Julian Lewallen v. Office of Personnel Management ( 2024 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JULIAN LEE LEWALLEN, DOCKET NUMBER
Appellant, DA-0842-18-0399-I-1
v.
OFFICE OF PERSONNEL DATE: March 21, 2024
MANAGEMENT,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Julian Lee Lewallen , Fort Worth, Texas, pro se.
Carla Robinson , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed his appeal for lack of jurisdiction due to rescission of the
reconsideration decision issued by the Office of Personnel Management (OPM).
Generally, we grant petitions such as this one only in the following
circumstances: the initial decision contains erroneous findings of material fact;
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
the initial decision is based on an erroneous interpretation of statute or regulation
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. 5 C.F.R. § 1201.113(b).
DISCUSSION OF ARGUMENTS ON REVIEW
The appellant filed an appeal challenging OPM’s reconsideration decision
regarding his creditable service for purposes of a retirement annuity.
Initial Appeal File (IAF), Tab 1, Tab 5 at 10-11. Specifically, he disputed OPM’s
exclusion of his service in a temporary appointment from his total service
computation. IAF, Tab 5 at 10-11. While this appeal was pending before the
administrative judge, OPM indicated that it was rescinding its June 13, 2018
reconsideration decision and remanding the appellant’s case to the Post
Adjudication and/or Post-56 Military Service Credit Branch for further
development. IAF, Tab 10 at 4. On August 6, 2018, the administrative judge
issued an initial decision dismissing this appeal for lack of jurisdiction based on
OPM’s assertion that it was rescinding the reconsideration decision. IAF, Tab 12,
Initial Decision (ID) at 2. The appellant filed a petition for review on
September 10, 2018, alleging that OPM failed to timely notify him of his new
annuity benefits or issue a new reconsideration decision, as applicable.
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Petition for Review (PFR) File, Tab 2 at 4. 2 OPM has responded to the petition,
and the appellant has replied. PFR File, Tabs 4 and 5.
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). Generally, the Board has
jurisdiction over retirement issues only after OPM issues a final or
reconsideration decision. McNeese v. Office of Personnel Management,
61 M.S.P.R. 70, 73-74, aff’d per curiam, 40 F.3d 1250 (Fed. Cir. 1994) (Table).
The Board has held that, if OPM completely rescinds a reconsideration decision,
the rescission divests the Board of jurisdiction over the appeal in which the
reconsideration decision is at issue, and the appeal must be dismissed. Martin v.
Office of Personnel Management, 119 M.S.P.R. 188, ¶ 8 (2013). The Board may
assert jurisdiction over a retirement appeal in the absence of a reconsideration
decision if OPM has refused or improperly failed to issue a final decision.
McNeese, 61 M.S.P.R. at 74.
Here, OPM indicated that it would rescind the reconsideration decision,
send the appellant’s case to the appropriate department for further development,
and, if applicable, issue a new final decision with appeal rights. IAF, Tab 10 at 4.
The appellant filed his petition for review only a month after the initial decision
was issued. Compare PFR File, Tab 2, with ID. Thus, there is no excessive delay
by OPM that would indicate a refusal or failure to issue a final decision. Cf.
Easter v. Office of Personnel Management, 102 M.S.P.R. 568, ¶ 8 (2006) (finding
that an 18-month delay by OPM in addressing the appellant’s application
indicated a declination to adjudicate the application). This month -long delay is
2
Along with his petition for review, the appellant also submits documents that are part
of the record below. Compare PFR File, Tab 2 at 6-11, with IAF, Tab 1 at 4-9. The
documents submitted by the appellant do not constitute new and material evidence that
was not previously available despite due diligence and therefore the Board need not
consider them. 5 C.F.R. § 1201.115(d); see Meier v. Department of the Interior ,
3 M.S.P.R. 247, 256 (1980) (finding that evidence that is already a part of the record is
not new).
4
not the type of excessive delay that would lead the Board to conclude that OPM
has improperly failed or refused to issue a decision. See Okello v. Office of
Personnel Management, 120 M.S.P.R. 498, ¶ 15 (2014) (finding that OPM’s
failure to issue a final decision for 6 years constituted an appealable
administrative action because the appellant diligently sought a final decision
during that time period). However, as noted by the administrative judge, after
OPM does issue a new reconsideration decision, the appellant may file a new
appeal with the appropriate regional office if he disagrees with that decision. ID
at 2; see Rorick v. Office of Personnel Management, 109 M.S.P.R. 597, ¶ 7
(2008).
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.
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.
5
(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.
(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
6
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,
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:
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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. 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
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
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: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.