NOTE: This disposition is nonprecedential.

 

United States Court of Appeals 

for the Federal Circuit ______________________ 

EILEEN L. MANNING,

Petitioner

v.

MERIT SYSTEMS PROTECTION BOARD,

Respondent

______________________ 

2023-1963

______________________ 

Petition for review of the Merit Systems Protection 

Board in No. PH-0831-17-0200-I-1.

______________________ 

Decided: January 9, 2024

______________________ 

EILEEN MANNING, Baltimore, MD, pro se. 

 CALVIN M. MORROW, Office of General Counsel, United 

States Merit Systems Protection Board, Washington, DC, 

for respondent. Also represented by ALLISON JANE BOYLE,

KATHERINE MICHELLE SMITH. 

 ______________________ 

Before LOURIE, CHEN, and CUNNINGHAM, Circuit Judges.

PER CURIAM. 

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2 MANNING v. MSPB

Eileen L. Manning, a former employee of the Social Security Administration (“the SSA”), appeals from a Merit 

Systems Protection Board (“the Board”) decision finding

that it lacked jurisdiction to consider her claim. Manning 

v. Off. of Pers. Mgmt., Dkt. No. PH-0831-17-0200-I-1 

(M.S.P.B. Mar. 22. 2023), S.A.1 1–6 (“Decision”). For the 

reasons below, we affirm. 

BACKGROUND

Manning worked for the SSA for nearly 40 years. Decision at 2, S.A. 2. On October 5, 1993, Manning applied 

for an optional retirement annuity from her GS-05 position 

under the Civil Service Retirement System (“CSRS”). Id. 

The Office of Personnel Management (“OPM”) granted her 

application, effective December 31, 1993, and commenced 

her annuity payments, effective January 1, 1994. Id. 

On December 14, 2015, Manning sent a letter to OPM, 

asserting that she had been eligible to retire under the 

1979 voluntary early retirement authority (“VERA”) program and requesting a declaration to that effect because 

she believed it would “assist her in receiving Social Security Benefits.” Id. The 1979 VERA program offered voluntary early retirement to SSA employees at GS-12 level and 

above within certain geographic locations, who were at 

least 50 years of age with 20 years of experience or any age 

with 25 years of experience, among other criteria. Id. Manning had not applied for the 1979 VERA program when she 

applied for optional retirement in 1993. Id. 

In a January 15, 2016 initial decision, OPM determined that Manning was ineligible for the 1979 VERA because she did not meet the grade level requirement of GS12. Id.; S.A. 29–30. On February 9, 2017, OPM issued a 

1 “S.A.” refers to the Supplemental Appendix filed 

concurrently with the government’s informal response 

brief.

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MANNING v. MSPB 3

reconsideration decision, affirming its initial decision. Decision at 2, S.A. 2; S.A. 26–28. Manning appealed to the 

Board, arguing that she was eligible for the 1979 VERA because (1) the statutory requirements for voluntary early retirement did not include a minimum grade level, (2) OPM 

had exceeded its legal authority by limiting VERA eligibility based on grade level, and (3) she met all the VERA requirements aside from grade level. Decision at 3, S.A. 3. 

She further asserted that OPM’s error in determining she 

was not eligible for VERA had prevented her from obtaining SSA benefits to which she was entitled. Id. 

The administrative judge (“AJ”) issued an initial decision, reversing OPM’s reconsideration decision. Id.; S.A. 

7–15. The AJ found that OPM lacked the authority to limit 

VERA eligibility based on grade level, and therefore its determination that Manning was not eligible for the 1979 

VERA on that basis was incorrect. Decision at 3, S.A. 3. 

OPM petitioned for review, arguing for the first time that 

both OPM and the Board lacked jurisdiction over Manning’s claims, and that the AJ’s initial decision should 

therefore be vacated. Id. The Board agreed, finding that

Manning had not met her burden to prove that OPM’s February 9, 2017 decision “implicate[d] her rights or interests 

under CSRS.” Id. at 5, S.A. 5. It noted that Manning 

“seeks to have OPM issue an opinion as to her VERA eligibility to influence SSA’s determination regarding her Social Security benefits” but that she was not “seeking an 

annuity based on her eligibility for voluntary early optional 

retirement.” Id. It concluded that OPM’s February 9, 2017 

letter, therefore, did “not qualify as an appealable reconsideration decision.” Id. The Board then vacated the AJ’s

initial decision and dismissed the appeal for lack of jurisdiction. Id. at 6, S.A. 6. 

Manning timely appealed the decision, and we have jurisdiction under 5 U.S.C. § 7703(b)(1)(A). 

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4 MANNING v. MSPB

DISCUSSION

The Board’s determination that it lacked jurisdiction

over Manning’s claim is a question of law that we review 

de novo. Forest v. Merit Sys. Prot. Bd., 47 F.3d 409, 410 

(Fed. Cir. 1995). The Board’s jurisdiction over CSRS retirement cases is governed by 5 U.S.C. § 8347(d)(1). That

statute limits the Board’s jurisdiction over CSRS cases to 

those involving “an administrative action or order affecting 

the rights or interests of an individual.” § 8347(d)(1). The 

burden is on the claimant to establish jurisdiction by a preponderance of the evidence. Garcia v. Dep’t of Homeland 

Sec., 437 F.3d 1322, 1325, 1344 (Fed. Cir. 2006) (en banc);

Lourens v. Merit Sys. Prot. Bd., 193 F.3d 1369, 1370 (Fed. 

Cir. 1999); 5 C.F.R. § 1201.56(b)(2)(i)(A). 

Manning contends that her alleged entitlement to the 

1979 VERA is a right or interest under the CSRS, regardless whether or not she actually applied for VERA. We disagree. It is undisputed that Manning did not apply for

VERA nor is she is currently seeking to alter her annuity 

in any way. Decision at 2; S.A. 2. Rather, she only asks for 

OPM to issue an opinion on her VERA eligibility, which she 

could then use to potentially influence the SSA to obtain 

favorable Social Security benefits for which she has not yet 

applied. A decision by the Board about what Manning may 

or may not be entitled to, without an actual claim for retirement benefits, would amount to an improper advisory 

opinion. 5 U.S.C. § 1204(h) (“The Board shall not issue advisory opinions.”). Even given the liberality with which we 

construe pro se filings, Erickson v. Pardus, 551 U.S. 89, 94 

(2007), Manning has not proven by a preponderance of the 

evidence that OPM’s February 9, 2017 reconsideration decision is a final decision that affects her “rights or interests.” § 8347(d)(1); 5 C.F.R. § 831.110. For that reason, the 

Board was correct in determining that it did not have jurisdiction to consider Manning’s claim.

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MANNING v. MSPB 5

CONCLUSION

We have considered Manning’s remaining arguments 

and find them unpersuasive. For the foregoing reasons, we 

affirm. 

AFFIRMED

COSTS

No costs.

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