Eileen Manning v. Office of Personnel Management ( 2023 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
EILEEN L. MANNING, DOCKET NUMBER
Appellant, PH-0831-17-0200-I-1
v.
OFFICE OF PERSONNEL DATE: March 22, 2023
MANAGEMENT,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Frizzell T. Green, Baltimore, Maryland, for the appellant.
Jane Bancroft, Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Member 2
FINAL ORDER
¶1 The Office of Personnel Management (OPM) has filed a petition for review
of the initial decision, which reversed its reconsideration decision finding the
1
A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
2
Member Leavitt’s name is included in decisions on which the three -member Board
completed the voting process prior to his March 1, 2023 departure.
2
appellant ineligible to retire under her former employing agency’s voluntary early
retirement authority (VERA) program offered in 1979. For the reasons discussed
below, we GRANT the agency’s petition for review and VACATE the initial
decision. We DISMISS the appellant’s retirement appeal for lack of jurisdiction.
BACKGROUND
¶2 The appellant was employed by the Social Security Administration (SSA)
for nearly 40 years, until she retired from her GS-05 position. Initial Appeal File
(IAF), Tab 7 at 42, 78, 86-88. In 1979, while she was employed at SSA, OPM
authorized SSA to offer voluntary early retirement to SSA employees at the
GS-12 level and above, within the appellant’s geographic location, who were at
least 50 years of age with 20 years of experience or any age with 25 years of
experience, among other specified criteria. Id. at 22-23. There is no indication
from the record that the agency extended that VERA offer to the appellant or that
she applied for voluntary early optional retirement. Instead, on October 5, 1993,
she applied for an optional (other than early optional) retirement annuity under
the Civil Service Retirement System (CSRS). Id. at 80. OPM granted her
application, effective December 31, 1993, and commenced her annuity payments,
effective January 1, 1994. Id. at 42, 75, 82.
¶3 On December 14, 2015, the appellant sent a letter to OPM , arguing that she
was eligible to retire under the 1979 VERA and requesting a declaration to that
effect because she believed it would “assist her in receiving Social Security
Benefits.” Id. at 58-64. In a January 15, 2016 initial decision, OPM determined
that the appellant was ineligible for the 1979 VERA because she did not meet the
grade level requirement and advised her that she could file a request for
reconsideration. Id. at 12-13. In her request for reconsideration, the appellant
reasserted her VERA eligibility claim. Id. at 52-57. On February 9, 2017, OPM
issued a reconsideration decision, affirming its initial decision and notifying the
appellant of her Board appeal rights. Id. at 8-10.
3
¶4 The appellant filed this appeal, arguing that she was eligible for the
1979 VERA because she met the statutory requirements to qualify for voluntary
early retirement in effect at the time, even though she did not meet the grade level
requirement imposed by OPM and the agency. IAF, Tab 1 at 5. Essentially, she
asserts that OPM exceeded its legal authority by limiting VERA eligibility to
employees at the GS-12 level and above. Id. She further asserts that OPM’s
error prevented her from obtaining the SSA benefits to which she was entitled.
Id.¶5 The administrative judge issued an initial decision, reversing OPM’s
reconsideration decision. IAF, Tab 15, Initial Decision (ID) at 1, 7. She
determined that the Board had jurisdiction over the appeal under 5 U.S.C.
§ 8461(e)(1). ID at 1. She found that OPM lacked the authority to limit VERA
eligibility based on grade level. ID at 3-7. Thus, she concluded that its
determination that the appellant was not eligible for the 1979 VERA on that basis
was incorrect. ID at 5-7.
¶6 OPM has filed a petition for review of the initial decision, arguing for the
first time that both OPM and the Board lack jurisdiction over the appellant’s
claims and, as a result, OPM’s reconsideration decision and the Board’s initial
decision should be vacated. Petition for Review (PFR) File, Tab 1 at 7-10. The
appellant has submitted a response. 3 PFR File, Tab 3.
DISCUSSION OF ARGUMENTS ON REVIEW
¶7 On review, OPM asserts that its reconsideration decision does not implicate
the appellant’s rights and interests under CSRS because she has not applied for
voluntary early retirement. PFR File, Tab 1 at 8. OPM further contends that,
absent a decision implicating the appellant’s rights and interests under CSRS, the
3
The appellant also submitted a request for damages and settlement offer to the Board’s
Northeastern Regional Office after the issuance of the initial decision. IAF, Tab 17.
We need not consider those arguments in light of our dismissal of this matter for lack of
jurisdiction.
4
Board has no basis for asserting jurisdiction under 5 U.S.C. § 8347(d)(1). Id. We
agree.
¶8 The Board’s jurisdiction is limited to those matters over which it has been
given jurisdiction by law, rule, or regulation. Maddox v. Merit Systems
Protection Board, 759 F.2d 9, 10 (Fed. Cir. 1985). The issue of Board
jurisdiction is always before the Board and may be raised by either party or sua
sponte by the Board at any time during a Board proceeding. Hasanadka v. Office
of Personnel Management, 116 M.S.P.R. 636, ¶ 19 (2011). The existence of
Board jurisdiction is a threshold issue in adjudicating an appeal. Id. The Board’s
jurisdiction over CSRS retirement cases is governed by 5 U.S.C. § 8347(d)(1). 4
Hasanadka, 116 M.S.P.R. 636, ¶ 19. Under that provision, the Board generally
has jurisdiction over a matter affecting the rights or interests of an individual
under CSRS only after OPM has issued a final decision on the merits of that
matter. Id.; see 5 U.S.C. § 8347(d)(1); 5 C.F.R. § 831.110.
¶9 The appellant argues that OPM exceeded its authority by limiting VERA
eligibility based on employee grade level. PFR File, Tab 3 at 3-4 (citing An Act
to Permit Immediate Retirement of Certain Federal Employees, Pub. L.
No. 93-39, 87 Stat. 73 (1973) (codified as amended at 5 U.S.C. § 8336(d)(2)(E));
IAF, Tab 13 at 2-4. She asserts that the only criteria permitted for a VERA in
1979 were age and years of Federal service. PFR File, Tab 3 at 6. She further
argues that her entitlement to the VERA is a right or interest under the CSRS
regardless of whether she applied for the VERA. Id. at 3-4. She reasons that if
she was eligible for the 1979 VERA, she would be exempt from the Government
pension offset (GPO), pursuant to which SSA reduced her spousal Social Security
benefit to zero. IAF, Tab 7 at 46-47, Tab 10 at 1-6, 9-10. Under the GPO, the
amount of an individual’s Social Security age-old benefit is reduced based on her
4
Section 8461(e)(1) of Title 5, cited by the administrative judge as the basis for Board
jurisdiction here, is inapplicable. ID at 1. It grants the Board jurisdiction over OPM
determinations under the Federal Employees’ Retirement System.
5
receipt, as applicable here, of a CSRS annuity. 42 U.S.C. § 402(k)(5)(A);
Moriarty v. Office of Personnel Management, 47 M.S.P.R. 280, 282 (1991), aff’d
per curiam, 989 F.2d 1202 (Fed. Cir. 1993) (Table).
¶10 The appellant apparently is not seeking an annuity based on her eligibility
for voluntary early optional retirement. PFR File, Tab 3 at 3; IAF, Tab 13 at 2,
Tab 14 at 6. While she applied and was found eligible for an optional (other than
early optional) retirement annuity, she has not alleged, and nothing in the record
indicates, that she applied for an annuity under the 1979 VERA. IAF, Tab 7
at 76-81, Tab 13 at 2. Instead, the appellant seeks to have OPM issue an opinion
as to her VERA eligibility to influence SSA’s determination regarding her Social
Security benefits. PFR File, Tab 3 at 3; IAF, Tab 1 at 5. Thus, under these
circumstances, the appellant has not met her burden to prove that OPM’s
February 9, 2017 decision implicates her rights or interests under CSRS. IAF,
Tab 7 at 8-10; see Miller v. Office of Personnel Management, 123 M.S.P.R. 68,
¶ 9 (2015) (determining that the Board lacks jurisdic tion over OPM’s decision not
to waive collection of an annuity overpayment indirectly received by an
individual who was without rights to the funds under CSRS); Moriarty,
47 M.S.P.R. at 287-88 (adjudicating an employee’s claim that his election to
change retirement systems was involuntary as a result of OPM’s misleading
statements concerning the GPO); 5 C.F.R. § 1201.56(b)(2)(i)(A) (explaining that
an appellant must prove jurisdiction over her appeal by preponderant evidence ).
¶11 As a result, OPM’s February 9, 2017 letter does not qualify as an appealable
reconsideration decision, even though OPM characterized it as such. 5 IAF, Tab 7
at 8-10; see 5 C.F.R. § 831.109(a) (granting “any individual or agency whose
rights or interests under [CSRS] are affected by an initial decision of [OPM] . . .
[the right to] request OPM to review its initial decision” (emphasis added)).
Further, without an actual claim for retirement benefits by the appellant, and an
5
Further, OPM effectively has vacated its February 9, 2017 reconsideration decision on
review. PFR File, Tab 1 at 4.
6
actual decision on that claim by OPM, any decision by the Board about what the
appellant may or may not be entitled to would be an advisory opinion, which the
Board is expressly prohibited from issuing. See 5 U.S.C. § 1204(h); Blaha v.
Office of Personnel Management, 108 M.S.P.R. 21, ¶ 11 (2007). The erroneous
notification of appeal rights included in the February 9, 2017 letter does not
confer Board jurisdiction. Poole v. Department of the Army, 117 M.S.P.R. 516,
¶ 20 (2012) (explaining that the mere fact that an agency informs an appellant of
a right to appeal to the Board does not confer jurisdiction on the Board).
¶12 Accordingly, unless and until the appellant applies for voluntary early
optional retirement and receives a decision from OPM on her application, we
have no basis to find Board jurisdiction over this retirement matter. 6 We
therefore vacate the initial decision and dismiss the appellant’s retirement appeal
for lack of jurisdiction.
NOTICE OF APPEAL RIGHTS 7
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
6
OPM also argues that the Board lacks jurisdiction over the appellant’s challenges to
the 1979 VERA criteria selected by SSA. PFR File, Tab 1 at 9. We need not address
that argument in light of our dismissal for lack of jurisdiction for the above stated
reasons.
7
Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
7
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general. As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
8
(2) Judicial or EEOC review of cases involving a claim of
discrimination. This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision—including a disposition of your discrimination
claims—by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board, 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court-appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues. 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, th e
address of the EEOC is:
9
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012. This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction. 8 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
8
The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
10
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
FOR THE BOARD: /s/ for
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.