Eileen L. Manning v. Merit Systems Protection Board

N OTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
EILEEN L. MANNING,
Petitioner
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent
______________________
2023-1963
______________________
Petition for review of the Merit Systems Protection
Board in No. PH-0831-17-0200-I-1.
______________________
Decided: January 9, 2024
______________________
EILEEN MANNING, Baltimore, MD, pro se.
CALVIN M. M ORROW , Office of General Counsel, United
States Merit Systems Protection Board, Washington, DC,
for respondent. Also represented by ALLISON J ANE B OYLE,
K ATHERINE M ICHELLE SMITH .
______________________
Before L OURIE, CHEN, and CUNNINGHAM , Circuit Judges.
P ER CURIAM .
Case: 23-1963 Document: 27 Page: 1 Filed: 01/09/2024

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MANNING v. MSPB 2
Eileen L. Manning, a former employee of the Social Se-
curity Administration (“the SSA”), appeals from a Merit
Systems Protection Board (“the Board”) decision finding
that it lacked jurisdiction to consider her claim. Manning
v. Off. of Pers. Mgmt., Dkt. No. PH-0831-17-0200-I-1
(M.S.P.B. Mar. 22. 2023), S.A.1 1–6 (“Decision”). For the
reasons below, we affirm.
BACKGROUND
Manning worked for the SSA for nearly 40 years. De-
cision at 2, S.A. 2. On October 5, 1993, Manning applied
for an optional retirement annuity from her GS-05 position
under the Civil Service Retirement System (“CSRS”). Id.
The Office of Personnel Management (“OPM”) granted her
application, effective December 31, 1993, and commenced
her annuity payments, effective January 1, 1994. Id.
On December 14, 2015, Manning sent a letter to OPM,
asserting that she had been eligible to retire under the
1979 voluntary early retirement authority (“VERA”) pro-
gram and requesting a declaration to that effect because
she believed it would “assist her in receiving Social Secu-
rity Benefits.” Id. The 1979 VERA program offered volun-
tary early retirement to SSA employees at GS-12 level and
above within certain geographic locations, who were at
least 50 years of age with 20 years of experience or any age
with 25 years of experience, among other criteria. Id. Man-
ning had not applied for the 1979 VERA program when she
applied for optional retirement in 1993. Id.
In a January 15, 2016 initial decision, OPM deter-
mined that Manning was ineligible for the 1979 VERA be-
cause she did not meet the grade level requirement of GS-
12. Id.; S.A. 29–30. On February 9, 2017, OPM issued a
1 “S.A.” refers to the Supplemental Appendix filed
concurrently with the government’s informal response
brief.
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MANNING v. MSPB 3
reconsideration decision, affirming its initial decision. De-
cision at 2, S.A. 2; S.A. 26–28. Manning appealed to the
Board, arguing that she was eligible for the 1979 VERA be-
cause (1) the statutory requirements for voluntary early re-
tirement did not include a minimum grade level, (2) OPM
had exceeded its legal authority by limiting VERA eligibil-
ity based on grade level, and (3) she met all the VERA re-
quirements aside from grade level. Decision at 3, S.A. 3.
She further asserted that OPM’s error in determining she
was not eligible for VERA had prevented her from obtain-
ing SSA benefits to which she was entitled. Id.
The administrative judge (“AJ”) issued an initial deci-
sion, reversing OPM’s reconsideration decision. Id.; S.A.
7–15. The AJ found that OPM lacked the authority to limit
VERA eligibility based on grade level, and therefore its de-
termination that Manning was not eligible for the 1979
VERA on that basis was incorrect. Decision at 3, S.A. 3.
OPM petitioned for review, arguing for the first time that
both OPM and the Board lacked jurisdiction over Man-
ning’s claims, and that the AJ’s initial decision should
therefore be vacated. Id. The Board agreed, finding that
Manning had not met her burden to prove that OPM’s Feb-
ruary 9, 2017 decision “implicate[d] her rights or interests
under CSRS.” Id. at 5, S.A. 5. It noted that Manning
“seeks to have OPM issue an opinion as to her VERA eligi-
bility to influence SSA’s determination regarding her So-
cial Security benefits” but that she was not “seeking an
annuity based on her eligibility for voluntary early optional
retirement.” Id. It concluded that OPM’s February 9, 2017
letter, therefore, did “not qualify as an appealable recon-
sideration decision.” Id. The Board then vacated the AJ’s
initial decision and dismissed the appeal for lack of juris-
diction. Id. at 6, S.A. 6.
Manning timely appealed the decision, and we have ju-
risdiction under 5 U.S.C. § 7703(b)(1)(A).
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MANNING v. MSPB 4
D ISCUSSION
The Board’s determination that it lacked jurisdiction
over Manning’s claim is a question of law that we review
de novo. Forest v. Merit Sys. Prot. Bd., 47 F.3d 409, 410
(Fed. Cir. 1995). The Board’s jurisdiction over CSRS re-
tirement cases is governed by 5 U.S.C. § 8347(d)(1). That
statute limits the Board’s jurisdiction over CSRS cases to
those involving “an administrative action or order affecting
the rights or interests of an individual.” § 8347(d)(1). The
burden is on the claimant to establish jurisdiction by a pre-
ponderance of the evidence. Garcia v. Dep’t of Homeland
Sec., 437 F.3d 1322, 1325, 1344 (Fed. Cir. 2006) (en banc);
Lourens v. Merit Sys. Prot. Bd., 193 F.3d 1369, 1370 (Fed.
Cir. 1999); 5 C.F.R. § 1201.56(b)(2)(i)(A).
Manning contends that her alleged entitlement to the
1979 VERA is a right or interest under the CSRS, regard-
less whether or not she actually applied for VERA. We dis-
agree. It is undisputed that Manning did not apply for
VERA nor is she is currently seeking to alter her annuity
in any way. Decision at 2; S.A. 2. Rather, she only asks for
OPM to issue an opinion on her VERA eligibility, which she
could then use to potentially influence the SSA to obtain
favorable Social Security benefits for which she has not yet
applied. A decision by the Board about what Manning may
or may not be entitled to, without an actual claim for re-
tirement benefits, would amount to an improper advisory
opinion. 5 U.S.C. § 1204(h) (“The Board shall not issue ad-
visory opinions.”). Even given the liberality with which we
construe pro se filings, Erickson v. Pardus, 551 U.S. 89, 94
(2007), Manning has not proven by a preponderance of the
evidence that OPM’s February 9, 2017 reconsideration de-
cision is a final decision that affects her “rights or inter-
ests.” § 8347(d)(1); 5 C.F.R. § 831.110. For that reason, the
Board was correct in determining that it did not have ju-
risdiction to consider Manning’s claim.
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MANNING v. MSPB 5
CONCLUSION
We have considered Manning’s remaining arguments
and find them unpersuasive. For the foregoing reasons, we
affirm.
AFFIRMED
COSTS
No costs.
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