Congress explicitly authorized the Board to review directly any provision of any OPM rule or regulation and stated that the decision whether to grant such review was in the Board’s “sole discretion”
How later courts described this case
- Congress explicitly authorized the Board to review directly any provision of any OPM rule or regulation and stated that the decision whether to grant such review was in the Board’s “sole discretion”
Written by the judges who cited it.
The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
STEPHANIE REDDING, DOCKET NUMBER
Petitioner, CB-1205-21-0015-U-1
v.
OFFICE OF PERSONNEL DATE: May 19, 2023
MANAGEMENT,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Stephanie Redding, Largo, Maryland, pro se.
Roxann Johnson, Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Member 2
FINAL ORDER
¶1 The petitioner requests that we review, pursuant to our authority under
5 U.S.C. § 1204(f), an Office of Personnel Management (OPM) regulation,
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
Member Leavitt’s name is included in decisions on which the three -member Board
completed the voting process prior to his March 1, 2023 departure.
2
5 C.F.R. § 831.1207, that provides that an employee’s disability retirement
application shall be considered withdrawn under certain circumstances. For the
reasons set forth below, we DENY the petitioner’s request because it does not
meet our discretionary review criteria.
BACKGROUND
¶2 The petitioner was a Federal Air Marshal with the Transportation Security
Administration (TSA) when she applied for disability retirement under the
Federal Employees’ Retirement System (FERS). See Redding v. Office of
Personnel Management, MSPB No. DC-0845-21-0312-I-1, Initial Appeal File
(0312 IAF), Initial Decision (0312 ID), Tab 26 at 2-3. After initially approving
the application, OPM rescinded its approval upon learning that the TSA had
reassigned the petitioner to the position of Law Enforcement Specialist with the
Federal Law Enforcement Training Center. 0312 ID at 3. The petitioner
appealed OPM’s final decision to the Board. 0312 IAF, Tab 1. The
administrative judge concluded that the petitioner was required to file her
disability retirement application from the Law Enforcement Specialist position
and that OPM was correct in rescinding its approval. 0312 ID at 7. The
petitioner did not file a petition for review with the Board and therefore the initial
decision became final by operation of law on August 17, 2021. Id. at 9.
¶3 The petitioner then filed this request for the Board to review 5 C.F.R.
§ 831.1207(c) and (d), which provide:
(c) OPM considers voluntary acceptance of a permanent position in
which the employee has civil service retirement coverage, including
a position at a lower grade or pay level, to be a withdrawal of the
employee’s disability retirement application. The employing agency
must notify OPM immediately when an applicant for disability
retirement accepts a position of this type.
(d) OPM also considers a disability retirement application to be
withdrawn when the agency reports to OPM that it has reassigned an
applicant or an employee has refused a reassignment to a vacant
position, or the agency reports to OPM that it has successfully
3
accommodated the medical condition in the employee’s current
position. Placement consideration is limited only by agency
authority and can occur after OPM’s allowance of the application up
to the date of separation for disability retirement. The employing
agency must notify OPM immediately if any of these events occur.
5 C.F.R. § 831.1207(c) and (d).
¶4 The petitioner asserts that the regulation requires an employee to commit a
prohibited personnel practice (PPP) by discriminating on the basis of disability,
as prohibited under section 501 of the Rehabilitation Act of 1973, 29 U.S.C. § 79.
5 U.S.C. § 2302(b)(1)(D). She states that it further violates 5 U.S.C.
§ 2301(b)(2), which provides that “[a]ll employees and applicants for
employment should receive fair and equitable treatment in all aspects of
personnel management without regard to . . . [disabilities] 3 . . . .” Request File
(RF), Tab 1 at 1-2. The petitioner claims that 5 C.F.R. § 831.1207 is “unfairly
prejudicial” to the employee because it allows agencies to place an employee into
a different position “without regard to the efficacy of the reassignment.” Id. at 4.
She states that if a reassignment “fails,” the employee should be given an
opportunity to pursue disability retirement from the last position the employee
held where “the employee was able to successfully perform the essential duties as
required.” Id. at 5. She asserts that the Americans with Disabilities Act and the
Rehabilitation Act require that a reassignment “be effective to be successful.” Id.
at 6.
¶5 OPM responds that the petitioner failed to explain how the regulation
requires the commission of a PPP. RF, Tab 4 at 5. OPM states that 5 C.F.R.
§ 831.1207 does not govern determinations as to whether an agency’s offer of a
reassignment is appropriate under the circumstances or allow OPM to determine
whether an agency has successfully accommodated an employee’s disability. Id.
at 6. OPM further states that all eligible employees may seek disability
3
Sections 2301 and 2302 anachronistically refer to a disability as a “handicapping
condition.”
4
retirement approval from their final position of record whether or not the
employee’s disability retirement application from a previous position was deemed
withdrawn under section 831.1207(c) or (d). Id. at 7. OPM asserts that
petitioner’s argument is “basically that she has a preferable approach to
§ 831.1207 and that is not a basis for the Board to conduct a regulation review
under 5 U.S.C. § 1204(f).” Id. at 7-8. 4
ANALYSIS
¶6 The Board’s regulation review authority is discretionary. 5 U.S.C.
§ 1204(f)(1)(B) (providing that the Board grants a petition for regulation review
“in its sole discretion.”). See Clark v. Office of Personnel Management, 95 F.3d
1139, 1141 (Fed. Cir. 1996) (Congress explicitly authorized the Board to review
directly any provision of any OPM rule or regulation and stated that the decision
whether to grant such review was in the Board’s “sole discretion”). To guide us
in deciding whether to exercise our discretion, we consider, among other things,
the likelihood that the issue will be timely reached through ordinary channels of
appeal, the availability of other equivalent remedies, the extent of the regulation’s
application, and the strength of the arguments against the validity of its
implementation. McDiarmid v. U.S. Fish and Wildlife Service, 19 M.S.P.R. 347,
349 (1984). Upon careful consideration of these factors, we decline the
petitioner’s request to review 5 C.F.R. § 831.1207(c) and (d).
¶7 The issues raised by the petitioner could be timely reached through ordinary
channels of appeal. Indeed, the petitioner already has availed herself of her right
4
OPM notes that 5 C.F.R. § 831.1207(c) and (d) do not apply to the petitioner because
those regulations apply to disability benefits under the Civil Service Retirement
System, and the petitioner is covered by FERS. RF, Tab 4 at 3. OPM states that “there
are no similar withdrawal regulations governing FERS disability annuity applications.”
Id. We find that the petitioner nevertheless is an “interested person” who has standing
to request review under 5 U.S.C. § 1204(f) given that she filed a disability retirement
application and she believes these provisions were applied by OPM in the denial of that
application.
5
to appeal to the Board from unfavorable OPM decisions. The petitioner has
previously appealed from an OPM reconsideration letter that dismissed her
disability retirement application because her application was based on her Federal
Air Marshal position. 0312 IAF, Tab 1. The administrative judge found that the
petitioner was reassigned to the position of Law Enforcement Specialist as a
reasonable accommodation. 0312 ID at 7. The administrative judge concluded
that the petitioner was required to file her disability retirement application from
the Law Enforcement Specialist position and that OPM was correct in rescinding
its approval. Id. Subsequently, the petitioner filed a disability retirement
application from her Law Enforcement Specialist position a nd, following an
unfavorable disposition by OPM, she appealed OPM’s determination regarding
that application to the Board. See Redding v. Office of Personnel Management,
MSPB No. DC-844E-22-0366-I-1, Initial Appeal File, Tab 1. Thus, the petitioner
has demonstrated that she can appeal from OPM decisions regarding her disability
retirement benefits. The same arguments that she raises here may be raised in the
ordinary appeal process.
¶8 Second, through the appeal process, the petitioner may obtain equivalent
remedies. As OPM notes, the petitioner was entitled to reapply for disability
benefits from her final position of record. RF, Tab 4 at 11 (citing 5 U.S.C.
§§ 8337(e), 8451(b)). In fact, subsequent to the filing of the instant request for
regulation review, the petitioner reapplied for disability benefits from her Law
Enforcement Specialist position. Although OPM denied her application, as noted
above, she challenged that determination before the Board in MSPB
No. DC-844E-22-0366-I-1. Additionally, to the extent that the petitioner believes
that she was not offered a reasonable accommodation for her disability, she may
have remedies through her employing agency’s discrimination complaint process.
See 29 C.F.R. §§ 1614.101-1614.110.
¶9 The third factor—the extent of the regulations’ application—likely weighs
in favor of review. OPM argues that 5 C.F.R. § 831.1207(c) and (d) have limited
6
applicability because those provisions only apply to Federal employees who are
covered under the Civil Service Retirement System. RF, Tab 4 at 11-12. OPM
states that “the population of employees potentially affected by these regulations
is extremely small.” Id. at 12. The petitioner, however, appears to argue that
section 831.1207(c) and (d), or at least the policies underlying those provisions,
were applied to her even though she is covered under FERS. See RF, Tab 1 at 2.
Without reaching the merits of her arguments, w e find that the petitioner’s
allegations are broad enough to encompass the interests of applicants seeking
disability retirement benefits under FERS.
¶10 Finally, we consider the strength or weakness of the petitioner’s arguments
as they relate to the validity of 5 C.F.R. § 831.1207(c) and (d). Taken as a whole,
we agree with OPM that the petitioner is essentially arguing for a preferred
approach to eligibility for disability retirement rather than arguing that the
existing approach compels the commission of a PPP. For example, the petitioner
suggests that “there should be a finite amount of time allowed to evaluate the
efficacy of a reassignment before a disability retirement application is
withdrawn.” RF, Tab 1 at 3. She further proposes that if a reassignment is
“deemed ineffective, unsuccessful, or poses a direct threat to the em ployee[’s]
personal health,” the employee “should be given the option to either seek another
reassignment or pursue disability retirement from the original position, not the
failed reassignment position.” Id. (emphasis in original). However, Congress did
not authorize the Board to rewrite OPM regulations. Rather, the sole purpose of
the Board’s regulation review authority is to determine whether the cited
regulation would “require any employee” to commit a PPP as defined by 5 U.S.C.
§ 2302. See 5 U.S.C. § 1204(f)(2). The petitioner’s argument that there is a
better approach than the one laid out in the regulation is not a strong argument for
invalidating the regulation.
¶11 Taken as a whole, the McDiarmid factors weigh against review. The
likelihood that the issue will be timely reached through ordinary channels of
7
appeal, the availability of other equivalent remedies, and the weakness of the
petitioner’s arguments persuade us not to exercise our discretion to review her
challenge to the validity of 5 C.F.R. § 831.1207(c) and (d). McDiarmid,
19 M.S.P.R. at 349.
ORDER
¶12 Accordingly, the petitioner’s request for regulation review is DENIED.
This is the final decision of the Merit Systems Protection Board in this
proceeding. Title 5 of the Code of Federal Regulations, section 120 3.12(b)
(5 C.F.R. § 1203.12(b)).
NOTICE OF APPEAL RIGHTS
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 case s 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 .
8
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,
9
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
10
(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 chal lenge 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
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.
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 jurisd iction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510.
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 war rants 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: /s/ for
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.