finding that the appeal of an adverse VERA ruling is within the jurisdiction of the Board
How later courts described this case
- finding that the appeal of an adverse VERA ruling is within the jurisdiction of the Board
Written by the judges who cited it.
The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
CHRISTINE A. RYBA, DOCKET NUMBER
Appellant, PH-3443-18-0377-I-1
v.
DEPARTMENT OF THE ARMY, DATE: November 16, 2023
Agency.
THIS ORDER IS NONPRECEDENTIAL 1
Christine A. Ryba , Moorestown, New Jersey, pro se.
Jessica N. Cone , Philadelphia, Pennsylvania, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
REMAND ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed for lack of jurisdiction her appeal challenging the agency’s denial of
her request for retirement under the Voluntary Early Retirement Authority
(VERA). For the reasons discussed below, we GRANT the appellant’s petition
for review, VACATE the finding of the initial decision that the Board lacks
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
jurisdiction over this appeal, and REMAND the case to the Northeastern Regional
Office for further adjudication in accordance with this Remand Order.
BACKGROUND
¶2 The appellant was employed by the U.S. Army Corps of Engineers as a
GS-13 Project Manager in Philadelphia, Pennsylvania. Initial Appeal File (IAF),
Tab 1 at 1. In a memorandum dated April 12, 2018, the Deputy District
Commander, Philadelphia District, inquired amongst employees within the district
as to their interest and availability for VERA and/or Voluntary Separation
Incentive Pay (VSIP). Id. at 7-9. The Deputy District Commander stated that
participation in the VERA/VSIP program was not an employee entitlement and an
expression of interest in the program did not guarantee acceptance. Id. at 8. He
further stated that he would determine the positions applicable to the allocations
and the agency’s final determination would be “based on mission and
organizational needs.” Id. The appellant asserted that she submitted a VERA
application. PFR File, Tab 1 at 5. On or around May 3, 2018, she claims that an
individual identified as a senior civilian informed her that her VERA application
had been denied based on purported “workload concerns.” IAF, Tab 1 at 5.
¶3 The appellant appealed the agency’s decision to the Board and did not
request a hearing. Id. at 2, 5. The administrative judge advised the appellant that
the Board may not have jurisdiction over the appeal and of certain limited
exceptions to the general rule that the Board may not address matters over which
it otherwise lacks jurisdiction. IAF, Tab 2 at 2-3. The administrative judge
ordered the appellant to file evidence and argument showing that her appeal is
within the Board’s jurisdiction, id., to which the appellant did not respond. The
agency moved to dismiss the appeal for lack of jurisdiction. IAF, Tab 4 at 4.
Based on the written record, the administrative judge dismissed the appeal,
finding that the Board lacked jurisdiction to hear appeals from voluntary agency
programs, such as the VERA, and the appellant had identified no section under
3
the Civil Service Retirement System (CSRS) or Federal Employees Retirement
System (FERS) that entitles her to participate in the VERA program. IAF, Tab 5,
Initial Decision (ID) at 3.
¶4 The appellant has filed a petition for review. PFR File, Tab 1. The agency
has filed a response. PFR File, Tab 3.
DISCUSSION OF ARGUMENTS ON REVIEW
¶5 The appellant argues that a voluntary early retirement denial may be
appealable to the Board as an administrative action or order affecting her rights or
interests under the CSRS or FERS. 2 Petition for Review (PFR) File, Tab 1 at 2;
see 5 U.S.C. §§ 8347(d)(1), 8461(e)(1). We agree. See Adams v. Department of
Defense, 688 F.3d 1330, 1335–36 (Fed. Cir. 2012) (finding that the appeal of an
adverse VERA ruling is within the jurisdiction of the Board); Dawson v.
Department of Agriculture, 121 M.S.P.R. 495, ¶ 16 (2014) (same).
¶6 Ordinarily, such an appeal is from a decision from the Office of Personnel
Management (OPM) or an agency that received delegated authority from OPM. 3
Dawson, 121 M.S.P.R. 495, ¶¶ 16-17. Here, however, it appears that the agency
could approve or deny early retirement applications pursuant to 5 U.S.C.
§ 9902(f), under which the Secretary of Defense has statutory authority to
establish a VERA to be administered according to regulations established by the
Secretary. See Department of Defense Instruction (DoDI) No. 1400.25,
Vol. 1702, Encl. 3, ¶ 4 (June 13, 2008), https://www.esd.whs.mil/Portals/54/
Documents/DD/issuances/140025/1400.25-V1702.pdf .
2
To the extent that the appellant intended to seek review of an Office of Personnel
Management (OPM) regulation, she may file a separate appeal in accordance with the
requirements set forth at 5 C.F.R. part 1203.
3
Generally, an agency must request a VERA from OPM and provide specific
information in support of its request. 5 C.F.R. §§ 831.114, 842.213. Once OPM
approves a VERA, an employee who falls within the scope of the VERA’s coverage and
who meets the age, service, and other requirements prescribed by statute and OPM
regulation is entitled to an immediate annuity. 5 U.S.C. §§ 8336(d), 8414(b); 5 C.F.R.
§§ 831.114(k), 842.213(k).
4
¶7 Under 5 U.S.C. § 9902(f)(4), “[a]n employee who is at least 50 years of age
and has completed 20 years of service, or has at least 25 years of service,
may . . . apply and be retired from the Department of Defense and receive
benefits in accordance with chapter 83 or 84 . . . . ” DoDI No. 1400.25 provides
that a Department of Defense installation using VERA has discretion in
“determin[ing] and publiciz[ing] the maximum number of locally authorized
VERA approvals and the anticipated multiple windows of opportunity required.”
¶8 The appellant asserts that there was no basis for the agency’s denial of her
request for retirement under the VERA, given her purported eligibility, her
supervisor’s support, and the nonexistent competition. PFR File, Tab 1 at 4-8.
She further asserts that the agency’s denial was not in accord with the procedural
requirements set forth in DoDI No. 1400.25. Id. at 3-5. Such a denial would
significantly affect her rights or interests under 5 U.S.C.
§§ 8347(d)(1), 8461(e)(1), and thus may be an appealable “administrative action”
within the Board’s jurisdiction. The record does not, however, include any
written application by the appellant or written denial by the agency.
¶9 Thus, the record is not sufficiently developed for the Board to determine
whether the appellant has established jurisdiction over this appeal. Moreover, the
appellant did not receive explicit information on what is required to establish an
appealable jurisdictional issue in this type of case. See Burgess v. Merit Systems
Protection Board, 758 F.2d 641, 643-44 (Fed. Cir. 1985).
¶10 On remand, the administrative judge shall notify the appellant of how to
establish Board jurisdiction over an appeal seeking retirement benefits under the
VERA and afford the parties an opportunity to submit evidence and argument on
the issue. See Adams, 688 F.3d at 1335; Dawson, 121 M.S.P.R. 495, ¶ 16.
Should the appellant establish that her appeal is within the Board’s jurisdiction,
the administrative judge shall adjudicate the merits of the appellant’s appeal, as
well as her harmful error and prohibited personnel practice claims. See PFR File,
Tab 1 at 5.
5
¶11 We note that the appellant failed to respond to the administrative judge’s
jurisdictional order in the proceedings below. PFR File, Tab 1 at 1. The
appellant attributes her failure to respond to the fact that she did not receive any
case-related filings, with the exception of the initial decision, which was mailed
to her home address on August 22, 2018. Id. She observes that, when she
contacted the Board’s regional office on August 23, 2018, an unidentified
employee informed her that all case-related filings had been sent to the email
address that she provided in her initial appeal. Id. at 1-2.
¶12 A review of the record shows that the appellant may not have been alerted
to case-related filings because it appears she misspelled her email address in her
initial appeal. IAF, Tab 1 at 1 (showing an email domain of “usace.amy.mil”
rather than “usace.army.mil”). Although the appellant may have been responsible
for this error, we nevertheless review the arguments she raises on review because
they implicate the Board’s jurisdiction, an issue that is always before the Board.
See Hamilton v. U.S. Postal Service, 123 M.S.P.R. 404, ¶ 19 n.12 (2016).
ORDER
¶13 For the reasons discussed above, we remand this case to the Northeastern
Regional Office for further adjudication in accordance with this Remand Order.
FOR THE BOARD: ______________________________
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.