Case: 21-2080 Document: 21 Page: 1 Filed: 02/15/2022

NOTE: This disposition is nonprecedential.

United States Court of Appeals for the Federal Circuit ______________________

KISHMA L. FLEMING, Petitioner

v.

MERIT SYSTEMS PROTECTION BOARD, Respondent ______________________

2021-2080 ______________________

Petition for review of the Merit Systems Protection Board in No. AT-844E-21-0223-I-1. ______________________

Decided: February 15, 2022 ______________________

KISHMA L. FLEMING, Augusta, GA, pro se.

ELIZABETH WARD FLETCHER, Office of General Counsel, United States Merit Systems Protection Board, Washing- ton, DC, for respondent. Also represented by TRISTAN L. LEAVITT, KATHERINE MICHELLE SMITH. ______________________

Before HUGHES, MAYER, and STOLL, Circuit Judges. PER CURIAM. Case: 21-2080 Document: 21 Page: 2 Filed: 02/15/2022

2 FLEMING v. MSPB

After the Office of Personnel Management rescinded its final decision in Kishma Fleming’s case, the Merit Systems Protection Board determined that it lacked jurisdiction and dismissed Ms. Fleming’s appeal. Ms. Fleming appeals the Board’s dismissal. We affirm because without a final deci- sion to review, the Board lacks jurisdiction to continue with an appeal. Ms. Fleming may appeal to the Board again when the Office of Personnel Management issues a new fi- nal decision. BACKGROUND Ms. Fleming applied for disability retirement twice. This appeal arises from her second application. Ms. Fleming first applied for disability retirement in 2016. Appx15. 1 The Office of Personnel Management (OPM) issued a final decision denying her application. Appx14. Ms. Fleming appealed to the Merit Systems Pro- tection Board. In that appeal, number AT-844E-19-0309-I- 1, an administrative judge upheld OPM’s denial. Appx2 n.1. Ms. Fleming filed a petition for review by the full Board, which the full Board has not yet decided. Appx2 n.1; see Appx4 (explaining that the full Board is currently una- ble to issue decisions on petitions for review because it does not have enough members at this time). In 2020, Ms. Fleming filed a second application for dis- ability retirement. Appx23. On January 26, 2021, OPM is- sued a final decision denying Ms. Fleming’s second application, concluding: [T]he documentation submitted failed to establish a medical condition which exists continuously at a disabling severity. . . . [Y]our performance ap- praisal indicates a rating of “outstanding” and

1 Appx refers to the appendix submitted with Re- spondent’s brief. Case: 21-2080 Document: 21 Page: 3 Filed: 02/15/2022

FLEMING v. MSPB 3

stated you are fully successful or better regarding all critical elements of your position. There were no long-term restrictions or limitations imposed by your treating physicians which indicate you will be unable to attend the workplace or complete the du- ties of your job. [OPM] has concluded that as you do not meet all the criteria necessary, you are not entitled to disability retirement at this time. Appx25. Ms. Fleming appealed to the Board on February 10, 2021. Appx1 (appeal number AT-844E-21-0223-I-1). On June 8, 2021, OPM told the Board that it had re- scinded its decision on Ms. Fleming’s second application. As OPM explained, the filing of a second application for disability retirement may cause the first application to be- come moot. Appx30. OPM explained that it needs to deter- mine whether Ms. Fleming’s first application is moot in order to decide how to treat her second application. Appx30–31. If Ms. Fleming’s first application is not moot, OPM will treat her second application as an amended ver- sion of the first application, instead of as an entirely sepa- rate application. Appx30–31. OPM stated that once it makes a mootness determination, it will issue a new final decision on Ms. Fleming’s second application, which will give Ms. Fleming a new right to appeal. Appx2, 31. Having rescinded its final decision on Ms. Fleming’s second appli- cation, OPM filed a motion with the Board to dismiss Ms. Fleming’s appeal number AT-844E-21-0223-I-1, on her second application, for lack of jurisdiction. Appx30. On June 9, 2021, an administrative judge granted OPM’s motion. The administrative judge concluded that the Board lacked jurisdiction over the matter because OPM had rescinded its final decision. Appx2. The administrative judge therefore dismissed Ms. Fleming’s appeal on her sec- ond application. On June 11, 2021, Ms. Fleming appealed the adminis- trative judge’s initial decision to this Court. The Case: 21-2080 Document: 21 Page: 4 Filed: 02/15/2022

4 FLEMING v. MSPB

administrative judge’s initial decision became the Board’s final decision on July 14, 2021. Appx3. Thus, although Ms. Fleming’s appeal to the Federal Circuit was prema- ture, we can hear it because it has since ripened. We have jurisdiction pursuant to 5 U.S.C. § 7703(b)(1)(A) and 28 U.S.C. § 1295(a)(9), and our jurisdiction includes “inherent power to determine our own jurisdiction and that of the [B]oard.” Maddox v. MSPB, 759 F.2d 9, 10 (Fed. Cir. 1985). In sum, Ms. Fleming filed two appeals with the Board. OPM rescinded its final decision in the second one and stated that it would issue a new decision. The Board dis- missed the second appeal, and we now consider whether the Board was correct to dismiss that appeal. DISCUSSION The Board’s determination that it lacks jurisdiction is a legal conclusion that we review de novo. Bryant v. MSPB, 878 F.3d 1320, 1325 (Fed. Cir. 2017). The Board has jurisdiction over “an administrative ac- tion or order affecting the rights or interests of an individ- ual . . . under the [Federal Employees’ Retirement System as] administered by [OPM].” 5 U.S.C. § 8461(e)(1); see also Miller v. OPM, 449 F.3d 1374, 1377 (Fed. Cir. 2006). Spe- cifically, the Board has jurisdiction over final decisions of OPM under FERS. See 5 C.F.R. § 841.308 (“[A]n individual whose rights or interests under FERS are affected by a fi- nal decision of OPM may request MSPB to review the deci- sion . . . .”). OPM’s rescission of a final decision deprives the Board of jurisdiction over an appeal. Snyder v. OPM, 136 F.3d 1474, 1476 (Fed. Cir. 1998). In this case, OPM re- scinded its final decision on Ms. Fleming’s second petition, causing the Board to lose jurisdiction over her appeal. The Board has recognized a limited exception: it re- tains jurisdiction where “dismissal of the appeal could ef- fectively prevent an appellant from obtaining an adjudication of his claim,” such as where it appears that Case: 21-2080 Document: 21 Page: 5 Filed: 02/15/2022

FLEMING v. MSPB 5

OPM has no intention of issuing a reconsideration decision. McLaughlin v. OPM, 62 M.S.P.R. 536, 546–47 (1994). Here, the exception does not apply because OPM has adjudicated Ms. Fleming’s successive disability retirement applications and has stated that it intends to do so again. See Appx30– 31. OPM has stated that it intends to issue a new final de- cision. As the Board noted, if Ms. Fleming is dissatisfied with any new final decision OPM may issue regarding her disability retirement, she may appeal OPM’s final decision to the Board. See 5 U.S.C. § 8461(e)(1); 5 C.F.R. § 841.308. Ms. Fleming’s briefs argue that the Board failed to con- sider certain medical documentation and other facts in her case. Ms. Fleming can argue these issues before the Board after OPM issues its new decision. The Board was correct to dismiss the appeal because OPM had rescinded its orig- inal decision and indicated it would issue a new one. *** The Board’s dismissal of Ms. Fleming’s appeal number AT-844E-21-0223-I-1 for lack of jurisdiction is AFFIRMED COSTS Each party shall bear its own costs.