Ronald Keith Watkins v. Merit Systems Protection Board

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
RONALD KEITH WATKINS,
Petitioner
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent
______________________
2018-1420
______________________
Petition for review of the Merit Systems Protection
Board in No. DC-0831-18-0148-I-1.
______________________
Decided: June 8, 2018
______________________
RONALD K EITH W ATKINS , Silver Spring, MD, pro se.
TARA JEAN K ILFOYLE, Office of the General Counsel,
Merit Systems Protection Board, Washington, DC, for
respondent. Also represented by K ATHERINE M. SMITH .
______________________
Before NEWMAN , D YK , and TARANTO , Circuit Judges.
PER C URIAM.
In October 2017, Ronald Keith Watkins received a de-
cision from the United States Office of Personnel Man-

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WATKINS v. MSPB 2
agement (OPM) denying his request for an immediate (as
opposed to deferred) Civil Service Retirement System
retirement annuity. He appealed to the Merit Systems
Protection Board. The assigned administrative judge of
the Board dismissed Mr. Watkins’s appeal on two
grounds—that the Board lacked jurisdiction, and that this
appeal was duplicative of an earlier still-pending appeal
on the same claim. The administrative judge explained
that OPM had withdrawn the October 2017 decision and
also that the same retirement-annuity claim had been
decided by OPM earlier and Mr. Watkins’s separate
appeal from that earlier decision was currently pending
before the full Board. Watkins v. Office of Pers. Mgmt.,
2018 WL 400554 (2018). We affirm.
I
Mr. Watkins began working for the government of the
District of Columbia in 1981. Before his employment was
terminated in February 2003, he made protected whistle-
blowing disclosures to the District of Columbia Inspector
General’s Office and to the United States Attorney’s
Office for the District of Columbia. As a result, Mr.
Watkins successfully brought a suit under the District of
Columbia Whistleblower Protection Act and was awarded
damages and back pay.
In August 2015, Mr. Watkins submitted an Applica-
tion for Immediate Retirement, Standard Form 2801, to
OPM. On December 19, 2015, OPM issued an initial
decision to Mr. Watkins denying his claim, and it affirmed
that denial in a final decision issued on February 8, 2016.
Mr. Watkins appealed the February 2016 decision to the
Board, and an administrative judge issued an initial
decision affirming the denial. Watkins v. Office of Pers.
Mgt., 2016 WL 3988775 (2016). In July 2016, Mr. Wat-
kins filed a petition for review seeking the full Board’s
review of that decision. When Mr. Watkins sought relief
from this court, citing inaction by the Board because it

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WATKINS v. MSPB 3
lacked a quorum, this court denied the request. Watkins
v. Office of Pers. Mgmt., No. 17-1516, Order (March 23,
2017).
On October 18, 2017, while Mr. Watkins’s petition for
review was still pending (as it still is), OPM issued Mr.
Watkins a second initial decision. That initial decision
denied the same claim for immediate retirement and told
Mr. Watkins that he could request reconsideration. It
also stated that he was eligible for a deferred retirement
commencing August 18, 2016, for which OPM would begin
payments upon receiving a properly completed SF1496A
form.
Mr. Watkins appealed the October 2017 initial deci-
sion to the Board in November 2017. The assigned ad-
ministrative judge, concerned about lack of finality,
ordered both Mr. Watkins and OPM to address the re-
viewability of the October 2017 decision. In response,
OPM stated that the decision was indeed not a final
decision, that it was duplicative of the earlier February
2016 decision, and that, because of the duplicativeness,
OPM “rescinds the initial decision dated October 18,
2017” as “issued in error.” Supp. App. 41.
The administrative judge dismissed Mr. Watkins’s
appeal in January 2018. The administrative judge rea-
soned that it was undisputed that the October 2017
decision was not a final decision; contrary to Mr. Wat-
kins’s contention, OPM had not refused to adjudicate his
claim; and in any event, any jurisdiction the Board had
ended when OPM rescinded the October 2017 decision.
Further, and in the alternative, the administrative judge
ruled that dismissal was proper even if Mr. Watkins was
correct that OPM was now refusing to issue a final deci-
sion on his claim. The administrative judge cited Board
authorities establishing that the appeal should be dis-
missed in the interest of adjudicatory efficiency because of
the 2016 appeal on the same claim, which was already

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WATKINS v. MSPB 4
rejected by an administrative judge and still pending
before the full Board.
On February 16, 2018, the administrative judge’s
January 2018 initial decision became the final decision of
the Board as to the November 2017 appeal. On that day,
Mr. Watkins’s already-filed petition for review to this
court became timely. See 5 U.S.C. §7703(b)(1)(A); Jones v.
Dep’t of Health & Human Servs., 834 F.3d 1361, 1365
(Fed. Cir. 2016) (“when a petitioner files a petition for
review with this court before an AJ’s initial decision
becomes final, the petitioner’s appeal ripens once that
initial decision becomes the final decision of the MSPB”).
We have jurisdiction under 28 U.S.C. § 1295(a)(9).
II
Under 5 U.S.C. § 7703(c), we review the decision be-
fore us to determine if it is “arbitrary, capricious, an
abuse of discretion, or otherwise not in accordance with
law; obtained without procedures required by law; or
unsupported by substantial evidence.” Ward v. U.S.
Postal Serv., 634 F.3d 1274, 1278 (Fed. Cir. 2011) (inter-
nal quotation marks and citations omitted). We have
been shown no such error justifying disturbance of the
administrative judge’s decision in this matter. With
respect to both the Board-jurisdiction and efficiency
grounds, the administrative judge did not err in relying
on the existence of the still-pending earlier appeal from
OPM’s earlier final decision on the same claim for an
immediate retirement annuity.
When reviewing determinations regarding an indi-
vidual’s rights or interests under the Civil Service Re-
tirement System, the Board has jurisdiction only after
OPM issues a final decision, and an initial decision is not
final when it is still subject to reconsideration—as the
October 2017 initial decision expressly was. See 5 C.F.R.
§§ 831.109(f)(1), 831.110. Although in some circumstanc-
es “an initial decision subject to reconsideration or the

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WATKINS v. MSPB 5
absence of any decision at all may [] constitute a final
administrative action or decision,” Okello v. Office of Pers.
Mgmt., 120 M.S.P.R. 498, 502–04 (2014) (internal quota-
tion marks omitted); see McNeese v. Office of Pers. Mgmt.,
61 M.S.P.R. 70, 74, aff’d, 40 F.3d 1250 (Fed. Cir. 1994)
(Table), the Board has concluded that such an exception
does not apply when OPM has already issued a separate
final decision on the same issues, Muyco v. Office of Pers.
Mgmt., 104 M.S.P.R. 557, 562 (2007). We see no error in
applying those principles here, where OPM actually
rescinded the October 2017 initial decision at issue; the
administrative judge reasonably treated the earlier, 2016
OPM decision on the same issues as foreclosing an argu-
ment that OPM refused to decide the issues. And even
aside from Board jurisdiction, we have determined in a
past non-precedential opinion that when an appellant
files an appeal with the Board that presents the same
claims as an earlier appeal and the earlier appeal remains
pending before the full Board, an administrative judge
does not violate the law in dismissing the later appeal in
the interest of adjudicatory efficiency. Boyd v. Dep’t of
Labor, 561 Fed. Appx. 978, 982 (Fed. Cir. 2014) (citing
Zgonc v. Dep’t of Defense, 103 M.S.P.R. 666, 669 (2006)).
We have no reason to draw a different conclusion here.
Because the Board had proper reasons to dismiss the
appeal, we need not address the merits of Mr. Watkins’s
contentions. He presumably has had or will have an
opportunity to present those contentions in his first
appeal, still pending before the Board.
III
For the foregoing reasons, we affirm the decision of
the Board in Mr. Watkins’s November 2017 appeal.
No costs.
AFFIRMED

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