NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2007-3089
JANET K. HUFENBACH,
Petitioner,
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent.
Janet K. Hufenbach, of Rocky River, Ohio, pro se.
Ward P. Griffin, Attorney, Office of the General Counsel, United States Merit
Systems Protection Board, of Washington, DC, for respondent. With him on the brief
were B. Chad Bungard, General Counsel, Rosa M. Koppel, Deputy General Counsel,
and Calvin M. Morrow, Acting Associate General Counsel.
Appealed from: United States Merit Systems Protection Board
NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2007-3089
JANET K. HUFENBACH,
Petitioner,
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent.
__________________________
DECIDED: August 10, 2007
__________________________
Before NEWMAN, LOURIE, and PROST, Circuit Judges.
PER CURIAM.
Petitioner Janet K. Hufenbach, pro se, appeals a decision of the Merit Systems
Protection Board that dismissed, at her request, her appeal of a decision of the Office of
Personnel Management that held that her request for disability retirement was untimely
filed. Hufenbach v. Office of Pers. Mgmt., No. CH844E060656-I-1 (M.S.P.B. Nov. 20,
2006). Because we discern no legal or procedural error, we affirm the Board's decision.
BACKGROUND
Ms. Hufenbach was employed by the Defense Logistics Agency. She developed the
debilitating disease of multiple sclerosis, and because of her medical condition, on March 1,
1999 Ms. Hufenbach accepted the agency's offer of "Voluntary Separation Incentive Pay."
She had 19 l/2 years of federal service. She states that she was incorrectly counseled, and
that she erred in choosing this procedure instead of seeking disability retirement. On
August 16, 2005 she applied to OPM, asking to change the conditions of her separation
and requesting a disability annuity.
OPM ruled that her disability retirement application was not timely filed, and that she
did not meet the criteria for waiver. The controlling statute, 5 U.S.C. '8453, provides:
A claim may be allowed under this subchapter only if application is filed with
the Office before the employee or Member is separated from the service or
within 1 year thereafter. This time limitation may be waived by the Office for
an employee or Member who, at the date of separation from service or within
1 year thereafter, is mentally incompetent if the application is filed with the
Office within 1 year from the date of restoration of the employee or Member
to competency or the appointment of a fiduciary, whichever is earlier.
OPM explained that while it accepted that multiple sclerosis resulted in physical disability,
Ms. Hufenbach was not mentally incompetent, and that no ground of waiver had been
shown. Ms. Hufenbach appealed to the Board.
During a telephonic status conference, Ms. Hufenbach told the Administrative Judge
that she wanted to withdraw the appeal. The AJ explained that withdrawal of an appeal
must be in writing. The same day Ms. Hufenbach sent, by fax, a letter stating: "As agreed, I
am withdrawing my Reconsideration for Disability Retirement Appeal." The AJ then
dismissed the appeal; the dismissal letter included the standard instructions on how to seek
review from the full Board from an AJ decision with which the petitioner is dissatisfied. Ms.
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Hufenbach filed a petition for review by the full Board, arguing the merits of her request for
disability retirement. She did not mention the withdrawal of her appeal. The full Board
denied her petition for review because she had presented "no new, previously unavailable,
evidence." This appeal followed.
DISCUSSION
A decision of the Board must be affirmed unless it is (1) arbitrary, capricious, 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) unsupported by
substantial evidence. 5 U.S.C. '7703(c) (2000); Cheeseman v. Office of Pers. Mgmt., 791
F.2d 138, 140 (Fed. Cir. 1986).
It is uncontroverted that Ms. Hufenbach withdrew, in writing, her pending Board
appeal. In Brown v. Dep't of the Navy, 71 M.S.P.R. 451 (1996) the Board explained:
Generally, an employee's withdrawal of an appeal is an act of finality that
removes the appeal from the Board's jurisdiction, and . . . the Board will not
reinstate an appeal once it has been withdrawn in the absence of unusual
circumstances such as misinformation or new and material evidence.
Id. at 453-54. Ms. Hufenbach directs us to no unusual circumstances. In her appeal to this
court she does not mention the withdrawal of the appeal that was before the AJ. She
argues the merits of her claim for disability retirement.
The Board has explained that the voluntary withdrawal of an appeal, since an act of
finality, "must be clear, unequivocal, and decisive." Bass v. United States Postal Serv., 96
M.S.P.R. 683, 685 (2004); Soto v. Dep't of Justice, 95 M.S.P.R. 552, &5 (2004). Ms.
Hufenbach's written withdrawal clearly expressing her intent met these criteria. She does
not state that she was misinformed as to the withdrawal; to the contrary, she was told that
2007-3089 3
oral withdrawal would not suffice. In view of her voluntary action, taken in writing, the
dismissal of the appeal must be sustained.
No costs.
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