Opinion

Julian Lewallen v. Office of Personnel Management

Court: Merit Systems Protection Board
Filed: Mar 21, 2024
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 15.6%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

JULIAN LEE LEWALLEN, DOCKET NUMBER

Appellant, DA-0842-18-0399-I-1

OFFICE OF PERSONNEL DATE: March 21, 2024

MANAGEMENT,

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Julian Lee Lewallen , Fort Worth, Texas, pro se.

Carla Robinson , Washington, D.C., for the agency.

BEFORE

Cathy A. Harris, Chairman

Raymond A. Limon, Vice Chairman

FINAL ORDER

The appellant has filed a petition for review of the initial decision, which

dismissed his appeal for lack of jurisdiction due to rescission of the

reconsideration decision issued by the Office of Personnel Management (OPM).

Generally, we grant petitions such as this one only in the following

circumstances: the initial decision contains erroneous findings of material fact;

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

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).

DISCUSSION OF ARGUMENTS ON REVIEW

The appellant filed an appeal challenging OPM’s reconsideration decision

regarding his creditable service for purposes of a retirement annuity.

Initial Appeal File (IAF), Tab 1, Tab 5 at 10-11. Specifically, he disputed OPM’s

exclusion of his service in a temporary appointment from his total service

computation. IAF, Tab 5 at 10-11. While this appeal was pending before the

administrative judge, OPM indicated that it was rescinding its June 13, 2018

reconsideration decision and remanding the appellant’s case to the Post

Adjudication and/or Post-56 Military Service Credit Branch for further

development. IAF, Tab 10 at 4. On August 6, 2018, the administrative judge

issued an initial decision dismissing this appeal for lack of jurisdiction based on

OPM’s assertion that it was rescinding the reconsideration decision. IAF, Tab 12,

Initial Decision (ID) at 2. The appellant filed a petition for review on

September 10, 2018, alleging that OPM failed to timely notify him of his new

annuity benefits or issue a new reconsideration decision, as applicable.

Petition for Review (PFR) File, Tab 2 at 4. 2 OPM has responded to the petition,

and the appellant has replied. PFR File, Tabs 4 and 5.

The Board’s jurisdiction is limited to those matters over which it has been

given jurisdiction by law, rule, or regulation. Maddox v. Merit Systems

Protection Board, 759 F.2d 9, 10 (Fed. Cir. 1985). Generally, the Board has

jurisdiction over retirement issues only after OPM issues a final or

reconsideration decision. McNeese v. Office of Personnel Management,

61 M.S.P.R. 70, 73-74, aff’d per curiam, 40 F.3d 1250 (Fed. Cir. 1994) (Table).

The Board has held that, if OPM completely rescinds a reconsideration decision,

the rescission divests the Board of jurisdiction over the appeal in which the

reconsideration decision is at issue, and the appeal must be dismissed. Martin v.

Office of Personnel Management, 119 M.S.P.R. 188, ¶ 8 (2013). The Board may

assert jurisdiction over a retirement appeal in the absence of a reconsideration

decision if OPM has refused or improperly failed to issue a final decision.

McNeese, 61 M.S.P.R. at 74.

Here, OPM indicated that it would rescind the reconsideration decision,

send the appellant’s case to the appropriate department for further development,

and, if applicable, issue a new final decision with appeal rights. IAF, Tab 10 at 4.

The appellant filed his petition for review only a month after the initial decision

was issued. Compare PFR File, Tab 2, with ID. Thus, there is no excessive delay

by OPM that would indicate a refusal or failure to issue a final decision. Cf.

Easter v. Office of Personnel Management, 102 M.S.P.R. 568, ¶ 8 (2006) (finding

that an 18-month delay by OPM in addressing the appellant’s application

indicated a declination to adjudicate the application). This month -long delay is

Along with his petition for review, the appellant also submits documents that are part

of the record below. Compare PFR File, Tab 2 at 6-11, with IAF, Tab 1 at 4-9. The

documents submitted by the appellant do not constitute new and material evidence that

was not previously available despite due diligence and therefore the Board need not

consider them. 5 C.F.R. § 1201.115(d); see Meier v. Department of the Interior ,

3 M.S.P.R. 247, 256 (1980) (finding that evidence that is already a part of the record is

not new).

not the type of excessive delay that would lead the Board to conclude that OPM

has improperly failed or refused to issue a decision. See Okello v. Office of

Personnel Management, 120 M.S.P.R. 498, ¶ 15 (2014) (finding that OPM’s

failure to issue a final decision for 6 years constituted an appealable

administrative action because the appellant diligently sought a final decision

during that time period). However, as noted by the administrative judge, after

OPM does issue a new reconsideration decision, the appellant may file a new

appeal with the appropriate regional office if he disagrees with that decision. ID

at 2; see Rorick v. Office of Personnel Management, 109 M.S.P.R. 597, ¶ 7

(2008).

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 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.

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.

(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

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

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.