Launa Ogburn v. Office of Personnel Management ( 2024 )


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  •                       UNITED STATES OF AMERICA
    MERIT SYSTEMS PROTECTION BOARD
    LAUNA GOLDDEEN OGBURN,                          DOCKET NUMBER
    Appellant,                          DC-0841-19-0345-I-1
    v.
    OFFICE OF PERSONNEL                             DATE: January 10, 2024
    MANAGEMENT,
    Agency.
    THIS FINAL ORDER IS NONPRECEDENTIAL 1
    Launa Golddeen Ogburn , Woodbridge, Virginia, pro se.
    Karla W. Yeakle , Washington, D.C., for the agency.
    BEFORE
    Cathy A. Harris, Vice Chairman
    Raymond A. Limon, Member
    FINAL ORDER
    The appellant has filed a petition for review of the initial decision, which
    affirmed the reconsideration decision of the Office of Personnel Management
    (OPM) that denied her request for an adjustment to her annuity. 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
    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    A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
    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).
    On petition for review, the appellant does not challenge the administrative
    judge’s finding that she failed to provide any evidence or argument regarding the
    merits of OPM’s reconsideration decision.       Initial Appeal File (IAF), Tab 29,
    Initial Decision at 4; Petition for Review (PFR) File, Tab 1.         Nor does she
    provide on review any substantive evidence or argument to support her claim that
    OPM erred in its calculation of her annuity. PFR File, Tab 1. Accordingly, we
    find that the appellant has failed to meet her burden of establishing by
    preponderant evidence that OPM incorrectly calculated her annuity. See 
    5 C.F.R. § 1201.56
    (b)(2)(ii) (providing that, in appeals from OPM reconsideration
    decisions involving retirement benefits, the appellant bears the burden of proving
    her entitlement to benefits).
    We have considered the appellant’s other arguments on review, but none
    warrant a different outcome. For example, the appellant references another of her
    appeals that went before the U.S. Court of Appeals for the Federal Circuit. PFR
    File, Tab 1 at 8, 11. We believe that she is referring to the decision in Ogburn v.
    Merit Systems Protection Board, 
    750 F. App’x 990
    , 991-92 (Fed. Cir. 2018), in
    which the court affirmed the dismissal for lack of jurisdiction of the appellant’s
    3
    prior appeal in Ogburn v. Office of Personnel Management, MSPB Docket No.
    DC-0841-18-0135-I-1, based on OPM’s rescission of a prior reconsideration
    decision.   The court’s decision does not concern the present appeal, which is
    based on OPM’s new, February 5, 2019 reconsideration decision. IAF, Tab 12
    at 8-10.
    The appellant also takes issue with an OPM letter dated May 25, 2012.
    PFR File, Tab 1 at 7. Although unclear, we believe that she is referring to OPM’s
    letter that granted her application for disability retirement benefits or a letter
    referencing her diagnosis. IAF, Tab 12 at 30-33. The appellant’s concerns with
    the correspondence are not clear.      However, the Board’s jurisdiction is not
    plenary; it 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). A petition for review must contain sufficient specificity to
    enable the Board to ascertain whether there is a serious evidentiary challenge
    justifying a complete review of the record. Tines v. Department of the Air Force,
    
    56 M.S.P.R. 90
    , 92 (1992). In the absence of such specificity, we will not further
    consider this argument.
    The appellant also refers to the docket numbers in her various Board
    appeals as fraudulent or invalid, and she appears to indicate that such fraud
    constitutes a continuing felony against her. PFR File, Tab 1 at 4-5, 9-10. The
    Board has assigned the docket numbers in the appellant’s appeals in accordance
    with its usual practice, and it is not aware of any basis under which the
    assignment of docket numbers is either fraudulent or invalid.
    The appellant also indicates that she spent over $4,000 in administrative
    and copying costs. PFR File, Tab 1 at 7. In another appeal, the appellant sought
    consequential damages, which an administrative judge dismissed.          Ogburn v.
    Office of Personnel Management, MSPB Docket No. DC-0841-18-0135-P-1,
    Initial Decision (Feb. 27, 2019). The appellant filed a petition for review in that
    4
    matter, and we will issue a separate final decision regarding her request for
    damages.
    We have considered the appellant’s remaining assertions raised on review,
    including that she has not reached retirement age and that she has never been
    identified as having a disability, PFR File, Tab 1 at 8, but we find that they do not
    warrant a different outcome. 2 For the reasons stated above, we deny the petition
    for review and affirm the initial decision. 3
    NOTICE OF APPEAL RIGHTS 4
    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
    2
    The appellant includes with her petition for review correspondence from the Clerk of
    the Court for the U.S. Court of Appeals for the Federal Circuit. PFR File, Tab 1
    at 13-14. These documents are dated before the initial decision was issued. Under
    
    5 C.F.R. § 1201.115
    , the Board will not consider evidence submitted for the first time
    with the petition for review absent a showing that it was unavailable before the record
    was closed despite the party’s due diligence. Avansino v. U.S. Postal Service,
    
    3 M.S.P.R. 211
    , 214 (1980). The appellant has not made such a showing, and we need
    not consider these documents on review.
    3
    On March 1, 2021, the appellant filed pleadings with the Board apparently seeking to
    withdraw her petition for review. PFR File, Tabs 8-9. Thereafter, on March 3, 2021,
    the Office of the Clerk of the Board issued an order requiring the appellant to confirm
    her intent to withdraw the petition for review and her understanding that any withdrawal
    is with prejudice to refiling with the Board. PFR File, Tab 10. In response, the
    appellant confirmed that she did not wish to withdraw her petition for review. PFR
    File, Tab 11.
    4
    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
    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.
    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.
    6
    (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,
    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:
    7
    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. 5   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).
    5
    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 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:                        ______________________________
    Jennifer Everling
    Acting Clerk of the Board
    Washington, D.C.
    

Document Info

Docket Number: DC-0841-19-0345-I-1

Filed Date: 1/10/2024

Precedential Status: Non-Precedential

Modified Date: 1/11/2024