Case: 19-1986   Document: 30     Page: 1   Filed: 03/11/2020




        NOTE: This disposition is nonprecedential.


   United States Court of Appeals
       for the Federal Circuit
                 ______________________

                TERRY A. COCHRAN,
                    Petitioner

                            v.

      MERIT SYSTEMS PROTECTION BOARD,
                    Respondent
              ______________________

                       2019-1986
                 ______________________

    Petition for review of the Merit Systems Protection
 Board in No. PH-0841-19-0023-I-1.
                 ______________________

                Decided: March 11, 2020
                ______________________

    TERRY A. COCHRAN, Odenton, MD, pro se.

      SARA B. REARDEN, Office of General Counsel, United
 States Merit Systems Protection Board, Washington, DC,
 for respondent. Also represented by KATHERINE MICHELLE
 SMITH, TRISTAN LEAVITT.
                  ______________________

   Before MOORE, REYNA, and TARANTO, Circuit Judges.
 PER CURIAM.
Case: 19-1986    Document: 30      Page: 2    Filed: 03/11/2020




 2                                           COCHRAN   v. MSPB



     Terry Cochran appeals a decision of the Merit Systems
 Protection Board dismissing her appeal for lack of jurisdic-
 tion. Because the Board correctly determined that it
 lacked jurisdiction over Ms. Cochran’s appeal, we affirm.
                        BACKGROUND
      Ms. Cochran filed a Federal Employees Retirement
 System application with the Office of Personnel Manage-
 ment (OPM) seeking disability retirement benefits. In a
 letter dated April 6, 2018, OPM approved Ms. Cochran’s
 application. S.A. 72–75. Ms. Cochran requested reconsid-
 eration of OPM’s decision, challenging its calculation of her
 annuity. In October 2018, before OPM had rendered a de-
 cision on the request for reconsideration, Ms. Cochran ap-
 pealed OPM’s initial decision to the Board. S.A. 66–80.
 OPM moved to dismiss the appeal for lack of jurisdiction.
 S.A. 53–56. The administrative judge granted OPM’s mo-
 tion on March 1, 2019, holding that the Board lacked juris-
 diction over Ms. Cochran’s appeal because OPM had not
 rendered a final appealable decision. J.A. 1–10. The ad-
 ministrative judge determined that the six months Ms.
 Cochran’s reconsideration request was pending does not
 constitute inordinate delay. J.A. 2. Because neither party
 petitioned the full Board for review, the administrative
 judge’s decision became the final decision of the Board on
 April 5, 2019. Ms. Cochran timely appeals. We have juris-
 diction pursuant to 28 U.S.C. § 1295(a)(9).
                         DISCUSSION
     We will uphold a Board decision unless it is (1) arbi-
 trary, capricious, an abuse of discretion, or otherwise not
 in accordance with the law; (2) obtained without proce-
 dures required by law, rule, or regulation having been fol-
 lowed; or (3) unsupported by substantial evidence. 5 U.S.C.
 § 7703(c). We review the Board’s dismissal for lack of ju-
 risdiction de novo. Johnson v. Merit Sys. Prot. Bd., 518
 F.3d 905, 909 (Fed. Cir. 2008). The Board’s jurisdiction is
 limited to those actions made appealable to it by law, rule,
Case: 19-1986        Document: 30   Page: 3   Filed: 03/11/2020




 COCHRAN   v. MSPB                                          3



 or regulation. See 5 U.S.C. § 7701(a). The Board has ju-
 risdiction over appeals from final decisions of OPM affect-
 ing the rights or interests of an individual. 5 C.F.R.
 § 831.110; 5 U.S.C. § 8347(d)(1). OPM decisions are final
 when they are rendered on reconsideration or are expressly
 issued as final decisions with a right to appeal. 5 C.F.R.
 § 831.109. An exception to the final decision requirement
 exists where OPM refuses or improperly fails to render a
 final decision. See Okello v. Office of Pers. Mgmt., 120
 M.S.P.R. 498, 502–504 (2014).

     Ms. Cochran does not dispute that OPM had not ren-
 dered a decision on reconsideration at the time of her ap-
 peal, or that OPM has not rendered a final decision
 expressly providing a right to appeal. And there is no evi-
 dence that OPM has refused to issue a final decision. Ms.
 Cochran contended below that the Board should review
 OPM’s initial decision because OPM delayed in processing
 her reconsideration request. We agree with the govern-
 ment that under the circumstances of this case, the fact
 that OPM had not ruled on Ms. Cochran’s reconsideration
 request did not amount to unreasonable delay. Unlike
 Okello, OPM made no false promises regarding the timing
 for the final decision. Under the totality of the circum-
 stances, we see no basis upon which to disagree with the
 administrative judge’s dismissal for lack of jurisdiction. At
 least as of the filing of Ms. Cochran’s appeal to the Board,
 six months after her request for reconsideration, OPM’s
 failure to act was not unreasonable.
     Ms. Cochran contends that the Board nonetheless has
 jurisdiction over her appeal because she purportedly al-
 leged a mixed case claim of constructive discharge. She ar-
 gues she put the Board on notice of an equal employment
 opportunity (EEO) complaint she filed against her supervi-
 sor and therefore provided non-frivolous allegations of con-
 structive discharge. Ms. Cochran’s passing reference to an
Case: 19-1986    Document: 30      Page: 4   Filed: 03/11/2020




 4                                           COCHRAN   v. MSPB



 EEO complaint she filed against her supervisor, however,
 is insufficient to render her annuity case a mixed case. See
 Perry v. Merit Sys. Prot. Bd., 137 S. Ct. 1975 (2017). Her
 appeal contained no allegation that she had been construc-
 tively discharged, nor did she allege discrimination or re-
 taliation. S.A. 11–13. Her reference to the EEO complaint
 appeared in the context of alleged errors in OPM’s annuity
 calculations, supporting her belief that the employment
 record submitted by her agency did not accurately reflect
 her performance. S.A. 12–13. Ms. Cochran’s appeal to the
 Board is therefore not a mixed case, but rather is limited
 to challenging the accuracy of OPM’s annuity calculation.
 Accordingly, in the absence of a final appealable decision,
 we agree the Board lacks jurisdiction over Ms. Cochran’s
 appeal.
                        CONCLUSION
     Because the Board lacks jurisdiction, we affirm.
                        AFFIRMED
                           COSTS
     No costs.
