NOTE: This disposition is nonprecedential.

United States Court of Appeals 

for the Federal Circuit ______________________

NATALIE GREEN,

Petitioner

v.

MERIT SYSTEMS PROTECTION BOARD,

Respondent

______________________

2018-2264

______________________

Petition for review of the Merit Systems Protection 

Board in No. CH-0841-18-0317-I-1.

______________________

Decided: April 4, 2019

______________________

NATALIE GREEN, Maywood, IL, pro se. 

 SARA B. REARDEN, Office of General Counsel, Merit 

Systems Protection Board, Washington, DC, for respondent. Also represented by KATHERINE MICHELLE SMITH,

TRISTAN LEAVITT. 

 ______________________

Before DYK, CLEVENGER, and O’MALLEY, Circuit Judges.

PER CURIAM.
2 GREEN v. MSPB

Natalie Green appeals the Merit Systems Protection 

Board’s (“the Board”) final decision dismissing her appeal 

for lack of jurisdiction. See Green v. Office of Pers. Mgmt.,

No. CH-0841-18-0317-I-1 (May 30, 2018). Because the 

Board correctly concluded that it lacked jurisdiction to review the Office of Personnel Management’s (“OPM”) nonfinal decision, we affirm.

BACKGROUND

On January 23, 2018, Ms. Green received a letter from 

OPM informing her that there was a discrepancy between 

her earned income for 2016 reflected in her OPM disability 

files and the earned income for that same year reflected in 

the Social Security Administration’s (“SSA”) earning files. 

According to OPM, Ms. Green’s 2016 income, as reported 

by the SSA, exceeded the limit on the amount of income she 

could earn while still remaining eligible to receive disability retirement benefits from OPM. OPM therefore informed Ms. Green in its January 23, 2018 letter that, if 

OPM’s determination was correct, she may not be entitled 

to continue receiving disability retirement benefits. The 

letter noted that Ms. Green had thirty days to dispute 

OPM’s determination by mailing to OPM copies of her 2016 

W–2, her spouse’s W–2 for that year if she filed jointly, 

complete copies of her federal income tax returns for that 

year, and any additional documents she deemed helpful. 

Ms. Green responded to OPM’s letter on February 23, 

2018, explaining her income in 2016 and providing the requested documents and information. On March 12, 2018, 

OPM notified Ms. Green that it reviewed her case folder 

and concluded its initial determination would stand. 

Thus, OPM informed Ms. Green that her disability annuity, life insurance, and health benefits would be discontinued. OPM’s March 12th letter referred Ms. Green to the RI 

30–9 form included with the January 23rd letter which, according to OPM, would “guide” Ms. Green on her “rights 
GREEN v. MSPB 3

and responsibilities for reinstatement of [her] disability annuity.” J.A. at 42. 

On April 17, 2018, OPM mailed Ms. Green a letter 

“follow[ing]-up” on its initial letter. J.A. at 15. The letter 

reiterated that Ms. Green was no longer entitled to receive 

disability retirement benefits, and explained that, because 

her annuity was not terminated until April 9, 2018, she received an overpayment that she would have to pay back to 

OPM. The letter gave Ms. Green the “option to make repayment, or request reconsideration, waiver or compromise of [her] debt” within thirty days of the letter date, and 

it included an attachment detailing how to request reconsideration from OPM. On May 16, 2018, Ms. Green sent 

OPM a letter exercising her right to reconsideration. 

On April 11, 2018, six days before receiving OPM’s 

April 17th letter, Ms. Green filed an appeal with the 

Board’s Regional Office, disputing OPM’s decision to terminate her disability annuity payments. The administrative 

law judge (“ALJ”) assigned to Ms. Green’s case issued an 

Acknowledgment Order in response to Ms. Green’s appeal, 

which informed Ms. Green that she had a right to a hearing 

if her appeal was timely filed and was within the Board’s

jurisdiction. OPM was ordered to submit the agency file 

pertaining to Ms. Green’s case. The Government did not

respond to the ALJ’s order by the required date. 

The ALJ issued a second order to OPM to submit its

agency file no later than May 19, 2018. The ALJ also ordered Ms. Green to file evidence proving that the action 

was within the Board’s jurisdiction by May 25, 2018. 

OPM responded to the ALJ’s second order on May 16, 

2018, attaching the agency file and informing the ALJ that 

it had not yet issued a final decision in the matter regarding Ms. Green. OPM stated that it had issued an initial 

decision to Ms. Green on April 17, 2018, but it had yet to 

receive a request for reconsideration. It thus moved for dismissal of Ms. Green’s appeal for lack of jurisdiction because 
4 GREEN v. MSPB

OPM’s decision in the matter was not final, and, as of the 

date Ms. Green filed her appeal, OPM did not have the opportunity to consider the issues raised by Ms. Green in either an initial or final decision. 

On May 25, 2018, Ms. Green responded that the March 

12, 2018 letter from OPM constituted a final decision, but 

she requested more time to prepare an adequate response 

to both the Board’s order and OPM’s motion to dismiss. 

The ALJ issued an Initial Decision on May 30, 2018, 

dismissing Ms. Green’s appeal for lack of jurisdiction. The 

ALJ noted that it had jurisdiction over OPM determinations regarding the Federal Employment Retirement System (“FERS”) only after OPM issues a final, appealable 

decision. Because Ms. Green filed her appeal before obtaining a final, appealable decision, the ALJ found the appeal 

“clearly . . . premature.” J.A. at 4–5. In a footnote to its 

decision, the ALJ denied Ms. Green’s request for an extension of time because it had given her “more than six weeks

. . . to submit proof of a final decision” and “the record 

clearly reflect[ed] that the agency ha[d] not yet issued a final decision.” J.A. at 5 n.3. When Ms. Green did not file a 

petition for review, the ALJ’s Initial Decision became the 

Board’s final decision thirty-five days after issuance. See 5 

U.S.C. § 7701(e)(1); 5 C.F.R. § 1201.113.

On August 16, 2018, OPM issued its reconsideration 

decision affirming the initial determination that Ms. Green 

was ineligible for disability annuity and that she was overpaid $12,664.22 in FERS annuity benefits. OPM’s decision 

explicitly noted that it “constitute[d] the final decision of 

OPM” and it detailed Ms. Green’s right to appeal to the 

Board. J.A. at 53. Ms. Green’s separate appeal of OPM’s

August 16, 2018 reconsideration decision is currently pending before the Board. See Green v. Office of Pers. Mgmt., 

No. CH-0845-18-0576-I-1.

We have jurisdiction over Ms. Green’s appeal pursuant 

to 28 U.S.C. § 1295(a)(9).
GREEN v. MSPB 5

DISCUSSION

We will set aside the Board’s decision only when 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). The Board’s jurisdiction to adjudicate a 

case is a question of law, which we review de novo. Forest

v. Merit Sys. Prot. Bd., 47 F.3d 409, 410 (Fed. Cir. 1995). 

Ms. Green has the burden of establishing the Board’s jurisdiction to hear her case. Prewitt v. Merit Sys. Prot. Bd., 133 

F.3d 885, 886 (Fed. Cir. 1998). 

The Board has jurisdiction to review “an administrative action or order affecting the rights or interests of an 

individual or of the United States under the provisions of 

[FERS as] administered by [OPM].” 5 U.S.C. § 8461(e)(1). 

Typically, the Board assumes jurisdiction over a FERS appeal from OPM only after OPM issues 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 Pers. Mgmt., 120 M.S.P.R. 

498, 502 (M.S.P.B. Jan. 16, 2014). The Board will also take 

jurisdiction over a FERS appeal, despite the lack of a reconsideration decision or an initial decision without reconsideration rights, when OPM has “refused to issue a 

reconsideration decision” or “improperly failed to respond 

to the appellant’s repeated requests for a decision on his [or 

her] retirement application.” McNeese v. Office of Pers. 

Mgmt., 61 M.S.P.R. 70, 74 (M.S.P.B. Feb. 24, 1994), aff’d 

sub nom., McNeese v. Merit Sys. Prot. Bd., 40 F.3d 1250 

(Fed. Cir. 1994).

Before the Board, Ms. Green argued that OPM’s March 

12th letter constituted a final, appealable decision. To support that same argument on appeal, Ms. Green cites to 

Board precedent for the proposition that “[a]n OPM letter 

notifying an annuitant that his annuity payments are 
6 GREEN v. MSPB

being suspended is tantamount to an appealable reconsideration decision.” Pet’r’s Br. at 1 (citing Johnson v. Office 

of Pers. Mgmt., 113 M.S.P.R. 118, 123 (M.S.P.B. Jan. 13, 

2010)). But Johnson is distinguishable.

In Johnson, the Board determined it had jurisdiction 

despite the lack of a reconsideration decision because OPM 

never answered appellant’s letter requesting information 

regarding his appeal rights and OPM never indicated, either before or during the appeal to the Board, that it

planned to take further action in the appellant’s case. 113 

M.S.P.R. at 123. The Board noted that they had previously 

exercised jurisdiction under similar circumstances where 

OPM effectively circumscribed an annuitant’s appeal 

rights by failing to adjudicate his claim to a final, appealable decision. Id.

Here, Ms. Green never sent a letter to which OPM 

failed to respond. As the Board noted, OPM also never indicated that it did not intend to take further action. Indeed, OPM sent a letter to Ms. Green on April 17, 2018, six 

days after she filed her appeal with the Board, notifying 

her of the right to request reconsideration of the decision 

to terminate her disability retirement benefits. 

Moreover, Ms. Green cannot purport to suffer any 

harm as a result of OPM’s or the Board’s actions. After 

receiving OPM’s April 17th letter, Ms. Green exercised her 

right to reconsideration as outlined in that letter. On August 16, 2018, OPM issued its final decision which noted 

Ms. Green’s right to appeal the decision to the Board within 

thirty days of the letter date. Ms. Green’s appeal from 

OPM’s August 16th decision is currently pending before 

the Board. See Green v. Office of Pers. Mgmt., No. CH0845-18-0576-I-1. The precise remedy she seeks before this 

Court—the right to appeal OPM’s termination of her annuity benefits to the Board—is one she already received.

In Ms. Green’s Amended Memorandum in Lieu Of Oral 

Argument, she contends that she was “forced to respond” 
GREEN v. MSPB 7

to the April 17th letter, and did so only to “preserve her 

Due Process Rights.” Am. Mem. in Lieu of Oral Arg. at 5

(March 22, 2019). She argues that the April 17th letter 

afforded her an option to request reconsideration of the 

$12,664.22 she owed to OPM for total gross annuity overpayments. She does not believe it afforded her the right to 

request reconsideration of the decision to terminate her 

disability retirement benefits. She believes, therefore, that 

despite the April 17th letter, OPM’s March 12th letter still 

constituted a final decision to terminate her disability retirement benefits from which she could appeal to the 

Board. 

Ms. Green’s characterization of the April 17th letter is 

inaccurate. The letter specifically mentions OPM’s decision to terminate Ms. Green’s disability retirement benefits. The additional discussion regarding annuity 

overpayments is based on the fact that she is no longer entitled to receive disability retirement benefits under FERS. 

The document attached to the April 17th letter, which explains Ms. Green’s right to request reconsideration of 

OPM’s decision, further states that she is entitled to request reconsideration if she “object[s] to OPM’s decision to 

hold [her] responsible for the repayment of the debt.” J.A. 

at 17. Of course, inherent in an objection to OPM’s decision 

to hold her responsible for repayment of the debt is the decision to find her ineligible to receive the annuity payments 

in the first place. It was therefore the April 17th letter that 

afforded her the right to request reconsideration of OPM’s 

decision to terminate her FERS benefits. The March 12th 

letter had no effect on her right to appeal to the Board.

Ms. Green’s other arguments are unavailing. Ms. 

Green contends that OPM’s failure to respond to the 

Board’s Acknowledgement Order affected the Board’s ability “to hear [a]ll of the [r]ecord of [m]aterial [f]acts and 

[e]vidence at [i]ssue.” Pet’r’s Br. at 17. But, OPM responded to the Board’s second order two days after it was 

issued, attaching the required agency file. Additionally, 
8 GREEN v. MSPB

Ms. Green does not specify any material facts or evidence 

missing from the record that would have changed the 

Board’s determination on the jurisdictional issue. 

Ms. Green also argues that the Board prevented her 

from submitting “[m]aterial documentation and factual information related to [the] case” when it denied her request 

for an extension of time. Id. at 16-17. Ms. Green does not 

argue, nor could she, that she would have been able to produce evidence of a final decision from OPM had the Board 

granted her request. As the Board noted in its opinion, it 

gave Ms. Green “more than six weeks . . . to submit proof 

of a final decision” and “the record clearly reflect[ed] that 

the agency ha[d] not yet issued a final decision.” J.A. at 5 

n.3. The Board did not err in denying Ms. Green’s request. 

We therefore affirm that Board’s dismissal of this case 

for lack of jurisdiction.

AFFIRMED

COSTS

No costs.