Fleming v. MSPB ( 2022 )


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  • Case: 21-2080    Document: 21    Page: 1   Filed: 02/15/2022
    NOTE: This disposition is nonprecedential.
    United States Court of Appeals
    for the Federal Circuit
    ______________________
    KISHMA L. FLEMING,
    Petitioner
    v.
    MERIT SYSTEMS PROTECTION BOARD,
    Respondent
    ______________________
    2021-2080
    ______________________
    Petition for review of the Merit Systems Protection
    Board in No. AT-844E-21-0223-I-1.
    ______________________
    Decided: February 15, 2022
    ______________________
    KISHMA L. FLEMING, Augusta, GA, pro se.
    ELIZABETH WARD FLETCHER, Office of General Counsel,
    United States Merit Systems Protection Board, Washing-
    ton, DC, for respondent. Also represented by TRISTAN L.
    LEAVITT, KATHERINE MICHELLE SMITH.
    ______________________
    Before HUGHES, MAYER, and STOLL, Circuit Judges.
    PER CURIAM.
    Case: 21-2080     Document: 21     Page: 2    Filed: 02/15/2022
    2                                            FLEMING   v. MSPB
    After the Office of Personnel Management rescinded its
    final decision in Kishma Fleming’s case, the Merit Systems
    Protection Board determined that it lacked jurisdiction and
    dismissed Ms. Fleming’s appeal. Ms. Fleming appeals the
    Board’s dismissal. We affirm because without a final deci-
    sion to review, the Board lacks jurisdiction to continue with
    an appeal. Ms. Fleming may appeal to the Board again
    when the Office of Personnel Management issues a new fi-
    nal decision.
    BACKGROUND
    Ms. Fleming applied for disability retirement twice.
    This appeal arises from her second application.
    Ms. Fleming first applied for disability retirement in
    2016. Appx15. 1 The Office of Personnel Management
    (OPM) issued a final decision denying her application.
    Appx14. Ms. Fleming appealed to the Merit Systems Pro-
    tection Board. In that appeal, number AT-844E-19-0309-I-
    1, an administrative judge upheld OPM’s denial. Appx2
    n.1. Ms. Fleming filed a petition for review by the full
    Board, which the full Board has not yet decided. Appx2 n.1;
    see Appx4 (explaining that the full Board is currently una-
    ble to issue decisions on petitions for review because it does
    not have enough members at this time).
    In 2020, Ms. Fleming filed a second application for dis-
    ability retirement. Appx23. On January 26, 2021, OPM is-
    sued a final decision denying Ms. Fleming’s second
    application, concluding:
    [T]he documentation submitted failed to establish
    a medical condition which exists continuously at a
    disabling severity. . . . [Y]our performance ap-
    praisal indicates a rating of “outstanding” and
    1  Appx refers to the appendix submitted with Re-
    spondent’s brief.
    Case: 21-2080        Document: 21   Page: 3   Filed: 02/15/2022
    FLEMING   v. MSPB                                           3
    stated you are fully successful or better regarding
    all critical elements of your position. There were no
    long-term restrictions or limitations imposed by
    your treating physicians which indicate you will be
    unable to attend the workplace or complete the du-
    ties of your job. [OPM] has concluded that as you
    do not meet all the criteria necessary, you are not
    entitled to disability retirement at this time.
    Appx25. Ms. Fleming appealed to the Board on February
    10, 2021. Appx1 (appeal number AT-844E-21-0223-I-1).
    On June 8, 2021, OPM told the Board that it had re-
    scinded its decision on Ms. Fleming’s second application.
    As OPM explained, the filing of a second application for
    disability retirement may cause the first application to be-
    come moot. Appx30. OPM explained that it needs to deter-
    mine whether Ms. Fleming’s first application is moot in
    order to decide how to treat her second application.
    Appx30–31. If Ms. Fleming’s first application is not moot,
    OPM will treat her second application as an amended ver-
    sion of the first application, instead of as an entirely sepa-
    rate application. Appx30–31. OPM stated that once it
    makes a mootness determination, it will issue a new final
    decision on Ms. Fleming’s second application, which will
    give Ms. Fleming a new right to appeal. Appx2, 31. Having
    rescinded its final decision on Ms. Fleming’s second appli-
    cation, OPM filed a motion with the Board to dismiss
    Ms. Fleming’s appeal number AT-844E-21-0223-I-1, on her
    second application, for lack of jurisdiction. Appx30.
    On June 9, 2021, an administrative judge granted
    OPM’s motion. The administrative judge concluded that
    the Board lacked jurisdiction over the matter because OPM
    had rescinded its final decision. Appx2. The administrative
    judge therefore dismissed Ms. Fleming’s appeal on her sec-
    ond application.
    On June 11, 2021, Ms. Fleming appealed the adminis-
    trative judge’s initial decision to this Court. The
    Case: 21-2080      Document: 21      Page: 4     Filed: 02/15/2022
    4                                              FLEMING   v. MSPB
    administrative judge’s initial decision became the Board’s
    final decision on July 14, 2021. Appx3. Thus, although
    Ms. Fleming’s appeal to the Federal Circuit was prema-
    ture, we can hear it because it has since ripened. We have
    jurisdiction pursuant to 
    5 U.S.C. § 7703
    (b)(1)(A) and 
    28 U.S.C. § 1295
    (a)(9), and our jurisdiction includes “inherent
    power to determine our own jurisdiction and that of the
    [B]oard.” Maddox v. MSPB, 
    759 F.2d 9
    , 10 (Fed. Cir. 1985).
    In sum, Ms. Fleming filed two appeals with the Board.
    OPM rescinded its final decision in the second one and
    stated that it would issue a new decision. The Board dis-
    missed the second appeal, and we now consider whether
    the Board was correct to dismiss that appeal.
    DISCUSSION
    The Board’s determination that it lacks jurisdiction is
    a legal conclusion that we review de novo. Bryant v. MSPB,
    
    878 F.3d 1320
    , 1325 (Fed. Cir. 2017).
    The Board has jurisdiction over “an administrative ac-
    tion or order affecting the rights or interests of an individ-
    ual . . . under the [Federal Employees’ Retirement System
    as] administered by [OPM].” 
    5 U.S.C. § 8461
    (e)(1); see also
    Miller v. OPM, 
    449 F.3d 1374
    , 1377 (Fed. Cir. 2006). Spe-
    cifically, the Board has jurisdiction over final decisions of
    OPM under FERS. See 
    5 C.F.R. § 841.308
     (“[A]n individual
    whose rights or interests under FERS are affected by a fi-
    nal decision of OPM may request MSPB to review the deci-
    sion . . . .”). OPM’s rescission of a final decision deprives the
    Board of jurisdiction over an appeal. Snyder v. OPM, 
    136 F.3d 1474
    , 1476 (Fed. Cir. 1998). In this case, OPM re-
    scinded its final decision on Ms. Fleming’s second petition,
    causing the Board to lose jurisdiction over her appeal.
    The Board has recognized a limited exception: it re-
    tains jurisdiction where “dismissal of the appeal could ef-
    fectively prevent an appellant from obtaining an
    adjudication of his claim,” such as where it appears that
    Case: 21-2080        Document: 21    Page: 5   Filed: 02/15/2022
    FLEMING   v. MSPB                                           5
    OPM has no intention of issuing a reconsideration decision.
    McLaughlin v. OPM, 
    62 M.S.P.R. 536
    , 546–47 (1994). Here,
    the exception does not apply because OPM has adjudicated
    Ms. Fleming’s successive disability retirement applications
    and has stated that it intends to do so again. See Appx30–
    31.
    OPM has stated that it intends to issue a new final de-
    cision. As the Board noted, if Ms. Fleming is dissatisfied
    with any new final decision OPM may issue regarding her
    disability retirement, she may appeal OPM’s final decision
    to the Board. See 
    5 U.S.C. § 8461
    (e)(1); 
    5 C.F.R. § 841.308
    .
    Ms. Fleming’s briefs argue that the Board failed to con-
    sider certain medical documentation and other facts in her
    case. Ms. Fleming can argue these issues before the Board
    after OPM issues its new decision. The Board was correct
    to dismiss the appeal because OPM had rescinded its orig-
    inal decision and indicated it would issue a new one.
    ***
    The Board’s dismissal of Ms. Fleming’s appeal number
    AT-844E-21-0223-I-1 for lack of jurisdiction is
    AFFIRMED
    COSTS
    Each party shall bear its own costs.