Barbara J. Blackmon v. Merit Systems Protection Board

N OTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
BARBARA J. BLACKMON,
Petitioner
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent
______________________
2025-1154
______________________
Petition for review of the Merit Systems Protection
Board in No. CH-0845-20-0028-I-3.
______________________
Decided: October 8, 2025
______________________
BARBARA J. BLACKMON, Chicago, IL, pro se.
K ELLY WINSHIP , Office of the 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 M OORE, Chief Judge, P ROST and T ARANTO, Circuit
Judges.
Case: 25-1154 Document: 31 Page: 1 Filed: 10/08/2025

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BLACKMON v. MSPB 2
P ER CURIAM .
Barbara Blackmon petitions for review of a Merit Sys-
tems Protection Board (Board) decision dismissing her ap-
peal for lack of jurisdiction. We affirm.
BACKGROUND
Ms. Blackmon is a retiree who receives a Federal Em-
ployees Retirement System (FERS) disability retirement
annuity. S. Appx. 42.1 Over the last decade, Ms. Blackmon
filed multiple appeals to the Board alleging the Office of
Personnel Management (OPM) miscalculated her annuity,
leading to underpayment. S. Appx. 2; Respondent’s Infor-
mal Br. 2 n.1 (collecting Ms. Blackmon’s Board appeals).
During that period, OPM issued and later rescinded sev-
eral overpayment determinations. S. Appx. 35; S. Appx 40;
S. Appx. 49–50. Only a single pending initial decision, is-
sued June 3, 2021, is relevant to this appeal. S. Appx.
49–50. OPM determined it had underpaid Ms. Blackmon
by $848.34 and stated it would compensate her accord-
ingly. S. Appx. 50. The decision separately notified Ms.
Blackmon that OPM would continue to reduce her annuity
for spousal survivor benefits because she failed to correct
an improperly completed form. Id. Ms. Blackmon re-
quested reconsideration of the decision one week later,
claiming she had been underpaid by more than $848.34.
S. Appx. 54–56.
Before receiving a ruling on her reconsideration re-
quest, Ms. Blackmon simultaneously appealed the initial
decision to the Board on July 1, 2021, approximately one
month after the initial decision issued. S. Appx. 25;
S. Appx 51–53. On September 11, 2024, the Board dis-
missed the appeal for lack of jurisdiction because OPM had
not issued a final decision. S. Appx. 1–3. Ms. Blackmon
1 “S. Appx.” refers to the supplemental appendix at-
tached to Respondent’s informal brief.
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BLACKMON v. MSPB 3
appeals. We have jurisdiction under 5 U.S.C.
§ 7703(b)(1)(A) and 28 U.S.C. § 1295(a)(9).
D ISCUSSION
The scope of our review on appeal is limited. We must
affirm the Board unless its decision is “(1) arbitrary, capri-
cious, an abuse of discretion, or otherwise not in accordance
with law; (2) obtained without procedures required by law,
rule, or regulation having been followed; or (3) unsup-
ported by substantial evidence.” 5 U.S.C. § 7703(c).
Whether the Board has jurisdiction is a question of law we
review de novo. Bryant v. Merit Sys. Prot. Bd., 878 F.3d
1320, 1325 (Fed. Cir. 2017). We review fact findings un-
derlying the Board’s jurisdictional analysis for substantial
evidence. Id.
On appeal, Ms. Blackmon argues that the Board erred
by failing to increase her annuity and that OPM ignored
her request for reconsideration, which she filed over three
years ago. Petitioner’s Br. 1–4. Neither argument shows
error. Ms. Blackmon’s compensation argument, which
speaks to her claim’s merits, is irrelevant to the only issue
before this courtwhether the Board erred when it con-
cluded it lacked jurisdiction. Ms. Blackmon has not estab-
lished error in the Board’s conclusion that it cannot
exercise jurisdiction without a final decision, even if one is
unavailable partly because of OPM’s delay.
An OPM decision must be “final” for the Board to exer-
cise jurisdiction on appeal. 5 C.F.R. § 831.110. A decision
is final when OPM either (1) issues a final decision after a
reconsideration request, or (2) expressly designates a deci-
sion as final, meaning no reconsideration rights attach.
See 5 C.F.R. §§ 841.306–307. The Board recognizes a nar-
row exception to this rule when OPM refuses or improperly
fails to issue a final decision after a reconsideration re-
quest. See Okello v. Off. of Pers. Mgmt., No. SF-0845-12-
0702-I-1, 2014 WL 172054, at *502 (M.S.P.B. Jan. 16,
2014). Here, it is undisputed that OPM has not issued a
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BLACKMON v. MSPB 4
final decision, and Ms. Blackmon never argued the factors
sufficient to conclude that the Okello exception applies.
Thus, the Board correctly concluded it lacked jurisdiction.
Nebblett v. Off. Of Pers. Mgmt., 237 F.3d 1353, 1356 (Fed.
Cir. 2001) (“OPM rescinded its 1995 final decision, thus de-
priving the Board of jurisdiction to hear [the petitioner’s]
appeal”).
We recognize Ms. Blackmon’s concern over her proce-
dural standstill. We note, however, that so long as OPM
has not issued a final decision, Ms. Blackmon is free to re-
quest a written explanation from OPM for any continued
delay and to file another appeal to the Board arguing the
Okello exception applies. 5 C.F.R. § 831.110; Respondent’s
Br. 8–9. Should Ms. Blackmon file such an appeal, the
Board may properly consider in the first instance whether
OPM’s actions amount to a constructive refusal under
Okello, thereby granting the Board jurisdiction.
CONCLUSION
We have considered Ms. Blackmon’s remaining argu-
ments and find them unpersuasive. Accordingly, we af-
firm.
AFFIRMED
COSTS
No costs.
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