NOTE: This disposition is nonprecedential.

 

United States Court of Appeals 

for the Federal Circuit ______________________ 

JENIFER A. VANHORN,

Petitioner

v.

MERIT SYSTEMS PROTECTION BOARD,

Respondent

______________________ 

2021-2204

______________________ 

Petition for review of the Merit Systems Protection 

Board in No. DE-0890-21-0200-I-1.

______________________ 

Decided: May 10, 2022

______________________ 

JENIFER A. VANHORN, Wichita, KS, pro se. 

 ELIZABETH WARD FLETCHER, Office of General Counsel, 

United States Merit Systems Protection Board, Washington, DC, for respondent. Also represented by TRISTAN L.

LEAVITT, KATHERINE MICHELLE SMITH. 

 ______________________ 

Before DYK, REYNA, and STOLL, Circuit Judges.

PER CURIAM. 

Case: 21-2204 Document: 35 Page: 1 Filed: 05/10/2022
2 VANHORN v. MSPB

Jenifer VanHorn challenges the decision of the Merit 

Systems Protection Board dismissing her appeal for lack of 

jurisdiction. For the reasons below, we affirm.

BACKGROUND

Ms. VanHorn is a retired United States Postal Service

employee who presently receives a disability retirement 

annuity. SAppx. 18.1 Ms. VanHorn alleges that she applied for disability retirement from the USPS on August 

15, 2018, and that the Office of Personnel Management

wrongfully denied her application several times before 

granting it almost two years later on May 18, 2020. During 

the intervening period, in 2019, Ms. VanHorn claims that 

the USPS “unlawfully terminated” her health insurance 

and her life insurance as of January 31, 2019. SAppx. 18. 

She also alleges that she was wrongfully terminated by the 

USPS in September 2019, and that the termination took 

retroactive effect to March 30, 2019. SAppx. 18. 

Following the grant of Ms. VanHorn’s disability retirement application, OPM issued a lump sum retroactive payment to Ms. VanHorn representing the gross benefits due 

to her from March 30, 2019 (the effective date of her termination), through September 30, 2020 (the date after which 

her monthly payments began). A notice accompanying the 

payment explained that the following was being withheld 

from the lump sum: gross interim benefits, federal income 

tax, and premiums for “Additional Optional Life Insurance,” “Family Life Insurance,” “Standard Optional Life Insurance,” and “Basic Life Insurance.” SAppx. 32. The 

notice also explained that these premiums and federal income tax would also be withheld from her gross monthly 

benefit moving forward. SAppx. 31.

1 Citations to “SAppx.” refer to the Supplemental 

Appendix attached to the Government’s brief.

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VANHORN v. MSPB 3

On May 6, 2021, Ms. VanHorn filed an appeal with the 

Board “against OPM for fraud,” for re-enrolling her in life 

insurance without her consent or dated signature and subsequently deducting “all premium options” from her retroactive lump sum payment. SAppx. 17–18. Ms. VanHorn 

alleged that OPM “refuses to follow procedures of Due Process” and continues to violate her civil rights, enumerating 

various OPM actions that were, in her view, “direct evidence of [its] unabating discriminatory and retaliatory 

practices.” SAppx. 17. One of these practices included “unlawfully terminat[ing her] health and life insurance.” 

SAppx. 18. Ms. VanHorn sought “[a]ctual compensatory 

damages” and “nonpecuniary compensatory damages,” “legal costs and fees,” equitable relief, and “corrective 

measures.” SAppx. 18. 

On May 28, 2021, the Administrative Judge (AJ) issued 

an initial decision dismissing Ms. VanHorn’s appeal for 

lack of jurisdiction. SAppx. 1–3. The AJ characterized 

Ms. VanHorn’s appeal as arising out of her “re-enrollment 

in a Federal Employees Health Benefits plan by [OPM], 

and the later termination of her coverage under the same 

plan.” SAppx. 1. The AJ explained that although the 

Board issued an acknowledgement order apprising 

Ms. VanHorn of her burden to establish Board jurisdiction 

over her appeal, Ms. VanHorn did not produce evidence of 

a final decision from OPM. SAppx. 2–3. In response to the 

acknowledgement order, Ms. VanHorn submitted a letter 

that she sent to OPM requesting a reconsideration decision, but she filed her appeal with the Board before hearing 

back from OPM. SAppx. 2. The AJ explained that 

Ms. VanHorn had therefore not established that the Board 

had jurisdiction over her claims because she had not shown 

that OPM had rendered a final decision. SAppx. 2–3. 

On June 30, 2021, Ms. VanHorn filed a document with 

the Board asking the Board to “[c]ompel OPM to issue the 

FAD [Final Agency Decision].” SAppx. 44–49. A week 

later, on July 6, 2021, the Board informed Ms. VanHorn 

Case: 21-2204 Document: 35 Page: 3 Filed: 05/10/2022
4 VANHORN v. MSPB

that it was unclear whether her document was a petition 

for review addressed to the full Board and advised her that 

it would only treat her filing as such if she confirmed that 

was her intent by July 20, 2021. SAppx. 50–52. 

Ms. VanHorn did not file a response to the Board’s letter. 

Accordingly, the initial decision became final as of July 2, 

2021.

Ms. VanHorn timely appealed. We have jurisdiction 

under 28 U.S.C. § 1295(a)(9).

DISCUSSION

Ms. VanHorn makes many arguments on appeal. 

First, she argues that the Board “failed to take into consideration that [she] did not sign [a] life insurance re-enrollment form,” and that OPM “fraudulently deducted life 

insurance” premium payments from her lump sum retroactive payment and monthly retirement benefits. Petitioner’s Br. 2. Second, she reiterates her Due Process and 

discrimination claims. Id. Third, Ms. VanHorn argues 

again that OPM unlawfully terminated her health insurance coverage and asks that OPM immediately reinstate 

her health insurance coverage without retroactively deducting the premiums from her benefits. Id. at 2–3. For 

the first time, Ms. VanHorn argues that the date from 

which OPM calculated her retroactive benefits payment 

was improper; and that OPM must correct her 1099-R form 

for fiscal year 2020 to reflect that she was on disability retirement. Id. at 3.

Whether the Board has jurisdiction over an appeal is a 

question of law that we review de novo. See Bryant v. Merit 

Sys. Prot. Bd., 878 F.3d 1320, 1325 (Fed. Cir. 2017). The 

Board may exercise jurisdiction over administrative appeals only when authorized by a “law, rule, or regulation.” 

5 U.S.C. § 7701(a). We agree with the Board that it lacked

jurisdiction over Ms. VanHorn’s appeal.

Case: 21-2204 Document: 35 Page: 4 Filed: 05/10/2022
VANHORN v. MSPB 5

We begin with Ms. VanHorn’s claim that OPM fraudulently deducted life insurance premiums from her retroactive lump sum payment and from her monthly benefits 

even though she did not sign a life insurance enrollment 

form. Petitioner’s Br. 1. Although the Board characterized 

Ms. VanHorn’s claims as founded on OPM’s administration 

of health insurance benefits, her claims are undisputedly 

founded on OPM’s administration of the Federal Employees’ Group Life Insurance Act (FEGLIA). See SAppx. 17 

(stating “I, Jenifer A. VanHorn . . . am requesting to file a 

formal complaint against OPM for fraud, ‘re’enrolling life 

insurance without my consent, signature, nor dated, deducting all premium options”); see also Petitioner’s Br. 2; 

SAppx. 30 (outlining Ms. VanHorn’s “life insurance coverage under the Federal Employees’ Group Life Insurance 

Program”). And, as we have held, the Board “does not have 

jurisdiction over appeals arising from OPM’s administration of the Federal Employees’ Group Life Insurance Act 

(‘FEGLIA’).” Miller v. Off. of Pers. Mgmt., 449 F.3d 1374, 

1377 (Fed. Cir. 2006); 5 U.S.C. §§ 8701–16. 

We reach this conclusion notwithstanding the Board’s 

different characterization of Ms. VanHorn’s claims. We 

may affirm an agency’s decision on “grounds other than 

those relied upon in rendering [the agency’s] decision, 

when upholding the agency’s decision does not depend on 

making a determination of fact not previously made by the 

agency,” including in situations where the Board lacks jurisdiction. McCarthy v. Merit Sys. Prot. Bd., 809 F3d 1365, 

1373 (Fed. Cir. 2016) (quoting In re Comiskey, 554 F.3d 

967, 974 (Fed. Cir. 2009)); see also Sec. & Exch. Comm’n 

v. Chenery Corp., 318 U.S. 80, 88 (1943) (“It would be 

wasteful to send a case back to a lower court to reinstate a 

decision which it has already made but which the appellate 

court concluded should properly be based on another 

ground within the power of the appellate court to formulate.”). Upholding the Board’s determination that it does 

not have jurisdiction over any of Ms. VanHorn’s claims 

Case: 21-2204 Document: 35 Page: 5 Filed: 05/10/2022
6 VANHORN v. MSPB

does not require our court to make factual findings not previously made by the Board, and instead requires only applying the relevant statutes to the undisputed facts of the 

case. 5 U.S.C. §§ 8701–16. Ms. VanHorn’s primary claim 

is founded in her dispute with OPM’s administration of 

FEGLIA, and more specifically OPM’s allegedly improper 

collection of life insurance premiums, a claim over which 

the Board does not have jurisdiction. We thus affirm the 

Board’s decision to dismiss this portion of Ms. VanHorn’s 

appeal for lack of jurisdiction.

We turn next to Ms. VanHorn’s claim that OPM “unlawfully terminated” her health insurance coverage; her allegations of various constitutional rights and statutory 

violations and crimes;2 and her demand for damages and 

fees. SAppx. 2–3, 17–18, 26, 29. Although we liberally construe pro se filings like Ms. VanHorn’s, this does not relieve 

her of her burden to establish jurisdiction. Lourens v. Merit 

Sys. Prot. Bd., 193 F.3d 1369, 1370 (Fed. Cir. 1999); 

5 C.F.R. § 1201.57(b). Ms. VanHorn did not produce any 

evidence of an OPM reconsideration decision or an OPM 

initial decision not subject to reconsideration. Furthermore, there was no basis for concluding that OPM improperly failed to render a decision. The Board found that the

three weeks (at most) that passed between the date 

Ms. VanHorn allegedly sent her letter requesting a reconsideration decision to OPM and the date Ms. VanHorn filed 

her appeal to the Board was not sufficient to “construe 

OPM’s lack of response as a constructive final decision.” 

SAppx. 2–3. Because there was no final decision from OPM 

2 Ms. VanHorn alleges violations of constitutional 

Due Process; the Americans with Disabilities Act of 1990; 

the Rehabilitation Act of 1973; the Civil Rights Act of 1964; 

Title VII; and perpetration of trespass against common 

laws, oversight policies regarding pay and leave, and prohibited personnel practices.

Case: 21-2204 Document: 35 Page: 6 Filed: 05/10/2022
VANHORN v. MSPB 7

regarding her health insurance coverage, the Board correctly determined that it did not have jurisdiction over 

these claims. See 5 U.S.C. §§ 8347(d), 8461(e); 5 C.F.R. 

§§ 831.110, 841.308. We thus affirm the Board’s decision 

to dismiss this portion of Ms. VanHorn’s appeal for lack of 

jurisdiction.3

Finally, Ms. VanHorn argues that the start date of her 

retroactive disability retirement payments was improperly 

determined and that OPM must correct her 2020 1099-R 

form. These claims, raised for the first time on appeal, are 

waived. Bosley v. Merit Sys. Prot. Bd., 162 F.3d 665, 668 

(Fed. Cir. 1998) (“A party in an MSPB proceeding must 

raise an issue before the administrative judge” if the issue 

is “to be preserved for review in this court.”).4 

CONCLUSION

For the above reasons, we affirm the decision of the 

Board. 

AFFIRMED

COSTS

No costs.

3 Ms. VanHorn can raise these issues before the 

Board once OPM issues a final decision.

4 To the extent that Ms. VanHorn’s complaint, liberally construed, did properly raise a challenge to her disability retirement payments and tax document, the Board 

would not have had jurisdiction due to Ms. VanHorn’s failure to obtain a final decision from OPM regarding those 

claims. See 5 U.S.C. §§ 8347(d), 8461(e); 5 C.F.R. 

§§ 831.110, 841.308.

Case: 21-2204 Document: 35 Page: 7 Filed: 05/10/2022