Terry A. Cochran v. Merit Systems Protection Board

NOTE: This disposition is nonprecedential.

United States Court of Appeals
for the Federal Circuit
______________________

TERRY A. COCHRAN,
Petitioner

v.

MERIT SYSTEMS PROTECTION BOARD,
Respondent
______________________

2019-1986
______________________

Petition for review of the Merit Systems Protection
Board in No. PH-0841-19-0023-I-1.
______________________

Decided: March 11, 2020
______________________

T
ERRY A. COCHRAN, Odenton, MD, pro se.

SARA B. REARDEN, Office of General Counsel, United
States Merit Systems Protection Board, Washington, DC,
for respondent. Also represented by KATHERINE MICHELLE
SMITH, TRISTAN LEAVITT.
______________________

Before M
OORE, REYNA, and TARANTO, Circuit Judges.
PER CURIAM.
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COCHRAN v. MSPB 2
Terry Cochran appeals a decision of the Merit Systems
Protection Board dismissing her appeal for lack of jurisdic-
tion. Because the Board correctly determined that it
lacked jurisdiction over Ms. Cochran’s appeal, we affirm.
B
ACKGROUND
Ms. Cochran filed a Federal Employees Retirement
System application with the Office of Personnel Manage-
ment (OPM) seeking disability retirement benefits. In a
letter dated April 6, 2018, OPM approved Ms. Cochran’s
application. S.A. 72–75. Ms. Cochran requested reconsid-
eration of OPM’s decision, challenging its calculation of her
annuity. In October 2018, before OPM had rendered a de-
cision on the request for reconsideration, Ms. Cochran ap-
pealed OPM’s initial decision to the Board. S.A. 66–80.
OPM moved to dismiss the appeal for lack of jurisdiction.
S. A. 53–56. The administrative judge granted OPM’s mo-
tion on March 1, 2019, holding that the Board lacked juris-
diction over Ms. Cochran’s appeal because OPM had not
rendered a final appealable decision. J.A. 1–10. The ad-
ministrative judge determined that the six months Ms.
Cochran’s reconsideration request was pending does not
constitute inordinate delay. J.A. 2. Because neither party
petitioned the full Board for review, the administrative
judge’s decision became the final decision of the Board on
April 5, 2019. Ms. Cochran timely appeals. We have juris-
diction pursuant to 28 U.S.C. § 1295(a)(9).
D
ISCUSSION
We will uphold a Board decision unless it is (1) arbi-
trary, capricious, an abuse of discretion, or otherwise not
in accordance with the law; (2) obtained without proce-
dures required by law, rule, or regulation having been fol-
lowed; or (3) unsupported by substantial evidence. 5 U.S.C.
§ 7703(c). We review the Board’s dismissal for lack of ju-
risdiction de novo. Johnson v. Merit Sys. Prot. Bd., 518
F.3d 905, 909 (Fed. Cir. 2008). The Board’s jurisdiction is
limited to those actions made appealable to it by law, rule,
Case: 19-1986 Document: 30 Page: 2 Filed: 03/11/2020

COCHRAN v. MSPB 3
or regulation. See 5 U.S.C. § 7701(a). The Board has ju-
risdiction over appeals from final decisions of OPM affect-
ing the rights or interests of an individual. 5 C.F.R.
§ 831.110; 5 U.S.C. § 8347(d)(1). OPM decisions are final
when they are rendered on reconsideration or are expressly
issued as final decisions with a right to appeal. 5 C.F.R.
§ 831.109. An exception to the final decision requirement
exists where OPM refuses or improperly fails to render a
final decision. See Okello v. Office of Pers. Mgmt., 120
M.S.P.R. 498, 502–504 (2014).
Ms. Cochran does not dispute that OPM had not ren-
dered a decision on reconsideration at the time of her ap-
peal, or that OPM has not rendered a final decision
expressly providing a right to appeal. And there is no evi-
dence that OPM has refused to issue a final decision. Ms.
Cochran contended below that the Board should review
OPM’s initial decision because OPM delayed in processing
her reconsideration request. We agree with the govern-
ment that under the circumstances of this case, the fact
that OPM had not ruled on Ms. Cochran’s reconsideration
request did not amount to unreasonable delay. Unlike
Okello, OPM made no false promises regarding the timing
for the final decision. Under the totality of the circum-
stances, we see no basis upon which to disagree with the
administrative judge’s dismissal for lack of jurisdiction. At
least as of the filing of Ms. Cochran’s appeal to the Board,
six months after her request for reconsideration, OPM’s
failure to act was not unreasonable.
Ms. Cochran contends that the Board nonetheless has
jurisdiction over her appeal because she purportedly al-
leged a mixed case claim of constructive discharge. She ar-
gues she put the Board on notice of an equal employment
opportunity (EEO) complaint she filed against her supervi-
sor and therefore provided non-frivolous allegations of con-
structive discharge. Ms. Cochran’s passing reference to an
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COCHRAN v. MSPB 4
EEO complaint she filed against her supervisor, however,
is insufficient to render her annuity case a mixed case. See
Perry v. Merit Sys. Prot. Bd., 137 S. Ct. 1975 (2017). Her
appeal contained no allegation that she had been construc-
tively discharged, nor did she allege discrimination or re-
taliation. S.A. 11–13. Her reference to the EEO complaint
appeared in the context of alleged errors in OPM’s annuity
calculations, supporting her belief that the employment
record submitted by her agency did not accurately reflect
her performance. S.A. 12–13. Ms. Cochran’s appeal to the
Board is therefore not a mixed case, but rather is limited
to challenging the accuracy of OPM’s annuity calculation.
Accordingly, in the absence of a final appealable decision,
we agree the Board lacks jurisdiction over Ms. Cochran’s
appeal.
CONCLUSION
Because the Board lacks jurisdiction, we affirm.
AFFIRMED
COSTS
No costs.
Case: 19-1986 Document: 30 Page: 4 Filed: 03/11/2020