Veletta Coleman v. Office of Personnel Management ( 2024 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
VELETTA C. COLEMAN, DOCKET NUMBER
Appellant, DA-0841-23-0038-I-1
v.
OFFICE OF PERSONNEL DATE: March 6, 2024
MANAGEMENT,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Veletta C. Coleman , Dallas, Texas, pro se.
Jane Bancroft , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed her Federal Employees’ Retirement System benefits appeal for lack of
jurisdiction after the Office of Personnel Management (OPM) rescinded its final
decision. Generally, we grant petitions such as this one only in the following
circumstances: the initial decision contains erroneous findings of material fact;
the initial decision is based on an erroneous interpretation of statute or regulation
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
or the erroneous application of the law to the facts of the case; the administrative
judge’s rulings during either the course of the appeal or the initial decision
were not consistent with required procedures or involved an abuse of discretion,
and the resulting error affected the outcome of the case; or new and material
evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision. 2 5 C.F.R. § 1201.113(b).
¶2 The appellant asserts that the administrative judge erred in his adjudication
of the matter by, among other things, denying her discovery and a hearing.
Petition for Review (PFR) File, Tab 1 at 8, Tab 6 at 4. However, we find no
abuse of discretion by the administrative judge because none of these procedures
could result in a finding of jurisdiction where OPM has rescinded its final
decision. Initial Appeal File (IAF), Tab 23, Initial Decision at 3; see Moore v.
Office of Personnel Management, 114 M.S.P.R. 549, ¶ 4 (2010) (explaining that,
if OPM completely rescinds a final decision, the recission divests the Board of
jurisdiction over the appeal in which that decision is at issue, and the appeal must
be dismissed). To the extent the appellant asserts that the administrative judge
was biased against her, PFR File, Tab 1 at 8, we find her assertion
unsubstantiated, see Vaughn v. Department of the Treasury, 119 M.S.P.R. 605,
¶ 19 (2013) (finding that broad and general allegations of bias are insufficient to
overcome the presumption of the administrative judge’s honesty and integrity).
¶3 The appellant contends that OPM failed to designate a representative and
failed to submit its response file to the administrative judge. PFR File, Tab 1
2
The appellant has filed a motion for leave to file an additional pleading. Petition for
Review File, Tab 8 at 1-3. The appellant’s motion does not describe any documents
that are material to the jurisdictional issue; accordingly, we deny the motion.
3
at 4. We appreciate the appellant’s frustration, but we find that nothing about
OPM’s participation in this appeal prejudiced her substantive rights. See
Brown v. Office of Personnel Management, 43 M.S.P.R. 352, 359 n.9 (1990),
reconsideration denied, 50 M.S.P.R. 383 (1991) (Table). The appellant also
contends that OPM engaged in prohibited personnel practices, to include
discrimination. E.g., PFR File, Tab 1 at 7-8, Tab 2 at 9. However, in the absence
of an appealable matter, the Board lacks jurisdiction to consider these claims. See
Wren v. Department of the Army, 2 M.S.P.R. 1, 2 (1980) (explaining that
prohibited personnel practices under 5 U.S.C. § 2302(b) are not an independent
source of Board jurisdiction), aff’d, 681 F.2d 867, 871-73 (D.C. Cir. 1982). Thus,
the appellant’s contentions do not provide a basis to disturb the initial decision.
¶4 Lastly, the appellant argues that OPM’s decision was unduly delayed, and
she requests damages for the impact of the delay. PFR File, Tab 1 at 3, 6, Tab 2
at 9; IAF, Tab 1 at 9-11. The Board may take jurisdiction over a retirement
appeal if the appellant has made repeated requests for a reconsideration decision
and the evidence shows that OPM does not intend to issue a final decision. See,
e.g., Fletcher v. Office of Personnel Management, 118 M.S.P.R. 632, ¶ 5 (2012).
The Board has also previously found that it may assume jurisdiction when OPM
has indicated that it does not intend to issue an initial decision. See, e.g.,
Easter v. Office of Personnel Management, 102 M.S.P.R. 568, ¶ 8 (2006).
However, we find no authority for the proposition that, once OPM has issued a
decision, its delay in issuing the decision constitutes “an administrative action or
order” affecting the appellant’s rights or interests under FERS. See 5 U.S.C.
§ 8461(e).
¶5 Accordingly, we affirm the initial decision, which dismissed the appeal for
lack of jurisdiction. OPM has represented that it intends to issue new decisions
concerning these matters. We understand the appellant has already experienced
significant delays in achieving a final resolution to her case. Therefore, the
Board encourages OPM to act expeditiously to issue a final decision. Whether
4
OPM does this by first issuing an initial decision with reconsideration rights or by
issuing a final decision with Board appeal rights is a matter within OPM’s
discretion. See 5 C.F.R. §§ 841.305-.307. However, in either case, if the
appellant is dissatisfied with OPM’s final decision or if OPM fails to issue an
appealable final decision within 90 days of the date of this order, the appellant
may file a new Board appeal with the appropriate regional office. Any future
appeal must be filed within the time limits set forth in the Board’s regulations.
See 5 C.F.R. § 1201.22.
NOTICE OF APPEAL RIGHTS 3
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
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.
3
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.
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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.
(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. 420 (2017). If you have a representative in this case,
6
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, the
address of the EEOC is:
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
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(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. 4 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).
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.
4
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.
8
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: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.