Opinion

Theresa Oertel v. Office of Personnel Management

Court: Merit Systems Protection Board
Filed: Feb 8, 2024
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 15.0%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

THERESA ELLIOTT OERTEL, DOCKET NUMBER

Appellant, DC-844E-19-0460-I-1

OFFICE OF PERSONNEL DATE: February 8, 2024

MANAGEMENT,

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Theresa Elliott Oertel , Durham, North Carolina, pro se.

Linnette Scott , Washington, D.C., for the agency.

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, 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 that

denied her application for disability retirement under the Federal Employees’

Retirement System. Generally, we grant petitions such as this one only in the

following circumstances: the initial decision contains erroneous findings of

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

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 asserts generally that the record

evidence, including the statements from her treatment providers and former

supervisor, establishes that her disability prevented her from continuing Federal

service. Petition for Review (PFR) File, Tab 1 at 4. The administrative judge

properly considered both the objective medical opinions and the appellant’s

subjective accounts of her mental limitations in finding that she failed to establish

that her mental health conditions caused her documented performance

deficiencies or rendered her unable to provide useful and efficient service. Initial

Appeal File (IAF), Tab 20, Initial Decision (ID) at 6-7, 10-15; see Henderson v.

Office of Personnel Management, 117 M.S.P.R. 313, ¶¶ 19-20 (2012). Having

considered the appellant’s arguments and reviewed the record evidence, we agree

with the administrative judge that the appellant failed to show that her

performance issues were caused by her medical conditions or that these

conditions rendered her unable to provide useful and efficient service. ID

at 10-15; PFR File, Tab 1 at 4; see Henderson v. Office of Personnel

Management, 109 M.S.P.R. 529, ¶ 8 (2008) (setting forth the criteria that an

applicant must meet in order to qualify for disability retirement benefits);

5 C.F.R. § 844.103(a)(2).

The appellant maintains that her mental health condition prevented her

from adequately representing herself in the present appeal. PFR File, Tab 1 at 4.

She also resubmits her correspondence to the administrative judge stating that she

had failed to attend the post-hearing status conference due to the alleged

exacerbation of her mental health symptoms. 2 Id. at 5; IAF, Tab 19 at 4.

Although she asserts that her mental health condition prevented her from proving,

“as an attorney would,” that she “stopped work only because [she was] disabled,”

the record is devoid of any evidence suggesting that she has been unable to

prosecute her appeal pro se. PFR File, Tab 1 at 4; see French v. Office of

Personnel Management, 37 M.S.P.R. 496, 497, 499 (1988) (setting forth the

relevant criteria for applying the procedures by which the Board seeks to arrange

pro bono representation for incompetent appellants in cases concerning

entitlement to 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

To the extent that the appellant argues on review that the administrative judge erred in

not rescheduling the conference, she has not shown that any such error prejudiced her

substantive rights. PFR File, Tab 1 at 5; see Karapinka v. Department of Energy,

6 M.S.P.R. 124, 127 (1981) (explaining that an administrative judge’s procedural error

is of no legal consequence unless it is shown to have adversely affected a party’s

substantive rights). Specifically, the administrative judge convened the status

conference in order for the agency to provide the appellant with information explaining

the comparative monthly annuities to which she would be entitled under disability

retirement or early retirement. IAF, Tab 18 at 1-2. Prior to the scheduled post-hearing

conference, the agency complied with these instructions and submitted into the record

comparative financial data regarding the appellant’s retirement. IAF, Tab 15 at 4,

Tab 16 at 4.

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.

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:

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

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

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