Jody George v. Office of Personnel Management

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JODY K. GEORGE,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.
DOCKET NUMBER
SF-0842-25-0225-I-1
DATE: October 15, 2026
THIS FINAL ORDER IS NONPRECEDENTIAL1
Jody K. George, Merced, California, pro se.
Michael Shipley, Paula Thompson, Eva Ukkola, Washington, D.C.,
for the agency.
BEFORE
James J. Woodruff II, Chairman
Henry J. Kerner, Vice Chairman
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
affirmed an Office of Personnel Management (OPM) final decision finding that
the appellant was eligible only for deferred retirement under the Civil Service
Retirement System and not for immediate retirement. On review, the appellant
argues that he is eligible for immediate retirement benefits, including credit for
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).

his unused sick leave.2 Generally, we grant petitions such as this one only in the
following circumstances: the initial decision contains erroneous findings of
material fact; the initial decision is based on an erroneous interpretation of statute
or regulation or the erroneous application of the law to the facts of the case; the
administrative judge’s rulings during either the course of the appeal or the initial
decision were not consistent with required procedures or involved an abuse of
discretion, and the resulting error affected the outcome of the case; or new and
material evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review. Except as expressly MODIFIED to
VACATE the administrative judge’s finding on discontinued service retirement
and to clarify that the Board lacks jurisdiction over that issue, we AFFIRM the
initial decision.
Although we find that none of the appellant’s arguments on review warrant
a different result, one of his arguments and a related finding by the administrative
judge does require addressing. On petition for review, the appellant realleges that
he was eligible for discontinued service retirement under 5 U.S.C. § 8336(d) and
that the administrative judge erred in finding otherwise. Petition for Review
2 The appellant also relies on evidence already in the record, including his
communications with OPM and submissions to the administrative judge. Petition for
Review (PFR) File, Tab 1 at 10, 12-16, 18-22, 26-29, 31, 35, 38-40, 42-49, 51, 54-58,
60-75. Evidence that is already part of the record is not new. Meier v. Department of
the Interior, 3 M.S.P.R. 247, 256 (1980). In addition, the appellant submits for the first
time on review an October 15, 2025 annuity statement and a shipping receipt for his
petition for review. PFR File, Tab 1 at 24, 77. Because he has not shown that this
evidence is new and material evidence not previously available despite his due
diligence, we need not consider it. See Banks v. Department of the Air Force,
4 M.S.P.R. 268, 271 (1980). In any event, these documents are offered only to support
his asserted eligibility for retirement benefits and the timeliness of his petition—both of
which are not at issue here. PFR File, Tab 1 at 23, 76.
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(PFR) File, Tab 1 at 32, Tab 5 at 3-4; Initial Appeal File (IAF), Tab 12 at 3-4,
Tab 16, Initial Decision at 5. He also requests again that OPM correct his
survivor benefits election. PFR File, Tab 1 at 7. Generally, the Board has
jurisdiction over retirement issues only after OPM issues a final or
reconsideration decision. Johnson v. Office of Personnel Management,
113 M.S.P.R. 118, ¶ 10 (2010). The Board may take jurisdiction absent a
reconsideration decision only where the appellant has made repeated requests for
such a decision, and the evidence indicates that OPM does not intend to issue a
reconsideration decision. Id. The scope of an appeal to the Board is limited to
the claims of entitlement to retirement benefits adjudicated by OPM. Id., ¶ 14.
The record reflects that the final decision at issue addresses only whether
the appellant qualified for immediate retirement and whether his sick leave could
be credited. IAF, Tab 13 at 7-11, 31, 33-34; IAF, Tab 14, Hearing Recording
(HR) at 34:41-36:02 (closing argument of OPM representative). The appellant
has not shown that OPM issued a final or reconsideration decision on a
discontinued service retirement or a survivor benefit claim, that he repeatedly
sought such a decision, or that OPM declined to act. To the contrary, OPM
advised at the hearing that it could forward the survivor benefits election issue to
the proper department so a decision could be made. HR at 35:54-36:09. Thus,
the Board lacks jurisdiction over the appellant’s discontinued service retirement
and survivor benefits claims. See Johnson, 113 M.S.P.R. 118, ¶ 14. Accordingly,
we vacate the administrative judge’s finding on discontinued service retirement
and clarify that the Board lacks jurisdiction over that issue as well as his survivor
benefits claim.
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NOTICE OF APPEAL RIGHTS3
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain
review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general. As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision.
5 U.S.C. § 7703(b)(1)(A).
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
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If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the following
address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination. This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision—including a disposition of your discrimination
claims—by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board, 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
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race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See
42 U.S.C § 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues. 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012. This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
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other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of competent jurisdiction.4 The court of appeals must receive your
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the following
address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510.
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Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.
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