NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
LAUNA GOLDDEEN OGBURN,
Petitioner
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent
______________________
2018-1716
______________________
Petition for review of the Merit Systems Protection
Board in No. DC-0841-18-0135-I-1.
______________________
Decided: October 2, 2018
______________________
LAUNA GOLDDEEN OGBURN, Woodbridge, VA, pro se.
CALVIN M. MORROW, Office of the General Counsel,
Merit Systems Protection Board, Washington, DC, for
respondent. Also represented by KATHERINE MICHELLE
SMITH.
______________________
Before LOURIE, O’MALLEY, and STOLL, Circuit Judges.
PER CURIAM.
2 OGBURN v. MSPB
Launa Golddeen Ogburn (“Ogburn”) appeals from the
decision of the U.S. Merit Systems Protection Board (the
“Board”), dismissing her appeal for lack of jurisdiction.
Ogburn v. Office of Pers. Mgmt., No. DC-0841-18-0135-I-1,
2017 WL 6497543 (M.S.P.B. Dec. 13, 2017) (“Decision”);
Resp’t’s App. (“R.A.”) 1–10. Because we agree with the
Board that it lacked jurisdiction over Ogburn’s appeal, we
affirm.
BACKGROUND
Ogburn was employed with the Office of the Director
of National Intelligence (“ODNI”) as the Executive Sup-
port Assistant until her retirement on or around October
7, 2012. In May 2012, the Office of Personnel Manage-
ment (“OPM”) issued a letter informing Ogburn of its
approval of her disability retirement application under
the Federal Employees Retirement System (“FERS”). In
August 2016, after Ogburn’s request for an explanation of
her benefits, OPM issued a letter explaining the computa-
tion of her FERS annuity and a breakdown of her retire-
ment benefit calculations. On June 20, 2017, OPM issued
an initial decision concerning, inter alia, her FERS disa-
bility retirement formula and computation, cost of living
allowance adjustments, and “profile” and case status.
R.A. 28–32. Upon Ogburn’s request for reconsideration,
OPM issued its final decision on October 31, 2017, affirm-
ing its June 20, 2017 initial decision.
On November 21, 2017, Ogburn appealed OPM’s final
decision to the Board. On December 12, 2017, OPM filed
a motion to dismiss, stating to the Board that “OPM has
decided to rescind its reconsideration final decision of
October 31, 2017” and that “OPM will take another look
at the issues raised by the appellant and appellant will
receive new due process accordingly.” R.A. 43.
On December 13, 2017, the Board’s administrative
judge (“AJ”) issued an initial decision granting OPM’s
motion and dismissing Ogburn’s appeal for lack of juris-
OGBURN v. MSPB 3
diction because OPM had rescinded its final decision. In a
footnote, the AJ noted that Ogburn appeared to be also
appealing from an involuntary retirement action and
negative suitability determination from her time as a CIA
employee. However, the AJ stated that “it appears that
the Board lacks jurisdiction to consider these claims
because the appellant was an employee at the [CIA]
during the relevant time periods.” R.A. 2 n.1 (citing Neely
v. Central Intelligence Agency, 2 M.S.P.R. 371 373 (1980)).
The AJ’s initial decision became the final decision of the
Board on January 17, 2018, as Ogburn did not appeal to
the full Board.
Ogburn appealed. We have jurisdiction pursuant to
28 U.S.C. § 1295(a)(9).
DISCUSSION
We only set aside the Board’s decision when it is
“(1) arbitrary, capricious, an abuse of discretion, or other-
wise not in accordance with law; (2) obtained without
procedures required by law, rule, or regulation having
been followed; or (3) unsupported by substantial evi-
dence.” 5 U.S.C. § 7703(c). Whether the Board has juris-
diction over an appeal is a question of law that we review
de novo, Forest v. Merit Sys. Prot. Bd.,
47 F.3d 409, 410
(Fed. Cir. 1995), and we review the Board’s underlying
factual findings for substantial evidence, Bolton v. Merit
Sys. Prot. Bd.,
154 F.3d 1313, 1317 (Fed. Cir. 1998).
Although a pro se party as an appellant to the Board may
be afforded leniency in formalities, Ogburn is not excused
from meeting her burden of establishing jurisdiction.
Prewitt v. Merit Sys. Prot. Bd.,
133 F.3d 885, 886 (Fed.
Cir. 1998); see Kelley v. Sec’y, U.S. Dep’t of Labor,
812
F.2d 1378, 1380 (Fed. Cir. 1987).
On appeal, Ogburn points to 5 U.S.C. § 7701(b)(2) as
her ground for relief and argues that the Board erred in
dismissing her appeal because it failed to consider that
“OPM rescinded its reconsideration final decision of
4 OGBURN v. MSPB
October 31, 2017” and that “Appellant will receive ‘new
due process.’” Pet’r’s Informal Br. (quoting R.A. 43).
The government responds that it is undisputed that
OPM rescinded its final decision and Ogburn failed to
allege any facts suggesting that OPM does not intend to
issue a new decision concerning her retirement benefits.
Accordingly, the government argues that the Board
correctly concluded that it lacked jurisdiction over Og-
burn’s retirement benefits claims because OPM’s rescis-
sion divested the Board of jurisdiction. The government
also contends that a narrow exception to this rule, such as
a showing that OPM does not intend to issue a new deci-
sion, does not exist, and thus the AJ properly dismissed
the appeal. The government further argues that the
Board correctly determined that it lacked jurisdiction over
Ogburn’s other claims because ODNI employees are
excluded from appeals to the Board, similar to CIA em-
ployees who are so excluded under 5 U.S.C. § 7511(b)(7).
Resp’t’s Br. 8 (citing 5 U.S.C. §§ 2302(a)(2)(C)(ii), 2306; 50
U.S.C. §§ 3024(m)(1), (2), 3023 et seq.).
In reply, Ogburn raises various claims and arguments
not previously raised in her opening informal brief, in-
cluding claims challenging an involuntary retirement
action and negative suitability determination.
We agree with the government that the Board correct-
ly dismissed the appeal for lack of jurisdiction. As an
initial matter, Ogburn’s reference to 5 U.S.C. § 7701(b)(2),
which governs appellate procedures at the Board, is
misplaced, as it is Ogburn’s burden to first establish the
Board’s jurisdiction. Moreover, it is undisputed that after
Ogburn appealed OPM’s final decision to the Board, OPM
rescinded its final decision. Contrary to Ogburn’s conten-
tion, the Board considered OPM’s rescission and correctly
concluded that rescission deprived the Board of jurisdic-
tion. As noted by the Board and the government, with
respect to Ogburn’s claim concerning computation of her
OGBURN v. MSPB 5
disability retirement annuity benefits, the Board only has
jurisdiction over OPM’s decisions that are final. 5 U.S.C.
§§ 8347(d), 8461(e); 5 C.F.R. §§ 831.110, 841.308. After
OPM rescinded its October 31, 2017 final decision, there
was no final OPM decision that would confer jurisdiction
on the Board. See Snyder v. Office of Pers. Mgmt.,
136
F.3d 1474, 1476 (Fed. Cir. 1998).
Furthermore, as the Board noted, nothing in the rec-
ord suggests that OPM does not intend to issue a new
reconsideration decision after its rescission, which may
allow the Board to retain jurisdiction according to its
precedent. R.A. 2 n.1; cf. Nebblett v. Office of Pers. Mgmt.,
152 F.3d 948 (Fed. Cir. 1998) (table) (requiring OPM to
issue a final reconsideration decision within thirty days
as it had promised to the appellant and acknowledging
that the appellant and OPM were involved in a “pro-
longed dialogue” and that there was an “extended delay”
of five years although “the record does not indicate that
OPM inexplicably and repeatedly refused to issue a
reconsideration decision”). Finally, we agree with the
government that Ogburn, as an ODNI employee, is ex-
cluded from the reach of 5 U.S.C. § 7511, and the Board
therefore lacked jurisdiction over Ogburn’s claims of
involuntary retirement action and negative suitability
determination. See Lal v. Merit Sys. Prot. Bd.,
821 F.3d
1376, 1380 (Fed. Cir. 2016); see also 5 U.S.C.
§§ 2302(a)(2)(C)(ii)(I), 2306; 50 U.S.C. §§ 3024(m)(1), (2).
We accordingly conclude that the Board lacked juris-
diction and properly dismissed Ogburn’s appeal. We have
considered Ogburn’s remaining arguments but find them
unpersuasive.
CONCLUSION
For the foregoing reasons, we affirm the Board’s dis-
missal of this case.
AFFIRMED
6 OGBURN v. MSPB
COSTS
No costs.
