0320120020
05-30-2012
Guillermo Mojarro, Petitioner, v. John Berry, Director, Office of Personnel Management, Agency.
Guillermo Mojarro,
Petitioner,
v.
John Berry,
Director,
Office of Personnel Management,
Agency.
Petition No. 0320120020
MSPB No. SF-0841-11-0212-I-1
DECISION
On January 5, 2012, Petitioner filed a petition with the Equal Employment Opportunity Commission, seeking review of a Final Order issued by the Merit Systems Protection Board (MSPB).
BACKGROUND
Petitioner retired from the U.S. Postal Service (USPS). Afterward, the Office of Personnel Management (OPM) informed him that he owed a debt to the USPS because he allegedly used advanced sick leave and annual leave, and retired before he could earn it back. He also allegedly owed an additional debt for unpaid health benefits and unpaid salary advances. OPM indicated it would collect this debt from the annuities he received from the Federal Employee's Retirement System.
Petitioner appealed to the MSPB, challenging OPM's efforts to recoup the alleged debt by administratively offsetting his retirement benefits. He also argued that he was entitled to interest on the money that OPM withheld from his annuity and attorney's fees.
An MSPB Administrative Judge (AJ) issued an initial decision. The AJ found that OPM had completely rescinded its collection action and fully refunded all the deductions withheld from Petitioner's annuity. The AJ determined that such a rescission divested the MSPB of jurisdiction over the appeal. Therefore, the AJ dismissed the appeal.1
Petitioner sought review by the full Board, arguing that the MSPB had jurisdiction over this matter because OPM did not specifically state that it had completely rescinded all of its collection efforts. He also reiterated his contention that he was entitled to interest on the money that OPM withheld from his annuity and attorney's fees.
The Board denied the petition for review, finding no reason to disturb the AJ's determination that the MSPB lacked jurisdiction over this appeal. The Board then found that the AJ properly denied Petitioner's request for interest because there is no legal authority supporting the imposition of interest in these circumstances. Next, the Board explained that Petitioner's request for attorney's fees was not properly before the MSPB. If Petitioner believed he was entitled to attorney's fees, the Board indicated that he must file a motion for attorney's fees with the regional office. Thus, the Board declined to make findings on Petitioner's entitlement to attorney's fees.
CONTENTIONS ON PETITION
In his petition for review to the Commission, Petitioner contends that the MSPB has jurisdiction over this appeal because OPM has not specifically stated that it had completely rescinded all of its collection efforts. He also reasserts his argument that he is entitled to attorney's fees.
In addition, he maintains that he "has claimed issues of discrimination which were disregarded." However, he does not specify what those discrimination claims are and in what context he raised them.
Finally, Petitioner seeks to "encompass all documents relating to the matters of Mojarro v. U.S.P.S., OFO Appeal Docket Numbers 0720110024, 0120113229, and 0120113166 . . . ." He "repeats and re-alleges all of his allegations in the above mentioned appeals, and incorporates each by reference."
ANALYSIS AND FINDINGS
EEOC regulations provide that the Commission has jurisdiction over mixed case appeals on which the MSPB has issued a decision that makes determinations on allegations of discrimination. 29 C.F.R. � 1614.303 et seq. In contrast, the Commission has no jurisdiction over procedural determinations made by the Board. Here, the Board made a procedural determination that it had no jurisdiction over Petitioner's retirement appeal. We find that the MSPB's decision did not address any matters within the EEOC's jurisdiction. The MSPB's decision concerns OPM deducting money from Petitioner's retirement annuities; it raises no issue of employment discrimination involving Petitioner's former employer, the U.S. Postal Service.
We also find Petitioner's attempt here to request reconsideration of the Commission's decisions in Mojarro v. U.S. Postal Serv., EEOC Appeal Nos. 0720110024, 0120113229 (Nov. 15, 2011)2 to be improper. Those decisions dealt with a separate legal issue: the validity of an April 14, 2011 settlement agreement between Petitioner and the USPS. Petitioner has already separately requested reconsideration of those decisions.3 We find it improper to attempt to re-raise those arguments here in this petition for review, which involves a separate matter.
Therefore, we DENY consideration of the petition for review.
PETITIONER'S RIGHT TO FILE A CIVIL ACTION (W0610)
This decision of the Commission is final, and there is no further right of administrative appeal from the Commission's decision. You have the right to file a civil action in an appropriate United States District Court, based on the decision of the Merit Systems Protection Board, within thirty (30) calendar days of the date that you receive this decision. If you file a civil action, you must name as the defendant in the complaint the person who is the official Agency head or department head, identifying that person by his or her full name and official title. Failure to do so may result in the dismissal of your case in court. "Agency" or "department" means the national organization, and not the local office, facility or department in which you work.
RIGHT TO REQUEST COUNSEL (Z0610)
If you decide to file a civil action, and if you do not have or cannot afford the services of an attorney, you may request from the Court that the Court appoint an attorney to represent you and that the Court also permit you to file the action without payment of fees, costs, or other security. See Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c). The grant or denial of the request is within the sole discretion of the Court. Filing a request for an attorney
with the Court does not extend your time in which to file a civil action. Both the request and the civil action must be filed within the time limits as stated in the paragraph above ("Right to File a Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
___5/30/12_______________
Date
1 The AJ determined that the issue of attorney's fees was not part of the merits portion of this appeal.
2 Mojarro v. U.S. Postal Serv., EEOC Appeal No. 0120113166, was administratively closed because it was a duplicate of Appeal No. 0120113229, which was consolidated with Appeal No. 0720110024.
3 EEOC Request Nos. 0520120253, 0520120168.
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0320120020
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0320120020