# Jonathan McFarlane v. Office of Personnel Management

> Merit Systems Protection Board · June 13, 2024

URL: https://www.frixlaw.com/law-library/cases/10033717

## Case

- **Court:** Merit Systems Protection Board
- **Decided:** June 13, 2024
- **Precedential status:** Unpublished
- **Opinion:** Opinion
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10033717

## How later opinions describe it (automated extraction)

- finding that the Board lacked jurisdiction over the appellant’s claims that he was not receiving his elected health or life insurance benefits

## Opinion text

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD

JONATHAN M. MCFARLANE, DOCKET NUMBER
Appellant, NY-0841-19-0076-I-1

v.

OFFICE OF PERSONNEL DATE: June 13, 2024
MANAGEMENT,
Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Jonathan M. McFarlane , Queens Village, New York, pro se.

Jane Bancroft , 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 his appeal of a decision of the Office of
Personnel Management (OPM) denying his request for a refund of deductions
from his disability retirement annuity under the Federal Employees’ Retirement
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

System (FERS) that purportedly were made for the Federal Employees Health
Benefits (FEHB) program. 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 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 argues that the administrative judge
misconstrued his claim as concerning OPM’s administration of the
FEHB program. Petition for Review (PFR) File, Tab 1 at 5-6. Specifically, he
asserts that OPM began making withholdings from his FERS disability retirement
annuity from March 4, 2011, but he was not covered by an FEHB carrier until
August 1, 2014. Id. at 5. He further contends that, although OPM labeled its
withholdings as FEHB premiums, there is no evidence that OPM provided
premiums to any participating FEHB carrier during the relevant period. Id. at 6.
Thus, because he claims that there is no indication that the disputed withholdings
implicated the FEHB program, he argues that the appealed matter concerns
OPM’s administration of his FERS disability retirement annuity. Id. at 5-6.
We are not persuaded by the appellant’s arguments. As properly noted in
the initial decision, the U.S. Court of Appeals for the Federal Circuit has rejected
the argument that any reduction in a retiree’s annuity payments affects the rights
3

or interests of the annuitant under the retirement statute and therefore is
reviewable by the Board. Initial Appeal File (IAF), Tab 20, Initial Decision (ID)
at 11; see Miller v. Office of Personnel Management, 449 F.3d 1374, 1379-80
(Fed. Cir. 2006). The court found that this theory would give the Board very
broad authority over a wide variety of substantive claims simply because of the
mechanism used to collect the obligations stemming from the claims, contrary to
Congressional intent. ID at 11; see Miller, 449 F.3d at 1379-80. Here, the
appealed matter concerns the appellant’s request to OPM for a refund of
deductions from his FERS disability retirement annuity. ID at 1, 3-5. However,
his request for a refund is based on the premise that the deductions were improper
because he did not receive any FEHB coverage during the relevant period. IAF,
Tab 16 at 4-5; McFarlane v. Office of Personnel Management , MSPB Docket
No. NY-0841-18-0009-I-1, Appeal File, Tab 20 at 6-8. Thus, we find that the
underlying matter concerns OPM’s administration of the FEHB program. We
further find that the administrative judge properly characterized the appellant’s
claim as concerning the FEHB program. ID at 12.
As properly explained in the initial decision, claims concerning the
FEHB program generally are beyond the Board’s jurisdiction. ID at 5;
see Chamblin v. Office of Personnel Management, 112 M.S.P.R. 266, ¶ 7 (2009).
However, the Board has recognized that there are limited exceptions to the
general rule that it lacks jurisdiction over such claims, such as when the claim
arises in the context of a petition for enforcement of a final Board decision or
when the case concerns a request to waive recovery of an annuity overpayment
caused by the retroactive application of premiums for the FEHB program.
ID at 5-6; see Chamblin, 112 M.S.P.R. 266, ¶¶ 11-14.
Here, the administrative judge found that the circumstances of this appeal
do not fall under an exception to the general rule that the Board lacks jurisdiction
4

over claims concerning the FEHB program. 2 ID at 8-12. The administrative
judge considered the appellant’s reliance on Lua v. Office of Personnel
Management, 102 M.S.P.R. 108 (2006), to support his argument that the Board
has jurisdiction over the instant appeal. ID at 8-10. However, the administrative
judge found that Lua is distinguishable because it concerned a petition for
enforcement while the present case does not. ID at 10. The appellant challenges
this finding on review. PFR File, Tab 1 at 5-6.
We agree with the administrative judge’s finding that Lua is
distinguishable because it arose in the context of a compliance proceeding. ID at
10. The Board held in Lua that it had jurisdiction to review OPM’s deductions of
premiums for the Federal Employees’ Group Life Insurance program as an issue
of compliance from the Board’s final decision granting the appellant’s disability
retirement annuity. Lua, 102 M.S.P.R. 108, ¶ 8. Thus, the Board’s jurisdiction in
Lua was based on its enforcement authority. See Hunt v. Office of Personnel
Management, 114 M.S.P.R. 590, ¶ 6 (2010) (explaining that the Board derives its
enforcement authority from 5 U.S.C. § 1204(a)(2), which authorizes the Board to
order any Federal agency or employee to comply with the Board’s decisions and
orders issued under its jurisdiction). Here, however, the appellant has not filed a
petition for enforcement.
Moreover, the administrative judge properly noted in the initial decision
that the appellant is not precluded from seeking relief in a Federal district court
or the U.S. Court of Federal Claims. ID at 13 n.4; see Threadgill v. Merit
Systems Protection Board, 230 F.3d 1372, **1-2 (Fed. Cir. 1999) (Table)
(affirming the Board’s decision, which noted that the appellant could appeal
OPM’s final decisions on her FEHB claims to the appropriate district court or the
U.S. Court of Federal Claims, pursuant to 5 U.S.C. § 8912). The appellant argues

2
The appellant does not dispute, and we discern no reason to disturb, the administrative
judge’s finding that this appeal does not fall under the type of exception arising in cases
concerning requests to waive the repayment of annuity overpayments. PFR File, Tab 1
at 6; ID at 8, 11-12.
5

on review that he cannot bring his case to these courts because he has not made a
claim concerning the FEHB program. PFR File, Tab 1 at 5. We find this
argument unavailing because it does not address the dispositive jurisdictional
issue in this appeal. In addition, we cannot issue an advisory opinion on whether
the appellant can successfully bring his case to another court.
5 U.S.C. § 1204(h).
Accordingly, we affirm the initial decision dismissing this appeal for lack
of jurisdiction. See, e.g., Brown v. Office of Personnel Management,
684 F. App’x 960, 961 (Fed. Cir. 2017) (finding that the Board lacked jurisdiction
over the appellant’s claims that he was not receiving his elected health or life
insurance benefits); 3 Hudson v. Office of Personnel Management, 114 M.S.P.R.
669, ¶¶ 3, 10-12 (2010) (dismissing for lack of jurisdiction the appellant’s appeal
of an OPM reconsideration decision denying his request for a retroactive
adjustment of his health insurance premiums).

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
immediately review the law applicable to your claims and carefully follow all

3
The Board may follow a nonprecedential decision of the U.S. Court of Appeals for the
Federal Circuit when, as here, the Board finds the court’s reasoning persuasive.
Morris v. Department of the Navy, 123 M.S.P.R. 662, ¶ 13 n.9 (2016).
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.
6

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.
7

(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:
8

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.
9

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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10033717. Public record. Not legal advice.