Vanhorn v. MSPB

Case: 21-2204 Document: 35 Page: 1 Filed: 05/10/2022
NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
JENIFER A. VANHORN,
Petitioner
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent
______________________
2021-2204
______________________
Petition for review of the Merit Systems Protection
Board in No. DE-0890-21-0200-I-1.
______________________
Decided: May 10, 2022
______________________
JENIFER A. VANHORN, Wichita, KS, pro se.
ELIZABETH WARD FLETCHER, Office of General Counsel,
United States Merit Systems Protection Board, Washing-
ton, DC, for respondent. Also represented by TRISTAN L.
LEAVITT, KATHERINE MICHELLE SMITH.
______________________
Before DYK, REYNA, and STOLL, Circuit Judges.
PER CURIAM.
Case: 21-2204 Document: 35 Page: 2 Filed: 05/10/2022
2 VANHORN v. MSPB
Jenifer VanHorn challenges the decision of the Merit
Systems Protection Board dismissing her appeal for lack of
jurisdiction. For the reasons below, we affirm.
BACKGROUND
Ms. VanHorn is a retired United States Postal Service
employee who presently receives a disability retirement
annuity. SAppx. 18. 1 Ms. VanHorn alleges that she ap-
plied for disability retirement from the USPS on August
15, 2018, and that the Office of Personnel Management
wrongfully denied her application several times before
granting it almost two years later on May 18, 2020. During
the intervening period, in 2019, Ms. VanHorn claims that
the USPS “unlawfully terminated” her health insurance
and her life insurance as of January 31, 2019. SAppx. 18.
She also alleges that she was wrongfully terminated by the
USPS in September 2019, and that the termination took
retroactive effect to March 30, 2019. SAppx. 18.
Following the grant of Ms. VanHorn’s disability retire-
ment application, OPM issued a lump sum retroactive pay-
ment to Ms. VanHorn representing the gross benefits due
to her from March 30, 2019 (the effective date of her termi-
nation), through September 30, 2020 (the date after which
her monthly payments began). A notice accompanying the
payment explained that the following was being withheld
from the lump sum: gross interim benefits, federal income
tax, and premiums for “Additional Optional Life Insur-
ance,” “Family Life Insurance,” “Standard Optional Life In-
surance,” and “Basic Life Insurance.” SAppx. 32. The
notice also explained that these premiums and federal in-
come tax would also be withheld from her gross monthly
benefit moving forward. SAppx. 31.
1 Citations to “SAppx.” refer to the Supplemental
Appendix attached to the Government’s brief.
Case: 21-2204 Document: 35 Page: 3 Filed: 05/10/2022
VANHORN v. MSPB 3
On May 6, 2021, Ms. VanHorn filed an appeal with the
Board “against OPM for fraud,” for re-enrolling her in life
insurance without her consent or dated signature and sub-
sequently deducting “all premium options” from her retro-
active lump sum payment. SAppx. 17–18. Ms. VanHorn
alleged that OPM “refuses to follow procedures of Due Pro-
cess” and continues to violate her civil rights, enumerating
various OPM actions that were, in her view, “direct evi-
dence of [its] unabating discriminatory and retaliatory
practices.” SAppx. 17. One of these practices included “un-
lawfully terminat[ing her] health and life insurance.”
SAppx. 18. Ms. VanHorn sought “[a]ctual compensatory
damages” and “nonpecuniary compensatory damages,” “le-
gal costs and fees,” equitable relief, and “corrective
measures.” SAppx. 18.
On May 28, 2021, the Administrative Judge (AJ) issued
an initial decision dismissing Ms. VanHorn’s appeal for
lack of jurisdiction. SAppx. 1–3. The AJ characterized
Ms. VanHorn’s appeal as arising out of her “re-enrollment
in a Federal Employees Health Benefits plan by [OPM],
and the later termination of her coverage under the same
plan.” SAppx. 1. The AJ explained that although the
Board issued an acknowledgement order apprising
Ms. VanHorn of her burden to establish Board jurisdiction
over her appeal, Ms. VanHorn did not produce evidence of
a final decision from OPM. SAppx. 2–3. In response to the
acknowledgement order, Ms. VanHorn submitted a letter
that she sent to OPM requesting a reconsideration deci-
sion, but she filed her appeal with the Board before hearing
back from OPM. SAppx. 2. The AJ explained that
Ms. VanHorn had therefore not established that the Board
had jurisdiction over her claims because she had not shown
that OPM had rendered a final decision. SAppx. 2–3.
On June 30, 2021, Ms. VanHorn filed a document with
the Board asking the Board to “[c]ompel OPM to issue the
FAD [Final Agency Decision].” SAppx. 44–49. A week
later, on July 6, 2021, the Board informed Ms. VanHorn
Case: 21-2204 Document: 35 Page: 4 Filed: 05/10/2022
4 VANHORN v. MSPB
that it was unclear whether her document was a petition
for review addressed to the full Board and advised her that
it would only treat her filing as such if she confirmed that
was her intent by July 20, 2021. SAppx. 50–52.
Ms. VanHorn did not file a response to the Board’s letter.
Accordingly, the initial decision became final as of July 2,
2021.
Ms. VanHorn timely appealed. We have jurisdiction
under 28 U.S.C. § 1295(a)(9).
DISCUSSION
Ms. VanHorn makes many arguments on appeal.
First, she argues that the Board “failed to take into consid-
eration that [she] did not sign [a] life insurance re-enroll-
ment form,” and that OPM “fraudulently deducted life
insurance” premium payments from her lump sum retroac-
tive payment and monthly retirement benefits. Peti-
tioner’s Br. 2. Second, she reiterates her Due Process and
discrimination claims. Id. Third, Ms. VanHorn argues
again that OPM unlawfully terminated her health insur-
ance coverage and asks that OPM immediately reinstate
her health insurance coverage without retroactively de-
ducting the premiums from her benefits. Id. at 2–3. For
the first time, Ms. VanHorn argues that the date from
which OPM calculated her retroactive benefits payment
was improper; and that OPM must correct her 1099-R form
for fiscal year 2020 to reflect that she was on disability re-
tirement. Id. at 3.
Whether the Board has jurisdiction over an appeal is a
question of law that we review de novo. See Bryant v. Merit
Sys. Prot. Bd., 878 F.3d 1320, 1325 (Fed. Cir. 2017). The
Board may exercise jurisdiction over administrative ap-
peals only when authorized by a “law, rule, or regulation.”
5 U.S.C. § 7701(a). We agree with the Board that it lacked
jurisdiction over Ms. VanHorn’s appeal.
Case: 21-2204 Document: 35 Page: 5 Filed: 05/10/2022
VANHORN v. MSPB 5
We begin with Ms. VanHorn’s claim that OPM fraudu-
lently deducted life insurance premiums from her retroac-
tive lump sum payment and from her monthly benefits
even though she did not sign a life insurance enrollment
form. Petitioner’s Br. 1. Although the Board characterized
Ms. VanHorn’s claims as founded on OPM’s administration
of health insurance benefits, her claims are undisputedly
founded on OPM’s administration of the Federal Employ-
ees’ Group Life Insurance Act (FEGLIA). See SAppx. 17
(stating “I, Jenifer A. VanHorn . . . am requesting to file a
formal complaint against OPM for fraud, ‘re’enrolling life
insurance without my consent, signature, nor dated, de-
ducting all premium options”); see also Petitioner’s Br. 2;
SAppx. 30 (outlining Ms. VanHorn’s “life insurance cover-
age under the Federal Employees’ Group Life Insurance
Program”). And, as we have held, the Board “does not have
jurisdiction over appeals arising from OPM’s administra-
tion of the Federal Employees’ Group Life Insurance Act
(‘FEGLIA’).” Miller v. Off. of Pers. Mgmt., 449 F.3d 1374,
1377 (Fed. Cir. 2006); 5 U.S.C. §§ 8701–16.
We reach this conclusion notwithstanding the Board’s
different characterization of Ms. VanHorn’s claims. We
may affirm an agency’s decision on “grounds other than
those relied upon in rendering [the agency’s] decision,
when upholding the agency’s decision does not depend on
making a determination of fact not previously made by the
agency,” including in situations where the Board lacks ju-
risdiction. McCarthy v. Merit Sys. Prot. Bd., 809 F3d 1365,
1373 (Fed. Cir. 2016) (quoting In re Comiskey, 554 F.3d
967, 974 (Fed. Cir. 2009)); see also Sec. & Exch. Comm’n
v. Chenery Corp., 318 U.S. 80, 88 (1943) (“It would be
wasteful to send a case back to a lower court to reinstate a
decision which it has already made but which the appellate
court concluded should properly be based on another
ground within the power of the appellate court to formu-
late.”). Upholding the Board’s determination that it does
not have jurisdiction over any of Ms. VanHorn’s claims
Case: 21-2204 Document: 35 Page: 6 Filed: 05/10/2022
6 VANHORN v. MSPB
does not require our court to make factual findings not pre-
viously made by the Board, and instead requires only ap-
plying the relevant statutes to the undisputed facts of the
case. 5 U.S.C. §§ 8701–16. Ms. VanHorn’s primary claim
is founded in her dispute with OPM’s administration of
FEGLIA, and more specifically OPM’s allegedly improper
collection of life insurance premiums, a claim over which
the Board does not have jurisdiction. We thus affirm the
Board’s decision to dismiss this portion of Ms. VanHorn’s
appeal for lack of jurisdiction.
We turn next to Ms. VanHorn’s claim that OPM “un-
lawfully terminated” her health insurance coverage; her al-
legations of various constitutional rights and statutory
violations and crimes; 2 and her demand for damages and
fees. SAppx. 2–3, 17–18, 26, 29. Although we liberally con-
strue pro se filings like Ms. VanHorn’s, this does not relieve
her of her burden to establish jurisdiction. Lourens v. Merit
Sys. Prot. Bd., 193 F.3d 1369, 1370 (Fed. Cir. 1999);
5 C.F.R. § 1201.57(b). Ms. VanHorn did not produce any
evidence of an OPM reconsideration decision or an OPM
initial decision not subject to reconsideration. Further-
more, there was no basis for concluding that OPM improp-
erly failed to render a decision. The Board found that the
three weeks (at most) that passed between the date
Ms. VanHorn allegedly sent her letter requesting a recon-
sideration decision to OPM and the date Ms. VanHorn filed
her appeal to the Board was not sufficient to “construe
OPM’s lack of response as a constructive final decision.”
SAppx. 2–3. Because there was no final decision from OPM
2 Ms. VanHorn alleges violations of constitutional
Due Process; the Americans with Disabilities Act of 1990;
the Rehabilitation Act of 1973; the Civil Rights Act of 1964;
Title VII; and perpetration of trespass against common
laws, oversight policies regarding pay and leave, and pro-
hibited personnel practices.
Case: 21-2204 Document: 35 Page: 7 Filed: 05/10/2022
VANHORN v. MSPB 7
regarding her health insurance coverage, the Board cor-
rectly determined that it did not have jurisdiction over
these claims. See 5 U.S.C. §§ 8347(d), 8461(e); 5 C.F.R.
§§ 831.110, 841.308. We thus affirm the Board’s decision
to dismiss this portion of Ms. VanHorn’s appeal for lack of
jurisdiction. 3
Finally, Ms. VanHorn argues that the start date of her
retroactive disability retirement payments was improperly
determined and that OPM must correct her 2020 1099-R
form. These claims, raised for the first time on appeal, are
waived. Bosley v. Merit Sys. Prot. Bd., 162 F.3d 665, 668
(Fed. Cir. 1998) (“A party in an MSPB proceeding must
raise an issue before the administrative judge” if the issue
is “to be preserved for review in this court.”). 4
CONCLUSION
For the above reasons, we affirm the decision of the
Board.
AFFIRMED
COSTS
No costs.
3 Ms. VanHorn can raise these issues before the
Board once OPM issues a final decision.
4 To the extent that Ms. VanHorn’s complaint, liber-
ally construed, did properly raise a challenge to her disa-
bility retirement payments and tax document, the Board
would not have had jurisdiction due to Ms. VanHorn’s fail-
ure to obtain a final decision from OPM regarding those
claims. See 5 U.S.C. §§ 8347(d), 8461(e); 5 C.F.R.
§§ 831.110, 841.308.