAF, Tab 1 at 2. The administrative judge issued an initial decision on August 26, 2025, that dismissed the appeal for lack of jurisdiction because the appellant was not appealing from an OPM final decision. IAF, Tab 15, Initial Decision (ID). The appellant filed a petition for review on September 16, 2025. PFR File, Tab 1. He solely argues the merits of his claim. Id. at 4-6. The agency filed a response to the petition for review, and the appellant filed a reply to the response. PFR File, Tabs 4-5.

The Board’s jurisdiction is not plenary; it is limited to those matters over which it has been given jurisdiction by law, rule, or regulation. Maddox v. Merit Systems Protection Board, 759 F.2d 9, 10 (Fed. Cir. 1985). In general, the Board has jurisdiction over determinations affecting an appellant’s rights or interests under FERS only after OPM has issued a final decision, also known as a reconsideration decision. McNeese v. Office of Personnel Management, 61 M.S.P.R. 70, 72-74, aff’d, 40 F.3d 1250 (Fed. Cir. 1994) (Table); see 5 U.S.C. § 8461(e)(1) (permitting appeals to the Board from administrative actions or orders affecting rights under FERS); 5 C.F.R. § 841.308 (allowing an individual whose rights or interests under FERS are affected by an OPM final decision to request Board review). The parties do not dispute that OPM has not issued a final or reconsideration decision. ID at 2. 2

The Board has recognized the following three situations in which OPM is deemed to have issued an appealable decision: (1) when OPM issues a reconsideration decision under 5 C.F.R. § 841.306; (2) when OPM issues an initial decision without reconsideration rights under 5 C.F.R. § 841.307; and (3) when OPM has refused or improperly failed to issue a final decision. Okello v. Office of Personnel Management, 120 M.S.P.R. 498, ¶ 14 (2014). The first two situations do not apply because OPM has not issued a reconsideration decision under 5 C.F.R. § 841.306 or an initial decision without reconsideration rights under 5 C.F.R. § 841.307. PFR File, Tab 5 at 5. Likewise, nothing in the record suggests that the appellant requested reconsideration of an OPM initial decision or that OPM refused or failed to issue a final decision after receipt of such a request. As a result, we discern no error in the administrative judge’s conclusion that the Board lacks jurisdiction over this appeal.

Nonetheless, the administrative judge cited the CSRS statutory and regulatory provisions that provide for an appeal to the Board from an OPM reconsideration decision that sustains its initial determination. ID at 2 (citing 5 U.S.C. § 8347(d); 5 C.F.R. § 831.110). However, the appellant receives a retirement benefit under FERS, not CSRS. IAF, Tab 1 at 2, Tab 12 at 4-10. We therefore modify the initial decision by replacing the references to these CSRS provisions with references to the analogous FERS ones, 5 U.S.C. § 8461(e)(1); 5 C.F.R. § 841.308.

NOTICE OF APPEAL RIGHTS 3

The initial decision, as supplemented by this Final Order, constitutes the Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum.

Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information.

(1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(A).

If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address:

U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439

Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.

If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case.

(2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision—including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems Protection Board, 582 U.S. 420 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court-appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a.

Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .

Alternatively, you may request review by the Equal Employment

Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision.

If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is:

Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013

If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to:

Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507

(3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction. 4 The court of appeals must receive your petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(B).

If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address:

U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439

Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.

If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case.

Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .

FOR THE BOARD: ______________________________

Gina K. Grippando Clerk of the Board

Washington, D.C.