T.K. and Department of Justice, Bureau of Alcohol, Tobacco, Firearms, and Explosives (Board decision, September 13, 2024)

ECAB final decision. The Board dismissed the appeal because OWCP's challenged decision was void. This dismissal ends the Board appeal; it does not decide the underlying compensation claim. Under 20 C.F.R. § 501.6(d), Board decisions and orders become final after 30 days. A party may petition the Board for reconsideration within 30 days unless the order specifies another period, under 20 C.F.R. § 501.7(a).

Plain-English summary

An ATF employee appealed OWCP's November 2023 denial of an additional schedule award. The same schedule-award issue was already pending before the Board in docket 24-0026 when OWCP issued that decision. The Board held that OWCP could not decide the issue during its appeal and that the later OWCP decision was void. With no valid final adverse decision to review, it dismissed this appeal.

Decision snapshot

• Authority: Federal Employees' Compensation Act, 5 U.S.C. § 8101 et seq.
• Outcome: Appeal dismissed; challenged OWCP decision held void.
• Key point: OWCP could not decide an issue already pending before the Board.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
T.K., Appellant
)
)
and ) Docket No. 24-0337
)
Issued: September 13, 2024
DEPARTMENT OF JUSTICE, BUREAU OF )
ALCOHOL, TOBACCO, FIREARMS, AND
)
EXPLOSIVES, BILOXI FIELD OFFICE, )
Biloxi, MS, Employer
)
__________ )

Appearances: Case Submitted on the Record
Appellant, pro se
Office of Solicitor, for the Director

ORDER DISMISSING APPEAL

Before:
ALEC J. KOROMILAS, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge JANICE B. ASKIN, Judge

On February 12, 2024 appellant filed a timely appeal from a November 7, 2023 merit decision of the Office of Workers’ Compensation Programs (OWCP). 1 The Clerk of the Appellate Boards assigned the appeal Docket No. 24-0337.

The Board, having duly considered this matter, notes that the Board and OWCP may not simultaneously exercise jurisdiction over the same issue(s) in a case on appeal. 2 By the November 7, 2023 decision, OWCP denied appellant’s claim for an additional schedule award.

1
Appellant’s application for review (AB-1 Form) notes that he is also appealing from a purported December 18, 2023 OWCP decision. However, the case record does not contain a final adverse decision of that date. The case record contains correspondence dated December 18, 2023 from OWCP’s Branch of Hearings and Review explaining that appellant’s hearing request could not proceed at that time as the Board had concurrent jurisdiction over the same issue. This correspondence, however, does not constitute a final adverse OWCP decision from which appellant may properly appeal as it is informational in nature. See Order Dismissing Appeal, K.S., Docket No. 20-1401 (issued March 17, 2021); Order Dismissing Appeal, S.U., Docket No. 20-0636 (issued December 3, 2020). 2 20 C.F.R. §§ 10.501.2(c)(3), 10.626; Douglas E. Billings, 41 ECAB 880 (1990). See also Order Dismissing Appeal, S.M., Docket No. 22-1151 (issued August 15, 2024); Order Dismissing Appeal, M.B., Docket No. 23-0750 (issued July 20, 2023); Order Dismissing Appeal, A.J., Docket No. 22-1336 (issued May 15, 2023); Order Dismissing Appeal, M.H., Docket No. 22-0880 (issued November 4, 2022). However, on October 11, 2023, appellant had filed an appeal with the Board from April 21 and June 2, 2023 decisions regarding the same underlying issue, to which the Clerk of the Appellate Boards assigned Docket No. 24-0026. As the issue of whether OWCP properly paid appellant a schedule award was pending before the Board in Docket No. 24 -0026 when OWCP issued its November 7, 2023 decision, OWCP’s November 7, 2023 decision is null and void.3

As OWCP’s November 7, 2023 decision is null and void, there is no final adverse decision issued by OWCP over which the Board may properly exercise jurisdiction. The Board, therefore, concludes that the appeal docketed as No. 24-0337 must be dismissed. Accordingly,

IT IS HEREBY ORDERED THAT the appeal docketed as No. 24-0337 is dismissed.

Issued: September 13, 2024
Washington, DC

Alec J. Koromilas, Chief Judge
Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge Employees’ Compensation Appeals Board

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

3
Id.; see also G.W., Docket No. 19-0260 (issued July 10, 2020); Cathy B. Millin, 51 ECAB 331 (2000).

2