Case: 21-1645 Document: 37 Page: 1 Filed: 12/15/2021
NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
VALERI HENDERSON,
Petitioner
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent
______________________
2021-1645
______________________
Petition for review of the Merit Systems Protection
Board in No. PH-844E-19-0049-I-1.
______________________
Decided: December 15, 2021
______________________
VALERI HENDERSON, Philadelphia, PA, 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 MOORE, Chief Judge, DYK and REYNA, Circuit
Judges.
Case: 21-1645 Document: 37 Page: 2 Filed: 12/15/2021
2 HENDERSON v. MSPB
PER CURIAM.
Valeri Henderson appeals a decision by the U.S. Merit
Systems Protection Board dismissing her appeal for lack of
jurisdiction. As explained below, Ms. Henderson did not
meet her burden of establishing that the Board had juris-
diction over her case, and so we affirm.
BACKGROUND
I
Under regulations promulgated by the Office of Person-
nel Management (“OPM”), a federal employee is eligible for
a disability retirement annuity when, inter alia, she be-
comes disabled because of a qualifying medical condition
while employed in a position subject to the Federal Em-
ployment Retirement System (“FERS”). If entitlement is
proven, a disability annuity “commences on the day after
the employee separates or the day after pay ceases and the
employee meets the requirements for title to an annuity.”
5 C.F.R. § 844.301. If the recipient is younger than 62
years old, the rate of the annuity is computed according to
rules established by OPM. See
id. § 844.302. Specifically,
within the first year, the annuity “is [generally] equal to 60
percent of the annuitant’s average pay.” Id.
§ 844.302(b)(1). After the first year, the annuity “is [gen-
erally] equal to 40 percent of the annuitant’s average pay.”
Id. § 844.302(c)(1).
When the recipient turns 62 years old, however, the
rate is recomputed according to the calculations set forth
in
5 U.S.C. § 8415, with the assumption that the employee
is given “credit for all periods before the annuitant’s 62nd
birthday during which he or she was entitled to an annuity
under this part.”
5 C.F.R. § 844.305. Section 8415(a) de-
fines the generally applicable calculation: “the annuity of
an employee retiring under this subchapter is 1 percent of
that individual’s average pay multiplied by such individ-
ual’s total service.”
5 U.S.C. § 8415(a).
Case: 21-1645 Document: 37 Page: 3 Filed: 12/15/2021
HENDERSON v. MSPB 3
A retiree who receives a disability annuity and who
wishes to, for example, “mak[e] elections or . . . change in-
formation in their retirement records must file their appli-
cations with OPM.”
5 C.F.R. § 841.304. Generally, OPM
will then issue one of two types of decisions. First, OPM
may issue a decision subject to reconsideration. See
id.
§§ 841.305–306. An OPM decision “is subject to reconsid-
eration by OPM[] whenever the decision is in writing and
states the right to reconsideration.” Id. § 841.305. Upon
reconsideration, OPM “will issue a final decision that must
be in writing, must fully set forth the findings and conclu-
sions of the reconsideration, and must contain notice of the
right to request an appeal” to the Merit Systems Protection
Board (“Board”) provided in § 841.308. Id. § 841.306. Spe-
cifically, § 841.308 states that “an individual whose rights
or interests under FERS are affected by a final decision of
OPM may request [the Board] to review the decision in ac-
cord with procedures prescribed by [the Board].” Id.
§ 841.308. Second, OPM may issue a final decision without
reconsideration. See id. § 841.307. Under this procedure,
OPM issues a final decision that “must be in writing and
state the right to appeal under § 841.308.” Id. As noted,
both types of decisions must be final, must be in writing,
and must notify the retiree regarding her right to appeal
the final decision.
II
On or about October 31, 1992, Ms. Henderson entered
disability retirement from her employment with the Inter-
nal Revenue Service (“IRS”). Since that time, Ms. Hender-
son has received a monthly FERS disability annuity.
In January 2017, shortly after her 62nd birthday, Ms.
Henderson called OPM to “inquir[e] as to what [she]
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4 HENDERSON v. MSPB
need[ed] to sign retirement papers.” SAppx21. 1 Later that
month, OPM notified Ms. Henderson that it would adjust
her annuity to reflect that she had turned 62, as required
by law. SAppx27. The notice explained that the new an-
nuity rate would “represent[] the annuity payable if [Ms.
Henderson] had continued to work until the date before
[her] 62nd birthday and retired under the non-disability
provisions of the FERS retirement law.” Id. The notice
further informed Ms. Henderson that, accordingly, the new
annuity was based on 29 years and 1 month of federal ser-
vice and an average salary of $29,921. Id.
On November 8, 2018, Ms. Henderson filed an admin-
istrative appeal with the Board to challenge OPM’s alleged
downward adjustment of her disability retirement annuity.
In the appeal form she submitted, Ms. Henderson alleged
that she started working at the IRS in 1987; that she was
injured on the job; and that in an April 2018 phone call,
OPM informed her that its system indicated that she had
in fact received a salary amount—$19,532—that was lower
than the amount indicated in OPM’s January 23, 2017 no-
tice. SAppx16, 21. Ms. Henderson disagreed that the lower
amount applied and told OPM that her “salary at the time
of [her] disability was well over $20 thousand.” SAppx21.
Despite her disagreement, OPM allegedly told her in the
phone call that it would use the salary figure shown in its
system. SAppx21–22.
On February 7, 2019, the Board dismissed her appeal
for lack of jurisdiction. SAppx1–2. The Board explained
that Ms. Henderson did not meet her burden of proving ju-
risdiction because she did not “submit[] evidence or argu-
ment establishing that OPM issued a final decision in this
1 “SAppx” refers herein to the appendix attached to
the government’s response brief.
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HENDERSON v. MSPB 5
matter,” as required under
5 U.S.C. § 8461(e)(1) and
5 C.F.R. §§ 841.308, 1201.56(a)(2)(i). SAppx2.
On April 25, 2019, Ms. Henderson filed a pro se petition
for review in the U.S. Court of Appeals for the Third Cir-
cuit. On February 2, 2021, the court issued a decision con-
cluding that it lacked jurisdiction and transferring the case
to this court without reaching its merits. SAppx37–41.
The court explained that, in general, “a petition for review
of an adverse [Board] decision must be filed in the Court of
Appeals for the Federal Circuit.” SAppx38. However, the
court also explained, it could properly assert jurisdiction in
two scenarios that are exceptions to the general rule:
(1) where the case involves a claim for reprisal in violation
of the Whistleblower Protection Enhancement Act of 2012,
SAppx39, and (2) where the case involves a claim that “an
agency action appealable to the [Board] violates an antidis-
crimination statute listed in § 7702(a)(1),” id. (quoting
Kloeckner v. Solis,
568 U.S. 41, 56 (2012)). The court con-
cluded that it lacked jurisdiction because neither of those
exceptions to the general rule applied, given that Ms. Hen-
derson did not mention reprisal or discrimination in her
appeal to the Board.
Id. The court thus transferred the
case to this court and declined to reach the merits.
SAppx40–41. We have jurisdiction under
5 U.S.C.
§ 7703(b)(1)(A) and
28 U.S.C. § 1295(a)(9).
STANDARD OF REVIEW
We affirm a decision by the Board unless it is (1) arbi-
trary, capricious, an abuse of discretion, or otherwise not
in accordance with law; (2) obtained without procedures re-
quired by law, rule, or regulation having been followed; or
(3) unsupported by substantial evidence.
5 U.S.C.
§ 7703(c); Yates v. Merit Sys. Prot. Bd.,
145 F.3d 1480, 1483
(Fed. Cir. 1998). Whether the Board has jurisdiction over
an appeal is a question of law that we review de novo. Bry-
ant v. Merit Sys. Prot. Bd.,
878 F.3d 1320, 1325 (Fed. Cir.
2017).
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6 HENDERSON v. MSPB
DISCUSSION
The government argues that the Board correctly deter-
mined it lacked jurisdiction over Ms. Henderson’s appeal,
given the absence of any indication that OPM issued a fi-
nal, appealable decision. Respondent’s Br. 6–8. We agree.
“The Board’s jurisdiction is not plenary; rather, it is
limited to actions designated as appealable to the Board
‘under any law, rule, or regulation.’” Prewitt v. Merit Sys.
Prot. Bd.,
133 F.3d 885, 886 (Fed. Cir. 1998) (quoting
5 U.S.C. § 7701(a) (“An employee, or applicant for employ-
ment, may submit an appeal to [the Board] from any action
which is appealable to the Board under any law, rule, or
regulation.”)). The statutory and regulatory provisions
governing the Board’s jurisdiction from appeals involving
disability retirement annuities, when read together, gener-
ally require a final decision by OPM as a prerequisite. For
example, the statute governing FERS provides that “an ad-
ministrative action or order affecting the rights or interests
of an individual . . . may be appealed to [the Board] under
procedures prescribed by the Board.”
5 U.S.C. § 8461(e)(1)
(emphasis added); see also Joseph v. Merit Sys. Prot. Bd.,
776 F. App’x 676, 678 (Fed. Cir. 2019) (non-precedential).
OPM’s regulations provide, more specifically, that “an in-
dividual whose rights or interests under FERS are affected
by a final decision of OPM may request [the Board] to re-
view the decision in accord with procedures prescribed by
[the Board].”
5 C.F.R. § 841.308 (emphasis added). The
Board’s regulations, in turn, reiterate that its “appellate
jurisdiction is limited to those matters over which it has
been given jurisdiction by law, rule, or regulation,” and
they further identify provisions governing “[r]etirement
appeals,” including
5 U.S.C. § 8461(e)(1) and 5 C.F.R. part
844, as provisions that “authoriz[e] the Board to hear an
appeal or claim.” See
5 C.F.R. § 1201.3. Aside from cases
involving final decisions by OPM, we have also recognized
a limited exception in which the Board may exercise juris-
diction where OPM “has refused or improperly failed to
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HENDERSON v. MSPB 7
issue a final decision.” Stillwell v. Merit Sys. Prot. Bd.,
629 F. App’x 998, 999 (Fed. Cir. 2015).
We conclude that the Board did not err in dismissing
Ms. Henderson’s appeal for lack of jurisdiction. “The party
asserting jurisdiction bears the burden to show, by a pre-
ponderance of the evidence, that the Board had jurisdic-
tion.” Mouton-Miller v. Merit Sys. Prot. Bd.,
985 F.3d 864,
869 (Fed. Cir. 2021) (citing Garcia v. Dep’t of Homeland
Sec.,
437 F.3d 1322, 1325 (Fed. Cir. 2006) (en banc)); see
also
5 C.F.R. § 1201.56(b)(2). The record before us contains
no indication that OPM issued an appealable decision or
improperly refused to issue one, such that the Board could
properly assert jurisdiction. Instead, the record shows that
OPM notified Ms. Henderson that her disability retirement
annuity rate had been recalculated after her 62nd birth-
day, as required by law, and that she disagreed with an
OPM employee in a phone call regarding the salary figure
that should be used to determine the rate of her annuity.
These facts alone are insufficient to establish the Board’s
jurisdiction, and Ms. Henderson has not proffered any ad-
ditional evidence or argument that suffices to do so. We
therefore affirm the Board’s decision dismissing Ms. Hen-
derson’s appeal for lack of jurisdiction.
Lastly, we note that, as far as we can determine from
the informal briefs and record in this case, Ms. Henderson’s
case appears to remain pending before the OPM. It is not
clear from the record whether she has submitted the proper
paperwork to OPM challenging an actual reduction in her
benefits that resulted from OPM’s use of an incorrect sal-
ary figure. Nor does the record show that OPM has issued
a final decision concerning which salary figure it will use
to determine her annuity’s rate. If and when OPM issues
a final decision on which salary figure it will use, Ms. Hen-
derson may agree with it, or she may not. If she does not
agree, she can appeal that final decision in accordance with
the instructions that should be provided in the final deci-
sion. See
5 C.F.R. §§ 841.306–307.
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8 HENDERSON v. MSPB
CONCLUSION
We have considered other arguments raised by Ms.
Henderson and find them unavailing. We conclude that
Ms. Henderson did not meet her burden of establishing the
Board’s jurisdiction, and we therefore affirm the Board’s
decision dismissing the case for lack of jurisdiction.
AFFIRMED
COSTS
No costs.
