Lamarr Price v. Merit Systems Protection Board

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
LAMARR PRICE,
Petitioner
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent
______________________
2024-1495
______________________
Petition for review of the Merit Systems Protection
Board in No. DA-844E-23-0376-I-1.
______________________
Decided: November 6, 2024
______________________
LAMARR A. PRICE, Rosharon, TX, pro se.
KELLY WINSHIP, Office of the General Counsel, United
States Merit Systems Protection Board, Washington, DC,
for respondent. Also represented by ALLISON J. BOYLE,
KATHERINE M. SMITH.
______________________
Before DYK, TARANTO, and STOLL, Circuit Judges.
PER CURIAM.
Case: 24-1495 Document: 29 Page: 1 Filed: 11/06/2024

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PRICE v. MSPB 2
Lamarr Price, upon retiring from service as a federal
government employee, began receiving a retirement
annuity based on disability. The Office of Personnel
Management (OPM) calculated the amount of the annuity,
but Mr. Price disputed OPM’s calculations in several
communications with OPM. Eventually, he appealed to
the Merit Systems Protection Board. The Board
dismissed the appeal for lack of jurisdiction for want of a
final OPM decision on Mr. Price’s claim that the annuity
should be higher. We now affirm.
I
Mr. Price began receiving a disability retirement
annuity from the federal government on May 11, 2022.
On May 27, 2023, he received a letter from OPM
informing him of adjustments to his annuity beginning
June 1, 2023. In early July 2023, he emailed OPM
several times, alleging that it had erred in both its
original calculation (for May 2022 to May 2023) and its
new calculation (for June 2023 forward). He asked OPM
to expedite its ruling on the claims of error, citing
financial hardship incurred by him and his family.
OPM had not replied to his July emails when, on July
19, 2023, Mr. Price filed an appeal with the Merit Systems
Protection Board, alleging that OPM erred in computing
his annuity. On July 20, 2023, the assigned Board
administrative judge issued an Acknowledgment Order,
informing Mr. Price that the Board’s jurisdiction would
not vest until OPM had issued a final decision and that
his appeal would be dismissed if he did not show that
OPM had issued a final decision. SAppx22–23. Mr. Price
responded with a few documents, none of them stating an
OPM decision on his July 2023 claim of a miscalculation.
SAppx43–46.
On October 25, 2023, OPM moved to dismiss the
appeal because it had not issued a final decision. In
response, Mr. Price pointed to his July 2023 emails
Case: 24-1495 Document: 29 Page: 2 Filed: 11/06/2024

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PRICE v. MSPB 3
asserting a miscalculation. On December 12, 2023, the
administrative judge issued an Order to Show Cause as to
why the case should not be dismissed in light of Mr.
Price’s failure to show that OPM had issued a final
decision. Mr. Price again responded that he had emailed
OPM in July 2023 and did not receive a response.
On January 9, 2024, the administrative judge
dismissed the appeal for lack of jurisdiction. The decision
became final on February 13, 2024. Mr. Price timely
petitioned us for review. ECF No. 4. We have jurisdiction
under 5 U.S.C. § 7703(b)(1)(A) and 28 U.S.C. § 1295(a)(9).
II
We decide de novo whether the Board had
jurisdiction. Forest v. Merit Systems Protection Board, 47
F.3d 409, 410 (Fed. Cir. 1995). We see no error in the
Board’s determination of its lack of jurisdiction in this
case.
The Board has jurisdiction over administrative
actions and orders affecting the rights or interests of an
individual or of the United States under the laws and
regulations governing the Federal Employees Retirement
System—a system administered by OPM in the respects
at issue here. 5 U.S.C. § 8461(e)(1). As relevant here, the
Board does not have jurisdiction over a retirement-related
matter unless OPM has issued a final decision on the
matter—either by issuing a reconsideration decision
where reconsideration is available or by issuing an initial
decision where reconsideration is not available. See 5
C.F.R. §§ 841.306, 841.307.
Here, there is no final decision. Mr. Price cannot
succeed by pointing to OPM’s decision on May 11, 2022,
approving his application for a retirement disability
annuity. Even if that decision were what he challenges
and were not subject to reconsideration, he does not
indicate how his appeal in July 2023 would be timely. See
Case: 24-1495 Document: 29 Page: 3 Filed: 11/06/2024

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PRICE v. MSPB 4
5 U.S.C. § 7701(e) (establishing 30-day period for appeal);
5 C.F.R. § 1201.22(b)(1) (same). To the extent that his
early-July 2023 communications with OPM alleging a
miscalculation are viewed as seeking a legally available
reconsideration of the May 2022 decision, there is no
finality because OPM has not made a decision on
reconsideration. To the extent that his early-July 2023
communications are viewed as asserting a new claim,
there has been no initial decision on that claim. Mr. Price
cites Stekelman v. United States, 752 F. App’x 1008 (Fed.
Cir. 2018), but that decision offers him no support, as it
involved a timely appeal to the Board after OPM
reconsideration, id. at 1009.
Mr. Price argues that the Board should have exercised
jurisdiction under a narrow exception to the finality
requirement recognized by the Board for certain
situations in which OPM has “effectively abdicated its
role of adjudicating th[e] claim” by improperly failing to
act on it. See Okello v. Office of Personnel Management,
120 M.S.P.R. 498, 502–04 (2014) (failure to act for years);
see Easter v. Office of Personnel Management, 102
M.S.P.R. 568, 571 (2006) (failure to act for over eighteen
months with no explanation given); see also Sanders v.
Merit Systems Protection Board, No. 2023-2058, 2024 WL
2239018, at *1 (Fed. Cir. May 17, 2024) (“A narrow
exception to the final decision requirement ‘exists where
OPM has constructively denied an individual the
opportunity to receive a final decision.’”) (citing Malone v.
Merit Systems Protection Board, 590 F. App’x 1002, 1003
(Fed. Cir. 2015)). The exception does not apply here.
There is no basis for any suggestion that OPM failed to
take action to resolve this matter within a reasonable
time. Mr. Price appealed to the Board in July 2023, the
same month that he first emailed OPM regarding this
matter, and OPM has stated that once Mr. Price’s Board
appeal is dismissed, it will proceed to an initial decision
on the July 2023 assertions with rights to reconsideration.
Case: 24-1495 Document: 29 Page: 4 Filed: 11/06/2024

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PRICE v. MSPB 5
III
We therefore affirm the Board’s dismissal of the
appeal presented to it.
The parties shall bear their own costs.
AFFIRMED
Case: 24-1495 Document: 29 Page: 5 Filed: 11/06/2024

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