Opinion

Donnell Jackson v. Office of Personnel Management

Court: Merit Systems Protection Board
Filed: Mar 30, 2026
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 39.8%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

DONNELL LAMAR JACKSON, DOCKET NUMBER

Appellant, AT-844E-24-0671-I-1

OFFICE OF PERSONNEL DATE: March 27, 2026

MANAGEMENT,

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Donnell Lamar Jackson , Montgomery, Alabama, pro se.

Eva Ukkola and James Mercier , Esquire, Washington, D.C., for the agency.

BEFORE

Henry J. Kerner, Vice Chairman

James J. Woodruff II, 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) denying his application for disability retirement benefits under the Federal

Employees’ Retirement System (FERS). Generally, we grant petitions such as this

one only in the following circumstances: the initial decision contains erroneous

A nonprecedential order is one that the Board has determined does not add significantly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 Parties may cite nonprecedential orders, but such orders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

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 he is entitled to disability

retirement benefits based on worsening health conditions caused by his former

position, that he should receive service credit for the time spent receiving Office of

Workers’ Compensation Programs (OWCP) benefits, and that the OPM Handbook

states that he must file for retirement while on OWCP. Petition for Review File,

Tab 1 at 1. Contrary to the appellant’s assertions, however, the administrative

judge was correct in finding that “the appellant’s time on OWCP rolls after being

terminated from his position cannot be used to satisfy the 18 months of creditable

civilian service.” Initial Appeal File, Tab 19, Initial Decision (ID) at 5. In the

initial decision, the administrative judge relied on 5 U.S.C. § 8411, which provides

that creditable service includes “employment as an employee . . . after December

31, 1986,” but that “[c]redit may not be allowed for a period of separation from the

service in excess of 3 calendar days.” 5 U.S.C. § 8411(a)(2), (b)(1); ID at 3-4. The

Board has found that the plain language of the statutes concerning annuity benefits

and OWCP benefits unambiguously require that, in order for an individual to

receive service credit for those periods during which he received OWCP benefits,

he must return to duty upon cessation of those benefits, regardless of whether he

was an “employee or former employee” during the time he received such benefits.

See Losh v. Office of Personnel Management , 37 M.S.P.R. 150, 152-53 (1988). 2

Thus, as the appellant was terminated from Federal service during his probationary

period effective June 29, 2023, and has not returned to Federal service to date, he is

not entitled to service credit for any period after the effective date of his

termination. ID at 2, 4-5. As observed by the administrative judge, the appellant

only attained a total of 9 months and 18 days of creditable civilian service, ID at 2,

which is less than the 18 months required.

Additionally, although the OPM Handbook provides, as a general rule, that

separated employees must apply for retirement benefits to preserve their rights

under FERS, they still are only entitled to retirement benefits if they otherwise

qualify for them. OPM, Civil Service Retirement System and FERS Handbook for

Personnel and Payroll Offices, Ch. 102, § 102A3.1-1(A), (Oct. 2013),

https://www.opm.gov/retirement-center/publications-forms/csrsfers-handbook/

c102.pdf (last visited Mar. 27, 2026) (stating that if the separated employee is

eligible for both workers’ compensation and retirement benefits, he must choose

between them). As explained above, we affirm OPM’s determination that the

appellant is not eligible for disability retirement benefits.

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

In coming to its determination in Losh, the Board analyzed 5 U.S.C. §§ 8151(a) and

8332(f), with the latter statute concerning creditable service under the Civil Service

Retirement System. The FERS statute concerning creditable service, 5 U.S.C. § 8411(d),

has very similar language to 5 U.S.C. § 8332(f). Thus, the principles found in Losh apply

here.

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.

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:

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

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.

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

address: