Opinion

Timothy Hall v. Office of Personnel Management

Court: Merit Systems Protection Board
Filed: Jul 18, 2024
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 30.3%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

TIMOTHY H. HALL, DOCKET NUMBER

Appellant, SF-831E-19-0729-I-1

OFFICE OF PERSONNEL DATE: July 18, 2024

MANAGEMENT,

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Timothy H. Hall , Stockton, California, pro se.

Trina Janifer , 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 his Civil Service Retirement System (CSRS) disability retirement

appeal for lack of jurisdiction. Generally, we grant petitions such as this one only

in the following circumstances: the initial decision contains erroneous findings

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).

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 record in this appeal is sparse. However, based on the parties’

pleadings and the extant documentary evidence, the following facts appear to be

true. The appellant was employed with the Department of the Navy and covered

under CSRS. Initial Appeal File (IAF), Tab 3 at 2, Tab 9 at 8. He sustained a

compensable injury and, in 1986, began receiving workers’ compensation

benefits. 2 IAF, Tab 3 at 2. The appellant remains on the workers’ compensation

rolls, but the record does not reflect whether or when he was ever separated from

service. Id.

At some point, the appellant filed an application for disability retirement,

but on December 19, 1991, OPM issued a final decision denying the application

on the basis that the appellant lacked 5 years of creditable service. IAF, Tab 9

at 8. The appellant filed a Board appeal, and on March 4, 1992, the

administrative judge issued an initial decision dismissing the appeal as

withdrawn. Hall v. Office of Personnel Management, MSPB Docket No.

It would appear that the Office of Workers’ Compensation Programs found the

appellant to be totally disabled, but the record is not clear on this point.

SF-831E-92-0412-I-1, Initial Decision (0412 ID) at 1-2 (Mar. 4, 1992); IAF,

Tab 9 at 11-12. It appears that the appellant appealed to the U.S. Court of

Appeals for the Federal Circuit, but the record does not reflect the disposition of

that action. IAF, Tab 9 at 7.

On July 15, 2010, the appellant again contacted OPM concerning his

disability retirement. Id. OPM issued a reply letter dated September 20, 2012,

notifying the appellant that “all due process [had] been exhausted” with regard to

his disability retirement claim, and that any further inquiries must be directed to

the Board. Id. The appellant claims not to have received this letter until he

contacted OPM again some 7 years later. IAF, Tab 3 at 1-2. Specifically, in the

summer of 2019, the appellant contacted OPM to renew his pursuit of disability

retirement benefits. Id. at 1. On August 26, 2019, OPM responded by referring

the appellant to its September 20, 2012 letter. IAF, Tab 1 at 9.

On September 25, 2019, the appellant filed the instant appeal, indicating

that he was appealing a denial of disability retirement benefits dated

September 20, 2012. Id. at 2-3, 12. The administrative judge issued an

acknowledgment order, informing the appellant that the Board may lack

jurisdiction over his appeal if OPM has not issued a final decision. IAF, Tab 2

at 2. The administrative judge also notified the appellant that his appeal appeared

to be untimely, and she apprised him of the Board’s timeliness and good cause

standards. Id. at 3-4. She ordered the parties to file evidence and argument on

these issues. Id. at 2-6. After the parties responded, the administrative judge

issued an initial decision dismissing the appeal for lack of jurisdiction or

alternatively as res judicata. IAF, Tab 10, Initial Decision (ID). She did not

reach the timeliness issue. ID at 10 n.1.

The appellant filed a petition for review, stating that he filed the instant

appeal based on incorrect instructions from OPM, and that he “should be able to

close this appeal” and reapply for disability retirement. Petition for Review

(PFR) File, Tab 1 at 1. The Clerk of the Board issued an order, inquiring whether

the appellant wished to withdraw his petition for review. PFR File, Tab 3. The

appellant responded that he does not wish to withdraw his petition for review, and

that he only wants to know whether a withdrawal would enable him to file a new

application for disability retirement. PFR File, Tab 4. OPM has not filed a

response.

ANALYSIS

The Board’s jurisdiction to adjudicate CSRS appeals derives from statute:

“[A]n administrative action or order affecting the rights or interests of an

individual or of the United States under this subchapter may be appealed to the

Merit Systems Protection Board under procedures prescribed by the Board.”

5 U.S.C. § 8347(d)(1). For purposes of CSRS disability retirement, the Board has

jurisdiction over final decisions issued by OPM under 5 C.F.R. § 831.109(f). See

Watson v Office of Personnel Management, 50 M.S.P.R. 546, 548 (1991);

5 C.F.R. § 831.110.

In this case, we agree with the administrative judge that OPM’s

September 20, 2012 letter does not constitute an appealable “final decision”

within the meaning of 5 C.F.R. § 831.109(f). ID at 4-5; see Muyco v. Office of

Personnel Management, 104 M.S.P.R. 557, ¶ 11 (2007). It is not styled as such,

it does not purport to constitute a ruling on any application, it contains no

substantive discussion of the appellant’s claim, and it does not contain any notice

of appeal rights. IAF, Tab 9 at 15; cf. 5 C.F.R. § 831.109(c), (f) (setting forth the

requirements for an OPM final decision). Underscoring the fact that the letter

itself does not constitute a final decision is its reference back to the final decision

issued on December 19, 1991. IAF, Tab 9 at 8, 15. For these same reasons, we

find that the August 26, 2019 letter does not constitute an appealable final

decision. IAF, Tab 1 at 9. In light of this determination, we do not reach the

administrative judge’s alternative finding that, if either of these letters constituted

a new final decision within the Board’s jurisdiction, the appeal would be barred

as res judicata. ID at 5.

However, to the extent that the appellant is attempting to contest OPM’s

December 19, 1991 final decision, we find that this matter is res judicata. Under

the doctrine of res judicata, a valid, final judgment on the merits of an action bars

a second action involving the same parties or their privies based on the same

cause of action. Peartree v. U.S. Postal Service, 66 M.S.P.R. 332, 337 (1995).

Res judicata is applicable if: (1) the prior judgment was rendered by a forum

with competent jurisdiction; (2) the prior judgment was a final judgment on the

merits; and (3) the same cause of action and the same parties or their privies were

involved in both cases. Id. We find that all three elements are satisfied with

respect to OPM’s December 19, 1991 denial of the appellant’s disability

retirement application. As the administrative judge in that appeal correctly

found, the Board had jurisdiction under 5 U.S.C. § 8347(d). 0412 ID at 1; IAF,

Tab 9 at 11. The appellant’s withdrawal of that appeal was tantamount to a

judgment on the merits, and the same parties and the same cause of action are at

issue. See Brown v. Department of the Navy, 102 M.S.P.R. 377, ¶ 10 (2006)

(treating a dismissal as withdrawn as a final judgment on the merits for purposes

of res judicata); Frias v. U.S. Postal Service, 63 M.S.P.R. 276, 280, (stating that,

for res judicata purposes, a cause of action is the set of facts which gives an

appellant the right to seek relief from an agency), aff’d, 43 F.3d 1486 (Fed. Cir.

1994) (Table).

Based on his pleadings, it appears that the appellant is not requesting that

the Board reopen his prior appeal. PFR File, Tab 1 at 1. Nor would the Board be

inclined to grant such a request because its authority to reopen an appeal is

limited by the requirement that it be exercised within a reasonable amount of

time, which is generally measured in weeks rather than years. See Lauer v.

Department of Transportation, 65 M.S.P.R. 224, 226 (1994). Not only have more

than 30 years elapsed since the Board issued its final decision, but the appellant

has not provided any sort of evidence or argument casting doubt on the

correctness of the result. He does, however, appear to allege that circumstances

have changed so that he is now eligible for disability retirement.

In that regard, the appellant states that, regardless of whether he had

5 years of creditable service at the time of his original disability retirement

application, as required under 5 U.S.C. § 8337(a), he now satisfies that

requirement because he has remained on the Federal employment rolls

notwithstanding his receipt of workers’ compensation benefits. 3 PFR File, Tab 1

at 1; IAF, Tab 1 at 3, Tab 3 at 2. The record contains insufficient information for

us to make any findings on this matter, and in any event, the authority to make

such determinations in the first instance belongs to OPM and not the Board. See

5 U.S.C. § 8347(b); Lary v. U.S. Postal Service, 108 M.S.P.R. 145, ¶ 7 (2007);

see also 5 U.S.C. § 1205(g) (prohibiting the Board from issuing advisory

opinions). However, because the appellant’s previous disability retirement

application has already been fully adjudicated, OPM will only make a new

determination if the appellant files a new application for disability retirement.

See 5 U.S.C. § 8337(a); Muyco, 104 M.S.P.R. 557, ¶ 11 (2007) (“[O]nce OPM has

previously issued a final decision on an individual’s entitlement to a CSRS

retirement annuity, OPM will not issue another decision unless the individual

submits new evidence that establishes actual entitlement to an annuity.”);

5 C.F.R. § 831.104(a). The appellant is not precluded from filing a new disability

retirement application with OPM based on a change in his eligibility status since

his previous application. See Greenwood v. Office of Personnel Management,

10 M.S.P.R. 88, 90 (1982). Nevertheless, we express no opinion on whether any

such application would be timely under 5 U.S.C. § 8337(b) and 5 C.F.R.

§ 831.1203(a)(5), or whether the appellant now, in fact, meets the disability

retirement criteria of 5 U.S.C. § 8337(a) and 5 C.F.R. § 831.1203(a).

Under 5 U.S.C. § 8332(f), “credit shall be allowed for leaves of absence without pay

granted an employee while performing military service or while receiving [workers’

compensation] benefits under subchapter I of chapter 81 of this title.”

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

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:

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.

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

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:

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).

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