Cross v. Office of Personnel Management ( 2011 )

NOTE: This disposition is nonprecedential
United States Court of Appeals
for the Federal Circuit
__________________________
REBECCA M. CROSS,
Petitioner,
v.
OFFICE OF PERSONNEL MANAGEMENT,
Respondent.
__________________________
2010-3158
__________________________
Petition for review of the Merit Systems Protection
Board in case no. SL831E880232-C-1.
___________________________
Decided: January 14, 2011
___________________________
REBECCA M. CROSS, of St. Louis, Missouri, pro se.
DEVIN A. WOLAK, Trial Attorney, Commercial Litiga-
tion 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 MARK A. MELNICK,
Assistant Director.
__________________________
CROSS v. OPM 2
Before NEWMAN, GAJARSA, and MOORE, Circuit Judges.
PER CURIAM.
Rebecca M. Cross appeals the final order of the Merit
Systems Protection Board (“Board” or “MSPB”) denying
her petition for review and rendering the initial decision
of the Administrative Judge (“AJ”) final. In her initial
decision, the AJ found that the Office of Personnel Man-
agement (“OPM” or “the agency”) was in compliance with
the Board’s September 1, 1988 decision ordering OPM to
approve Ms. Cross’s application for a disability retire-
ment, and denied the petition for enforcement. Because
the Board’s position was supported by substantial evi-
dence, we affirm.
BACKGROUND
Ms. Cross was employed by the United States Postal
Service. In 1983, she suffered an on-the-job injury of post
traumatic stress disorder after witnessing an elevator
door close on a pushcart. Since that time, Ms. Cross has
not worked and has continuously received some form of
Federal disability compensation. From the time of injury
until 2002, she received disability compensation from the
Office of Workers’ Compensation Programs (“OWCP”). In
2002, OWCP terminated her benefits after concluding
that Ms. Cross’s disabling condition no longer prevented
her from working. Since that time, she has been receiving
an OPM disability retirement annuity.
The present litigation was initiated on July 27, 2009,
when Ms. Cross filed a petition for enforcement of the
MSPB’s September 1, 1988 order directing the grant of
her OPM disability retirement application. In an initial
decision dated December 8, 2009, the AJ denied the
petition. The AJ found that not only was the agency in
full compliance with the 1988 order, but also that Ms.
3 CROSS v. OPM
Cross did “not present[ ] any cognizable claim that OPM
is not in compliance with the underlying Board order
granting her a disability retirement.” Ms. Cross filed a
petition for review by the full Board, arguing for the first
time that OPM had miscalculated her disability retire-
ment benefit. On June 4, 2010, the MSPB denied her
petition, holding that the Board lacks jurisdiction over
appeals alleging an error in the calculation of OPM re-
tirement benefits.
A timely appeal to this court followed. This court has
jurisdiction over Ms. Cross’s appeal pursuant to 5 U.S.C.
§ 7703(b)(1) and 28 U.S.C. § 1295(a)(9).
DISCUSSION
The scope of judicial review of Board decisions is nar-
rowly defined and limited by statute. We must affirm a
decision of the Board unless it is arbitrary, capricious, an
abuse of discretion, or otherwise not in accordance with
law; obtained without procedures required by law, rule, or
regulation having been followed; or unsupported by
substantial evidence. 5 U.S.C. § 7703(c). The burden of
establishing any error in the administrative decision lies
with the petitioner, because there is a presumption that
administrative actions are correct and that Government
officials act in good faith in discharging their duties.
Sanders v. United States Postal Serv., 801 F.2d 1328,
1331 (Fed. Cir. 1986).
Ms. Cross first asserts that because she is over sixty
years old, OPM regulations prohibit the Government from
subjecting her to further medical examinations. To the
extent that she is contesting the Department of Labor’s
(“DOL”) decision to terminate her OWCP disability bene-
fits, that decision is not reviewable by the MSPB or this
court. 5 U.S.C. § 8128 (vesting the Secretary of Labor
with authority to review DOL benefits determinations,
CROSS v. OPM 4
and stating that the Secretary’s actions are “not subject to
review by another official of the United States or by a
court by mandamus or otherwise”). The record also
contains no evidence that Ms. Cross has raised any issues
concerning her disability compensation with either OWCP
or OPM. 1
Ms. Cross next argues that she was denied due proc-
ess and discriminated against when an unnamed source
“return[ed] information to me because I failed to send a
copy to OPM.” While she does not elaborate on her asser-
tion, the record shows that both the AJ and the MSPB
thoroughly considered all the issues that were raised and
that she was afforded proper due process.
Lastly, Ms. Cross suggests that because she was un-
able to retain an attorney in this case, the Board’s deci-
sion “should not be acceptable in any court in this
country.” However, civil litigants are not guaranteed a
right to counsel and this would not be a basis of reversal
of the Board’s decision. See, e.g., Arnesen v. Principi, 300
F.3d 1353, 1360 (Fed. Cir. 2002) (citing Lassiter v. Dep’t of
Social Servs., 452 U.S. 18, 25-26 (1981)). In addition, Ms.
Cross did not prevail before the Board because her claim
lacks merit, not because she was not represented by
counsel.
1 In its final decision, the Board noted that Ms.
Cross submitted numerous documents dating from 1984
to 1988 relating to her OWCP claim and her disability
retirement annuity under the Civil Service Retirement
System, and a letter dated October 5, 2009 indicating that
her attorney terminated the attorney-client relationship.
Because no evidence was submitted showing that any of
the documents were unavailable prior to the close of the
record, despite her due diligence, the Board need not
consider them on review.
5 CROSS v. OPM
The AJ correctly determined that OPM met its burden
to demonstrate by a preponderance of the evidence that it
was in compliance with the Board’s prior order, and that
the Board does not possess jurisdiction to review decisions
concerning OWCP benefits. The AJ also correctly held
that the MSPB only possesses jurisdiction to entertain an
appeal of an OPM determination on the merits of an
individual’s application for Civil Service Retirement
System (“CSRS”) benefits after a final reconsideration
decision upon the merits. 5 U.S.C. § 8347(d)(1); 5 C.F.R.
§§ 831.109(f), 831.110; Muyco v. Office of Pers. Mgmt., 104
M.S.P.R. 557, 560 (2007) (citations omitted). Because
there was no final OPM reconsideration decision in this
case, the MSPB only has jurisdiction to consider a CSRS
retirement benefits appeal if, after issuing an initial
decision denying benefits, OPM improperly failed or
refused to issue a reconsideration decision. Muyco, 104
M.S.P.R. at 562.
Because the decision of the Board is supported by
substantial evidence, we affirm.
COSTS
No Costs.