Opinion

Hazel Givens v. Office of Personnel Management

Court: Merit Systems Protection Board
Filed: Nov 7, 2024
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 32.8%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

HAZEL D. GIVENS, DOCKET NUMBER

Appellant, AT-844E-20-0440-I-1

OFFICE OF PERSONNEL DATE: November 7, 2024

MANAGEMENT,

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Hazel D. Givens , Callahan, Florida, pro se.

Shawna Wheatley , Washington, D.C., for the agency.

BEFORE

Cathy A. Harris, Chairman

Raymond A. Limon, Vice Chairman

Henry J. Kerner, Member

FINAL ORDER

¶1 The appellant has filed a petition for review of the initial decision, which

affirmed the reconsideration decision of the Office of Personnel Management

denying her application for a disability retirement annuity under the Federal

Employees’ Retirement System (FERS). On petition for review, the appellant

argues that the initial decision was based solely on her April 14, 2018 femur

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

injury, for which she underwent surgery and has recovered, whereas the basis for

her retirement application included her right knee or bilateral knee problems that

began in 1995. She appears to take issue with the administrative judge’s finding

that her continued absences from work, beginning on April 16, 2018, were not

supported by corroborating medical evidence and testimony. For the first time

with her petition for review, she submits medical evidence and other

documentation of her prior knee injuries and continued, intermittent treatment for

her bilateral knees through May 2020. 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).

¶2 Concerning the evidence submitted by the appellant for the first time with

her petition for review, the Board will not consider such evidence 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). In

addition, the Board will not grant a petition for review absent a showing that it is

of sufficient weight to warrant an outcome different from that of the initial

decision. See Spivey v. Department of Justice, 2022 MSPB 24, ¶ 15; Russo v.

Veterans Administration, 3 M.S.P.R. 345, 349 (1980). Here, the appellant has

asserted that she requested her injury records from the Office of Workers’

Compensation Programs (OWCP) in April 29, 2019, Petition for Review (PFR)

File, Tab 1 at 5-6; Initial Appeal File (IAF), Tab 1 at 10, but she does not identify

whether any of the documents she submits on review that are dated before that

request are the documents she requested from OWCP, or when she received them,

PFR File, Tab 1 at 7-45. The appellant also submits, for the first time on review,

doctor’s notes from visits between August 24, 2018, and May 11, 2020, which

generally support her testimony regarding knee pain and problems ambulating.

Id. at 46-61. However, she has not explained why she could not obtain these

records and submit them to the administrative judge prior to the close of the

record below. PFR File, Tab 1 at 46-61. Even if the appellant could establish

that any of the documents she submits on review were unavailable, despite her

due diligence, before the close of the record below, the totality of the evidence

would not show that she was unable to render useful and efficient service in her

position. 2 See 5 U.S.C. § 8451(a)(1)(B) (stating that an employee shall not be

eligible for disability retirement under the FERS if the position is one in which

the employee would be able to “render useful and efficient service”); see Rucker

v. Office of Personnel Management, 117 M.S.P.R. 669, ¶ 10 (2012) (describing

the two methods by which the appellant can meet this statutory requirement);

5 C.F.R. § 844.103(a)(2). Therefore, the newly submitted evidence does not

warrant an outcome different from that of the initial decision, and we affirm the

initial decision.

We assume without deciding that the appellant’s bilateral knee problems were related

to a medical condition on which she based her disability application. IAF, Tab 5 at 13,

38; see Chappell v. Office of Personnel Management, 79 M.S.P.R. 302, ¶¶ 6-7 (1998)

(explaining that the Board may not consider evidence relating to a “totally different or

additional medical condition” that was never the subject of a retirement application).

NOTICE OF APPEAL RIGHTS 3

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. 4 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 following