NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
ELENA A. STILLWELL,
Petitioner
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent
______________________
2015-3184
______________________
Petition for review of the Merit Systems Protection
Board in No. SF-0841-15-0135-I-1.
______________________
Decided: November 10, 2015
______________________
ELENA A. STILLWELL, Escondido, CA, pro se.
JEFFREY GAUGER, Office of the General Counsel, Merit
Systems Protection Board, Washington, DC, for respond-
ent. Also represented by BRYAN G. POLISUK.
______________________
Before TARANTO, PLAGER, and LINN, Circuit Judges.
2 STILLWELL v. MSPB
PER CURIAM.
Elena A. Stillwell (“Stillwell”) appeals from a decision
of the Merit Systems Protection Board (“MSPB” or
“Board”) dismissing her appeal for lack of jurisdiction.
Stillwell v. Office of Personnel Mgmt., MSPB Docket No.
SF-0841-15-0135-I-1 (Final Order, June 5, 2015; Initial
Decision, Feb. 25, 2015). This court has jurisdiction
under 5 U.S.C. § 7703(b)(1)(A) and 28 U.S.C. § 1295(a)(9).
For the reasons set forth below, this court affirms the
Board’s dismissal of Stillwell’s appeal.
DISCUSSION 1
This court reviews the Board’s determination that it
lacks jurisdiction de novo as a legal issue. Forest v. Merit
Sys. Protection Bd., 47 F.3d 409, 410 (Fed. Cir. 1995).
The court reviews the Board’s factual findings for sub-
stantial evidence. Bolton v. Merit Sys. Protection Bd., 154
F.3d 1313, 1316 (Fed. Cir. 1998).
The Board has jurisdiction over “[A]n administrative
action or order affecting the rights or interests of an
individual or of the United States under [the Federal
Employees Retirement System (“FERS”) as] administered
by the Office [of Personnel Management (“OPM”)].” 5
U.S.C. § 8461(e)(1). Ordinarily, this means the Board can
assume jurisdiction over a FERS appeal from OPM only
after OPM has issued either a reconsideration decision
under 5 C.F.R. § 841.306, or an initial decision without
reconsideration rights under 5 C.F.R. § 841.307. Okello v.
Office of Personnel Mgmt., 120 M.S.P.R. 498, 502 (2014).
It is undisputed that OPM did not issue either of these
types of decisions.
1 Because we write for the parties, familiarity with
the background of the case is assumed.
STILLWELL v. MSPB 3
Before the Board, Stillwell argued for jurisdiction un-
der a series of Board precedents, in which OPM’s failure
to take action (i.e. failure to issue an appealable decision)
itself became “an administrative action or order affecting
the rights or interests of an individual.” This court has
approved the Board taking jurisdiction over such situa-
tions where OPM “has refused or improperly failed to
issue a final decision.” Id.; Malone v. Merit Sys. Protec-
tion Bd., 590 F. App’x 1002, 1003 (Fed. Cir. 2015) (non-
precedential) (“However, an exception to the final decision
requirements exists where OPM . . . fails to issue a deci-
sion within a reasonable time.”) (citing Okello, 120
M.S.P.R. at 502-04); McNeese v. Office of Personnel
Mgmt., 61 M.S.P.R. 70, 74 (1994), aff’d 40 F.3d 1250 (Fed.
Cir. 1994) (Table).
In Okello, the Board found that OPM had “effectively
abdicated its role of adjudicating [the] claim,” Okello, 120
M.S.P.R. at 504, by failing to issue a final decision after
over 6 years of dispute, id. at 503, and after repeated
attempts by the appellant to procure a final decision.
Similarly, in Easter, OPM did not acknowledge receipt of
an application, and failed to take any action for over 18-
months. Easter v. Office of Personnel Mgmt., 102
M.S.P.R. 568, 571 (2006). Because the Board concluded
that OPM did not intend to adjudicate the application, the
Board assumed jurisdiction. Id.
Here, the Board considered but rejected Stillwell’s ar-
gument that OPM’s inaction was sufficient to vest juris-
diction with the Board. The Board noted the short six
months between Stillwell’s application and her appeal,
and concluded that “[t]his appeal presents none of the[]
compelling circumstances” of Okello. The Board made
clear that the communications between Stillwell and
OPM should have “assured [her] that once she supplied
information that would assist with locating her husband’s
records, the agency would respond.” The Board thus
dismissed Stillwell’s appeal.
4 STILLWELL v. MSPB
We agree with the Board. This case is not like Okello
or Easter. Here, Stillwell began corresponding with OPM
regarding her application in July of 2014, received re-
sponses indicating some difficulties attaining her hus-
band’s records, and asking for more information. When
Stillwell requested a final decision in November of 2014,
she received a response from a senior OPM administrator
apologizing for the delay, and explaining that the delay
was caused by the search for her husband’s service rec-
ords. The letter stated: “Once the search is completed we
will be able to respond to your application. Thank you for
your continued patience in this process.” Stillwell did not
wait for OPM, but filed an appeal to the Board the next
week.
The statutory authority to decide a FERS application
rests initially with OPM, and will remain with OPM until
a final or reconsideration decision is reached, or some
basis exists to conclude that OPM refuses or does not
intent to act. In light of the short delay between initiation
and Stillwell’s filing, and OPM’s clear indication of its
intent to issue a decision, this is not a case where OPM
has abdicated its role to adjudicate the dispute. From
July of 2014 through Stillwell’s filing on November 24,
2014, OPM indicated its intent to issue a decision once
the necessary administrative prerequisites were met, and
there is no reason to suppose that OPM will not act on
Stillwell’s filing. Because OPM has not “refused or im-
properly failed to issue a final decision,” Okello, 120
M.S.P.R. at 502, and because OPM does intend to adjudi-
cate the issue, this case does not fall within the narrow
“exception” permitting Board jurisdiction without a final
or reconsideration decision from OPM.
In Stillwell’s informal brief to this court, she indicates
reliance on the following laws and regulations: 5 C.F.R.
§ 1201.3(a)(2); 5 USC §§ 8347(d)(1) and (d)(2); and
5 U.S.C. § 8461(e)(1). Each of these sections vests appel-
late jurisdiction in the Board only after a decision of OPM
STILLWELL v. MSPB 5
that “affect[s] the rights or interests of an individual,”
which, as discussed above, requires an appealable deci-
sion by OPM or OPM’s refusal to issue such a decision.
Neither has occurred in this case.
We therefore affirm the Board’s dismissal of this case
for lack of jurisdiction.
AFFIRMED
COSTS
Each party shall bear its own costs.