Opinion

Roberta Vojas v. Office of Personnel Management

Court: Merit Systems Protection Board
Filed: Apr 3, 2026
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 40.1%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

ROBERTA LYNN VOJAS, DOCKET NUMBER

Appellant, CH-0841-22-0339-I-2

OFFICE OF PERSONNEL DATE: April 3, 2026

MANAGEMENT,

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Roberta Lynn Vojas , Staunton, Illinois, pro se.

Jo Antonette Bell and Alison Pastor , 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) that the total amount of OPM’s underpayment of Federal Employees’

Retirement System (FERS) disability annuity benefits owed to her was $105.94.

On petition for review, the appellant reargues that OPM improperly designated her

A nonprecedential order is one that the Board has determined does not add significantly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 Parties may cite nonprecedential orders, but such orders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

last date of pay as her annuity commencement date when she elected to receive a

disability retirement annuity effective in September 2009. The appellant also

argues that she achieved 20 years of creditable service, thus entitling her to an early

retirement annuity. 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. Except as expressly MODIFIED to DISMISS the

appellant’s claim that she has sufficient creditable service to qualify for a regular

retirement annuity for lack of jurisdiction and VACATE the administrative judge’s

finding on the merits of that claim, we AFFIRM the initial decision.

On review, the appellant reargues that she reached 50 years of age and

attained at least 20 years of creditable service thus entitling her to an early

retirement annuity. Petition for Review (PFR) File, Tab 1 at 10-17. The

administrative judge found that the appellant did not have 20 years of creditable

service because she did not return to Federal employment after her workers’

compensation benefits expired. Initial Appeal File, Tab 36, Initial Decision

at 9-10. Absent a final decision from OPM, the Board generally lacks jurisdiction

over a FERS retirement appeal. Fletcher v. Office of Personnel Management,

118 M.S.P.R. 632, ¶¶ 2, 5 (2012); 5 C.F.R. § 841.308 (stating that “an individual

whose rights or interests under FERS are affected by a final decision of OPM” may

seek Board review). The appellant has the burden of proving jurisdiction. 5 C.F.R.

§ 1201.56(b)(2)(i)(A). There is no evidence in the record to support a finding that

the appellant applied for a regular retirement annuity benefit or that OPM has

denied an application from the appellant for such benefits. Because the appellant

has not alleged evidence that she applied for a regular retirement annuity or that

OPM has issued a final decision on that application, the Board does not have

jurisdiction over the appellant’s argument that she had sufficient creditable service

to qualify for a regular annuity. We therefore modify the administrative judge’s

initial decision to dismiss this issue for lack of jurisdiction. Because we lack

jurisdiction over this claim, we vacate the administrative judge’s merits

determination.

The appellant raises new allegations of error by the administrative judge in

reply to OPM’s response to her petition for review. PFR File, Tab 7. A reply is

limited to the factual and legal issues raised by another party in response to the

petition for review. Lin v. Department of the Air Force, 2023 MSPB 2, ¶ 8 n.4;

5 C.F.R. § 1201.114(a)(3). It may not raise new allegations of error. Lin,

2023 MSPB 2, ¶ 8 n.4; 5 C.F.R. § 1201.114(a)(3). Because OPM made no

arguments in its response, we do not consider the appellant’s new argument. PFR

File, Tab 5.

For the first time on review, the appellant alleges that her disability

retirement was involuntary. PFR File, Tab 1 at 6-7, 9-11. The Board will not

consider an argument raised for the first time in a petition for review absent a

showing that it is based on new and material evidence not previously available

despite the party’s due diligence. Banks v. Department of the Air Force,

4 M.S.P.R. 268, 271 (1980). The appellant has not established that this argument is

based on evidence that was not previously available to her despite her due

diligence. Therefore, we have not considered the appellant’s new argument. The

appellant may choose to file a new Board appeal challenging her alleged

involuntary retirement. We make no finding regarding the Board’s jurisdiction

over or the timeliness of such an appeal.

NOTICE OF APPEAL RIGHTS 2

The initial decision, as supplemented by this Final Order, constitutes the

Board’s final decision in this matter. 5 C.F.R. § 1201.113. 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).

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.

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. 3 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

address: