Redding v. Office of Pers. Mgmt.

Decision Date19 May 2023
Docket NumberCB-1205-21-0015-U-1
PartiesSTEPHANIE REDDING, Petitioner, v. OFFICE OF PERSONNEL MANAGEMENT, Agency.
CourtMerit Systems Protection Board

THIS FINAL ORDER IS NONPRECEDENTIAL[1]

Stephanie Redding, Largo, Maryland, pro se.

Roxann Johnson, Washington, D.C., for the agency.

BEFORE Cathy A. Harris, Vice Chairman Raymond A. Limon, Member Tristan L. Leavitt, Member [2]

FINAL ORDER

¶1 The petitioner requests that we review, pursuant to our authority under 5 U.S.C. § 1204(f), an Office of Personnel Management (OPM) regulation 5 C.F.R. § 831.1207, that provides that an employee's disability retirement application shall be considered withdrawn under certain circumstances. For the reasons set forth below, we DENY the petitioner's request because it does not meet our discretionary review criteria.

BACKGROUND

¶2 The petitioner was a Federal Air Marshal with the Transportation Security Administration (TSA) when she applied for disability retirement under the Federal Employees' Retirement System (FERS). See Redding v. Office of Personnel Management, MSPB No. DC-0845-21-0312-I-1 Initial Appeal File (0312 IAF), Initial Decision (0312 ID), Tab 26 at 2-3. After initially approving the application, OPM rescinded its approval upon learning that the TSA had reassigned the petitioner to the position of Law Enforcement Specialist with the Federal Law Enforcement Training Center. 0312 ID at 3. The petitioner appealed OPM's final decision to the Board. 0312 IAF, Tab 1. The administrative judge concluded that the petitioner was required to file her disability retirement application from the Law Enforcement Specialist position and that OPM was correct in rescinding its approval. 0312 ID at 7. The petitioner did not file a petition for review with the Board and therefore the initial decision became final by operation of law on August 17, 2021. Id. at 9.

¶3 The petitioner then filed this request for the Board to review 5 C.F.R. § 831.1207(c) and (d), which provide:

(c) OPM considers voluntary acceptance of a permanent position in which the employee has civil service retirement coverage, including a position at a lower grade or pay level, to be a withdrawal of the employee's disability retirement application. The employing agency must notify OPM immediately when an applicant for disability retirement accepts a position of this type.
(d) OPM also considers a disability retirement application to be withdrawn when the agency reports to OPM that it has reassigned an applicant or an employee has refused a reassignment to a vacant position, or the agency reports to OPM that it has successfully accommodated the medical condition in the employee's current position. Placement consideration is limited only by agency authority and can occur after OPM's allowance of the application up to the date of separation for disability retirement. The employing agency must notify OPM immediately if any of these events occur.

5 C.F.R. § 831.1207(c) and (d).

¶4 The petitioner asserts that the regulation requires an employee to commit a prohibited personnel practice (PPP) by discriminating on the basis of disability, as prohibited under section 501 of the Rehabilitation Act of 1973, 29 U.S.C. § 79. 5 U.S.C. § 2302(b)(1)(D). She states that it further violates 5 U.S.C. § 2301(b)(2), which provides that "[a]ll employees and applicants for employment should receive fair and equitable treatment in all aspects of personnel management without regard to . . . [disabilities][3] . . . ." Request File (RF), Tab 1 at 1-2. The petitioner claims that 5 C.F.R. § 831.1207 is "unfairly prejudicial" to the employee because it allows agencies to place an employee into a different position "without regard to the efficacy of the reassignment." Id. at 4. She states that if a reassignment "fails," the employee should be given an opportunity to pursue disability retirement from the last position the employee held where "the employee was able to successfully perform the essential duties as required." Id. at 5. She asserts that the Americans with Disabilities Act and the Rehabilitation Act require that a reassignment "be effective to be successful." Id. at 6.

¶5 OPM responds that the petitioner failed to explain how the regulation requires the commission of a PPP. RF, Tab 4 at 5. OPM states that 5 C.F.R. § 831.1207 does not govern determinations as to whether an agency's offer of a reassignment is appropriate under the circumstances or allow OPM to determine whether an agency has successfully accommodated an employee's disability. Id. at 6. OPM further states that all eligible employees may seek disability retirement approval from their final position of record whether or not the employee's disability retirement application from a previous position was deemed withdrawn under section 831.1207(c) or (d). Id. at 7. OPM asserts that petitioner's argument is "basically that she has a preferable approach to § 831.1207 and that is not a basis for the Board to conduct a regulation review under 5 U.S.C. § 1204(f)." Id. at 7-8.[4]

ANALYSIS

¶6 The Board's regulation review authority is discretionary. 5 U.S.C. § 1204(f)(1)(B) (providing that the Board grants a petition for regulation review "in its sole discretion."). See Clark v. Office of Personnel Management, 95 F.3d 1139, 1141 (Fed. Cir. 1996) (Congress explicitly authorized the Board to review directly any provision of any OPM rule or regulation and stated that the decision whether to grant such review was in the Board's "sole discretion"). To guide us in deciding whether to exercise our discretion, we consider among other things, the likelihood that the issue will be timely reached through ordinary channels of appeal, the availability of other equivalent remedies, the extent of the regulation's application, and the strength of the arguments against the validity of its implementation. McDiarmid v. U.S. Fish and Wildlife Service, 19 M.S.P.R. 347, 349 (1984). Upon careful consideration of these factors, we decline the petitioner's request to review 5 C.F.R. § 831.1207(c) and (d).

¶7 The issues raised by the petitioner could be timely reached through ordinary channels of appeal. Indeed, the petitioner already has availed herself of her right to appeal to the Board from unfavorable OPM decisions. The petitioner has previously appealed from an OPM reconsideration letter that dismissed her disability retirement application because her application was based on her Federal Air Marshal position. 0312 IAF, Tab 1. The administrative judge found that the petitioner was reassigned to the position of Law Enforcement Specialist as a reasonable accommodation. 0312 ID at 7. The administrative judge concluded that the petitioner was required to file her disability retirement application from the Law Enforcement Specialist position and that OPM was correct in rescinding its approval. Id. Subsequently, the petitioner filed a disability retirement application from her Law Enforcement Specialist position and, following an unfavorable disposition by OPM, she appealed OPM's determination regarding that application to the Board. See Redding v. Office of Personnel Management, MSPB No. DC-844E-22-0366-I-1, Initial Appeal File, Tab 1. Thus, the petitioner has demonstrated that she can appeal from OPM decisions regarding her disability retirement benefits. The same arguments that she raises here may be raised in the ordinary appeal process.

¶8 Second, through the appeal process, the petitioner may obtain equivalent remedies. As OPM notes, the petitioner was entitled to reapply for disability benefits from her final position of record. RF, Tab 4 at 11 (citing 5 U.S.C. §§ 8337(e), 8451(b)). In fact, subsequent to the filing of the instant request for regulation review, the petitioner reapplied for disability benefits from her Law Enforcement Specialist position. Although OPM denied her application, as noted above, she challenged that determination before the Board in MSPB No. DC-844E-22-0366-I-1. Additionally, to the extent that the petitioner believes that she was not offered a reasonable accommodation for her disability, she may have remedies through her employing agency's discrimination complaint process. See 29 C.F.R. §§ 1614.101-1614.110.

¶9 The third factor-the extent of the regulations' application-likely weighs in favor of review. OPM argues that 5 C.F.R. § 831.1207(c) and (d) have limited applicability because those provisions only apply to Federal employees who are covered under the Civil Service Retirement System. RF, Tab 4 at 11-12. OPM states that "the population of employees potentially affected by these regulations is extremely small." Id. at 12. The petitioner, however, appears to argue that section 831.1207(c) and (d), or at least the policies underlying those provisions, were applied to her even though she is covered under FERS. See RF, Tab 1 at 2. Without reaching the merits of her arguments, we find that the petitioner's allegations are broad enough to encompass the interests of applicants seeking disability retirement benefits under FERS.

¶10 Finally, we consider the strength or weakness of the petitioner's arguments as they relate to the validity of 5 C.F.R. § 831.1207(c) and (d). Taken as a whole, we agree with OPM that the petitioner is essentially arguing for a preferred approach to eligibility for disability retirement rather than arguing that the existing approach compels the commission of a PPP. For example, the petitioner suggests that "there should be a finite amount of time allowed to evaluate the efficacy of a reassignment before a disability retirement application is withdrawn." RF, Tab 1 at 3. She further proposes that if a reassignment is "deemed ineffective, unsuccessful, or poses a direct...

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