Hahn v. Environmental Protection Agency , 360 F. App'x 157 ( 2010 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2009-3266
ELOISE K. HAHN,
Petitioner,
v.
ENVIRONMENTAL PROTECTION AGENCY,
Respondent.
Eloise K. Hahn, of Berwyn, Illinois, pro se.
Joseph A. Pixley, Trial Attorney, Commercial Litigation Branch, Civil Division,
United States Department of Justice, of Washington, DC, for respondent. With him on
the brief were Tony West, Assistant Attorney General, Jeanne E. Davidson, Director,
and Harold D. Lester, Jr., Assistant Director.
Appealed from: Merit Systems Protection Board
NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2009-3266
ELOISE K. HAHN,
Petitioner,
v.
ENVIRONMENTAL PROTECTION AGENCY,
Respondent.
Petition for review of the Merit Systems Protection Board in CH0752080671-C-1.
_________________________
DECIDED: January 8, 2010
_________________________
Before LOURIE, SCHALL, and BRYSON, Circuit Judges.
PER CURIAM.
DECISION
Eloise K. Hahn petitions for review of the final decision of the Merit Systems
Protection Board (“Board”) that denied her petition for enforcement. Hahn v.
Environmental Protection Agency, No. CH-0752-08-0671-C-1 (M.S.P.B. July 21, 2009)
(“Final Decision”). We affirm.
DISCUSSION
I.
After Ms. Hahn was removed from her position with the Environmental Protection
Agency (“agency”), she appealed to the Board. In due course, the agency and Ms.
Hahn, who was represented by counsel, entered into a written agreement to resolve the
appeal. The settlement agreement provided that Ms. Hahn would be permitted to resign
in lieu of being removed. In addition, Ms. Hahn agreed to dismiss her appeal with
prejudice. At the same time, the agency agreed to pay Ms. Hahn $18,000 within 60
days of receiving her notice of dismissal of her appeal. The agreement further provided
that a new SF-50 would be issued that would not make mention of the reasons for the
removal action. The Board retained jurisdiction for the limited purpose of enforcing the
agreement.
On April 7, 2009, Ms. Hahn filed a petition for enforcement of the settlement
agreement. In her petition, Ms. Hahn claimed that the agency had failed to pay her
$18,000, as required under the agreement. At a status conference on May 5, 2009,
however, the parties stipulated that Ms. Hahn had received $18,000 from the agency
and that the agency had fully complied with the agreement. Accordingly, the
administrative judge (“AJ”) to whom the enforcement matter was assigned found the
agency in compliance with the settlement agreement and denied the petition for
enforcement. Hahn v. Environmental Protection Agency, No. CH-0752-08-0671-C-1
(M.S.P.B. May 18, 2009) (“Initial Decision”). The Initial Decision became the final
decision of the Board on July 21, 2009, after the Board denied Ms. Hahn’s petition for
review for failure to meet the criteria for review set forth at 5 C.F.R. § 1201.115(d).
Final Decision. This appeal followed. We have jurisdiction pursuant to 28 U.S.C.
§ 1295(a)(9).
2009-3266 2
II.
Our scope of review in an appeal from a decision of the Board is limited.
Specifically, we must affirm the Board’s decision unless we find it to be (1) arbitrary,
capricious, an abuse of discretion, or otherwise not in accordance with law; (2) obtained
without procedures required by law, rule, or regulation having been followed; or (3)
unsupported by substantial evidence. 5 U.S.C. § 7703(c); Kewley v. Dep’t of Health &
Human Servs., 153 F.3d 1357, 1361 (Fed. Cir. 1998).
On appeal, Ms. Hahn does not challenge the Board’s findings that the agency
paid her $18,000, as required by the settlement agreement, and that the agency was in
compliance with the agreement. Those findings thus stand. Rather, she raises two
additional issues. First, she seeks to make a lump sum payment back to the Federal
Employees Retirement System (“FERS”) to restore her accrued service. In that regard,
she states that the Board “was notified of the Office of Personnel Management’s denial
of Petitioner’s claim to pay back FERS retirement fund to resecure [sic] her service on
May 5, 2009.” Second, she seeks to have her SF-50 discharge papers revised (i) to
reflect that the agency separated her pursuant to a reduction in force and (ii) to include
Career Transition Program (“CTAP”) rights.
Neither of these contentions helps Ms. Hahn. Starting with the FERS issue, it
appears that Ms. Hahn first raised this matter during the May 5, 2009 status conference
before the AJ. The AJ noted in her summary of the status conference that the Office of
Personnel Management (“OPM”) had issued an initial decision on the FERS issue, and
she explained to Ms. Hahn that “the Board generally lacks jurisdiction over a retirement
concern until after OPM has issued a reconsideration or final decision adjudicating the
2009-3266 3
matter.” The AJ further stated that she “encouraged [Ms. Hahn] to file a Board appeal if
she receiv[ed] a reconsideration decision she believ[ed] to be erroneous.” SUMMARY
OF STATUS CONFERENCE at 1. The AJ’s statement that the Board lacked jurisdiction
until OPM issued a reconsideration decision was correct. See 5 C.F.R. § 841.308 (“an
individual whose rights or interests under FERS are affected by a final decision of OPM
may request MSPB to review the decision.”); Sanders v. Office of Pers. Mgmt., 93
M.S.P.R. 684, 687 (2003) (“the Board has no jurisdiction over a retirement matter until
after OPM has issued a final or reconsideration decision adjudicating that matter”);
Gillian v. Office of Pers. Mgmt., 91 M.S.P.R. 352, 361 (2002). To what the AJ said, we
will simply add that if Ms. Hahn receives an unfavorable decision from the Board on her
appeal of an OPM reconsideration decision on her FERS claim, she will be free to
petition this court for review.
Turning to the SF-50 issue, in its final decision, the Board noted that Ms. Hahn
had not raised this matter in her petition for enforcement and that the AJ had not
addressed it in the Initial Decision. Declining to address the issue, the Board stated: “If
the appellant raises this argument in her petition for review because she believes the
agency has failed to comply with the settlement agreement, she may file a new petition
for enforcement with the Central Region.” Final Decision at 2. The Board did not err in
not considering this issue. See Carson v. Department of Energy, 398 F.3d 1369, 1376
(Fed. Cir. 2005). Moreover, because Ms. Hahn raised this issue for the first time in her
petition for review to the Board, this court will not consider it either. See Bosley v. Merit
Systems Protection Board, 162 F.3d 665, 668 (Fed. Cir. 1998). In any event, as noted,
the Board informed Ms. Hahn that if she believed that the SF-50 issue involved an
2009-3266 4
instance of the agency’s failure to comply with the settlement agreement, she could
lodge a petition for enforcement with the Board. Thereafter, if she chose to do so, she
could petition for review of any unfavorable Board decision.
In sum, on appeal, Ms. Hahn has not challenged the final decision of the Board
on the one matter that she raised in her petition for enforcement. Rather, she has
sought to bring before us matters that the Board properly declined to consider and that
we will not consider. As has been explained, however, Ms. Hahn has the option of
pursuing these matters if she chooses to do so. The final decision of the Board is
affirmed.
2009-3266 5