Sharon L Simon v. Office of Personnel Management ( 2024 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
SHARON L. SIMON, DOCKET NUMBER
Appellant, AT-0845-20-0227-I-1
v.
OFFICE OF PERSONNEL DATE: July 12, 2024
MANAGEMENT,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Sharon L. Simon , Homosassa, Florida, pro se.
Carla Robinson , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member*
*Member Kerner did not participate in the adjudication of this appeal.
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed for lack of jurisdiction her appeal from the final decision of the Office
of Personnel Management (OPM) finding her ineligible for Federal Employees’
Group Life Insurance (FEGLI). Generally, we grant petitions such as this one
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
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 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).
BACKGROUND
The appellant retired under the Federal Employees’ Retirement System
effective December 2018. Initial Appeal File (IAF), Tab 1 at 9. At some point,
she requested to continue her FEGLI into retirement. Id. OPM issued a final
decision on December 11, 2019, determining, as relevant here, that the appellant
was ineligible to continue her FEGLI benefits into retirement. Id. at 10-11. The
appellant filed an appeal with the Board challenging this determination. IAF,
Tab 1 at 2, Tab 11 at 3. OPM subsequently moved to dismiss the appeal,
asserting that claims relating to the method and manner by which OPM
administers FEGLI are generally not within the Board’s jurisdiction. IAF, Tab 10
at 4.
The administrative judge issued an order to the appellant to show cause
why the Board has jurisdiction over her appeal. IAF, Tab 12. The appellant
responded to the administrative judge’s order arguing that the Board has
jurisdiction because OPM’s final decision “instructed and directed [her] to appeal
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this matter to the Board.” IAF, Tab 15 at 4. The administrative judge issued an
initial decision based on the written record because the appellant withdrew her
request for a hearing. IAF, Tab 1 at 1, Tab 5 at 3, Tab 16, Initial Decision (ID)
at 1. The administrative judge found that the Board lacks jurisdiction over the
appeal. ID at 1, 3.
The appellant has filed a petition for review. Petition for Review (PFR)
File, Tab 1. The agency has filed a response to the petition for review. PFR File,
Tab 4.
DISCUSSION OF ARGUMENTS ON REVIEW
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). On review, the appellant
requests the Board to order OPM to reinstate her life insurance. PFR File, Tab 1
at 4-5. We discern no basis to disturb the administrative judge’s determination
that the Board generally does not have jurisdiction over claims concerning the
Federal employee life insurance program. ID at 2; Chamblin v. Office of
Personnel Management, 112 M.S.P.R. 266, ¶ 7 (2009). Here, the appellant
challenges OPM’s determination that she is ineligible for FEGLI benefits. PFR
File, Tab 1 at 4-5; 5 C.F.R. § 870.701(a)(2).
The Board recognizes several exceptions to the general rule that it lacks
jurisdiction over OPM decisions concerning the administration of life insurance
programs. One exception is OPM’s failure to explain its deductions for such
insurance premiums in the context of a petition to enforce a Board’s order to
OPM to award an annuity. Chamblin, 112 M.S.P.R. 266, ¶¶ 11-12. Another
exception concerns requests for waiving repaying annuity overpayments caused
by the retroactive application of FEGLI premiums. Id., ¶¶ 13-14. The appellant’s
circumstances here do not fall under these exceptions. She is not seeking to
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enforce a Board order or waive an overpayment resulting from a retroactive
deduction of FEGLI premiums. IAF, Tab 1 at 7, 9-11.
Further, to the extent that the appellant argues that the Board possesses
jurisdiction over her appeal based on the notice of appeal rights provided by OPM
in its final decision, we note that the mere fact that the agency informed the
appellant that she may have a right of appeal to the Board does not confer
jurisdiction on the Board. 1 PFR File, Tab 1 at 4; Morales v. Social Security
Administration, 108 M.S.P.R. 583, ¶ 5 (2008). Accordingly, we affirm the
administrative judge’s decision to dismiss this appeal from OPM’s determination
of FEGLI eligibility for lack of jurisdiction.
NOTICE OF APPEAL RIGHTS 2
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.
1
The appellant resubmits with her petition for review documents related to OPM’s
FEGLI eligibility determination. PFR File, Tab 1 at 6-10; IAF, Tab 15 at 6-10. We
have considered these documents again on review, as they pertain to the issue of
jurisdiction, a matter that may be raised at any time during the Board proceedings.
Pirkkala v. Department of Justice, 123 M.S.P.R. 288, ¶ 5 (2016). However, we find
that they do not change the outcome in this matter.
2
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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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.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
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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,
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:
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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. 3 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).
3
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.
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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: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.