Case: 21-2080 Document: 21 Page: 1 Filed: 02/15/2022
NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
KISHMA L. FLEMING,
Petitioner
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent
______________________
2021-2080
______________________
Petition for review of the Merit Systems Protection
Board in No. AT-844E-21-0223-I-1.
______________________
Decided: February 15, 2022
______________________
KISHMA L. FLEMING, Augusta, GA, pro se.
ELIZABETH WARD FLETCHER, Office of General Counsel,
United States Merit Systems Protection Board, Washing-
ton, DC, for respondent. Also represented by TRISTAN L.
LEAVITT, KATHERINE MICHELLE SMITH.
______________________
Before HUGHES, MAYER, and STOLL, Circuit Judges.
PER CURIAM.
Case: 21-2080 Document: 21 Page: 2 Filed: 02/15/2022
2 FLEMING v. MSPB
After the Office of Personnel Management rescinded its
final decision in Kishma Fleming’s case, the Merit Systems
Protection Board determined that it lacked jurisdiction and
dismissed Ms. Fleming’s appeal. Ms. Fleming appeals the
Board’s dismissal. We affirm because without a final deci-
sion to review, the Board lacks jurisdiction to continue with
an appeal. Ms. Fleming may appeal to the Board again
when the Office of Personnel Management issues a new fi-
nal decision.
BACKGROUND
Ms. Fleming applied for disability retirement twice.
This appeal arises from her second application.
Ms. Fleming first applied for disability retirement in
2016. Appx15. 1 The Office of Personnel Management
(OPM) issued a final decision denying her application.
Appx14. Ms. Fleming appealed to the Merit Systems Pro-
tection Board. In that appeal, number AT-844E-19-0309-I-
1, an administrative judge upheld OPM’s denial. Appx2
n.1. Ms. Fleming filed a petition for review by the full
Board, which the full Board has not yet decided. Appx2 n.1;
see Appx4 (explaining that the full Board is currently una-
ble to issue decisions on petitions for review because it does
not have enough members at this time).
In 2020, Ms. Fleming filed a second application for dis-
ability retirement. Appx23. On January 26, 2021, OPM is-
sued a final decision denying Ms. Fleming’s second
application, concluding:
[T]he documentation submitted failed to establish
a medical condition which exists continuously at a
disabling severity. . . . [Y]our performance ap-
praisal indicates a rating of “outstanding” and
1 Appx refers to the appendix submitted with Re-
spondent’s brief.
Case: 21-2080 Document: 21 Page: 3 Filed: 02/15/2022
FLEMING v. MSPB 3
stated you are fully successful or better regarding
all critical elements of your position. There were no
long-term restrictions or limitations imposed by
your treating physicians which indicate you will be
unable to attend the workplace or complete the du-
ties of your job. [OPM] has concluded that as you
do not meet all the criteria necessary, you are not
entitled to disability retirement at this time.
Appx25. Ms. Fleming appealed to the Board on February
10, 2021. Appx1 (appeal number AT-844E-21-0223-I-1).
On June 8, 2021, OPM told the Board that it had re-
scinded its decision on Ms. Fleming’s second application.
As OPM explained, the filing of a second application for
disability retirement may cause the first application to be-
come moot. Appx30. OPM explained that it needs to deter-
mine whether Ms. Fleming’s first application is moot in
order to decide how to treat her second application.
Appx30–31. If Ms. Fleming’s first application is not moot,
OPM will treat her second application as an amended ver-
sion of the first application, instead of as an entirely sepa-
rate application. Appx30–31. OPM stated that once it
makes a mootness determination, it will issue a new final
decision on Ms. Fleming’s second application, which will
give Ms. Fleming a new right to appeal. Appx2, 31. Having
rescinded its final decision on Ms. Fleming’s second appli-
cation, OPM filed a motion with the Board to dismiss
Ms. Fleming’s appeal number AT-844E-21-0223-I-1, on her
second application, for lack of jurisdiction. Appx30.
On June 9, 2021, an administrative judge granted
OPM’s motion. The administrative judge concluded that
the Board lacked jurisdiction over the matter because OPM
had rescinded its final decision. Appx2. The administrative
judge therefore dismissed Ms. Fleming’s appeal on her sec-
ond application.
On June 11, 2021, Ms. Fleming appealed the adminis-
trative judge’s initial decision to this Court. The
Case: 21-2080 Document: 21 Page: 4 Filed: 02/15/2022
4 FLEMING v. MSPB
administrative judge’s initial decision became the Board’s
final decision on July 14, 2021. Appx3. Thus, although
Ms. Fleming’s appeal to the Federal Circuit was prema-
ture, we can hear it because it has since ripened. We have
jurisdiction pursuant to
5 U.S.C. § 7703(b)(1)(A) and
28
U.S.C. § 1295(a)(9), and our jurisdiction includes “inherent
power to determine our own jurisdiction and that of the
[B]oard.” Maddox v. MSPB,
759 F.2d 9, 10 (Fed. Cir. 1985).
In sum, Ms. Fleming filed two appeals with the Board.
OPM rescinded its final decision in the second one and
stated that it would issue a new decision. The Board dis-
missed the second appeal, and we now consider whether
the Board was correct to dismiss that appeal.
DISCUSSION
The Board’s determination that it lacks jurisdiction is
a legal conclusion that we review de novo. Bryant v. MSPB,
878 F.3d 1320, 1325 (Fed. Cir. 2017).
The Board has jurisdiction over “an administrative ac-
tion or order affecting the rights or interests of an individ-
ual . . . under the [Federal Employees’ Retirement System
as] administered by [OPM].”
5 U.S.C. § 8461(e)(1); see also
Miller v. OPM,
449 F.3d 1374, 1377 (Fed. Cir. 2006). Spe-
cifically, the Board has jurisdiction over final decisions of
OPM under FERS. See
5 C.F.R. § 841.308 (“[A]n individual
whose rights or interests under FERS are affected by a fi-
nal decision of OPM may request MSPB to review the deci-
sion . . . .”). OPM’s rescission of a final decision deprives the
Board of jurisdiction over an appeal. Snyder v. OPM,
136
F.3d 1474, 1476 (Fed. Cir. 1998). In this case, OPM re-
scinded its final decision on Ms. Fleming’s second petition,
causing the Board to lose jurisdiction over her appeal.
The Board has recognized a limited exception: it re-
tains jurisdiction where “dismissal of the appeal could ef-
fectively prevent an appellant from obtaining an
adjudication of his claim,” such as where it appears that
Case: 21-2080 Document: 21 Page: 5 Filed: 02/15/2022
FLEMING v. MSPB 5
OPM has no intention of issuing a reconsideration decision.
McLaughlin v. OPM,
62 M.S.P.R. 536, 546–47 (1994). Here,
the exception does not apply because OPM has adjudicated
Ms. Fleming’s successive disability retirement applications
and has stated that it intends to do so again. See Appx30–
31.
OPM has stated that it intends to issue a new final de-
cision. As the Board noted, if Ms. Fleming is dissatisfied
with any new final decision OPM may issue regarding her
disability retirement, she may appeal OPM’s final decision
to the Board. See
5 U.S.C. § 8461(e)(1);
5 C.F.R. § 841.308.
Ms. Fleming’s briefs argue that the Board failed to con-
sider certain medical documentation and other facts in her
case. Ms. Fleming can argue these issues before the Board
after OPM issues its new decision. The Board was correct
to dismiss the appeal because OPM had rescinded its orig-
inal decision and indicated it would issue a new one.
***
The Board’s dismissal of Ms. Fleming’s appeal number
AT-844E-21-0223-I-1 for lack of jurisdiction is
AFFIRMED
COSTS
Each party shall bear its own costs.
