                      NOTE: This disposition is nonprecedential.

 United States Court of Appeals for the Federal Circuit
                                       2009-3266


                                   ELOISE K. HAHN,

                                                     Petitioner,

                                            v.

                     ENVIRONMENTAL PROTECTION AGENCY,

                                                     Respondent.


      Eloise K. Hahn, of Berwyn, Illinois, pro se.

       Joseph A. Pixley, Trial Attorney, Commercial Litigation Branch, Civil Division,
United States Department of Justice, of Washington, DC, for respondent. With him on
the brief were Tony West, Assistant Attorney General, Jeanne E. Davidson, Director,
and Harold D. Lester, Jr., Assistant Director.

Appealed from: Merit Systems Protection Board
                      NOTE: This disposition is nonprecedential.


 United States Court of Appeals for the Federal Circuit

                                     2009-3266


                                 ELOISE K. HAHN,

                                                           Petitioner,

                                          v.

                     ENVIRONMENTAL PROTECTION AGENCY,

                                                           Respondent.


   Petition for review of the Merit Systems Protection Board in CH0752080671-C-1.

                            _________________________

                            DECIDED: January 8, 2010
                            _________________________


Before LOURIE, SCHALL, and BRYSON, Circuit Judges.

PER CURIAM.

                                     DECISION

      Eloise K. Hahn petitions for review of the final decision of the Merit Systems

Protection Board (“Board”) that denied her petition for enforcement.        Hahn v.

Environmental Protection Agency, No. CH-0752-08-0671-C-1 (M.S.P.B. July 21, 2009)

(“Final Decision”). We affirm.

                                    DISCUSSION

                                          I.

      After Ms. Hahn was removed from her position with the Environmental Protection

Agency (“agency”), she appealed to the Board. In due course, the agency and Ms.
Hahn, who was represented by counsel, entered into a written agreement to resolve the

appeal. The settlement agreement provided that Ms. Hahn would be permitted to resign

in lieu of being removed. In addition, Ms. Hahn agreed to dismiss her appeal with

prejudice. At the same time, the agency agreed to pay Ms. Hahn $18,000 within 60

days of receiving her notice of dismissal of her appeal. The agreement further provided

that a new SF-50 would be issued that would not make mention of the reasons for the

removal action. The Board retained jurisdiction for the limited purpose of enforcing the

agreement.

      On April 7, 2009, Ms. Hahn filed a petition for enforcement of the settlement

agreement. In her petition, Ms. Hahn claimed that the agency had failed to pay her

$18,000, as required under the agreement. At a status conference on May 5, 2009,

however, the parties stipulated that Ms. Hahn had received $18,000 from the agency

and that the agency had fully complied with the agreement.            Accordingly, the

administrative judge (“AJ”) to whom the enforcement matter was assigned found the

agency in compliance with the settlement agreement and denied the petition for

enforcement. Hahn v. Environmental Protection Agency, No. CH-0752-08-0671-C-1

(M.S.P.B. May 18, 2009) (“Initial Decision”).   The Initial Decision became the final

decision of the Board on July 21, 2009, after the Board denied Ms. Hahn’s petition for

review for failure to meet the criteria for review set forth at 5 C.F.R. § 1201.115(d).

Final Decision.   This appeal followed.   We have jurisdiction pursuant to 28 U.S.C.

§ 1295(a)(9).




2009-3266                                  2
                                         II.

      Our scope of review in an appeal from a decision of the Board is limited.

Specifically, we must affirm the Board’s decision unless we find it to be (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); Kewley v. Dep’t of Health &

Human Servs., 153 F.3d 1357, 1361 (Fed. Cir. 1998).

      On appeal, Ms. Hahn does not challenge the Board’s findings that the agency

paid her $18,000, as required by the settlement agreement, and that the agency was in

compliance with the agreement. Those findings thus stand. Rather, she raises two

additional issues. First, she seeks to make a lump sum payment back to the Federal

Employees Retirement System (“FERS”) to restore her accrued service. In that regard,

she states that the Board “was notified of the Office of Personnel Management’s denial

of Petitioner’s claim to pay back FERS retirement fund to resecure [sic] her service on

May 5, 2009.” Second, she seeks to have her SF-50 discharge papers revised (i) to

reflect that the agency separated her pursuant to a reduction in force and (ii) to include

Career Transition Program (“CTAP”) rights.

      Neither of these contentions helps Ms. Hahn. Starting with the FERS issue, it

appears that Ms. Hahn first raised this matter during the May 5, 2009 status conference

before the AJ. The AJ noted in her summary of the status conference that the Office of

Personnel Management (“OPM”) had issued an initial decision on the FERS issue, and

she explained to Ms. Hahn that “the Board generally lacks jurisdiction over a retirement

concern until after OPM has issued a reconsideration or final decision adjudicating the




2009-3266                                      3
matter.” The AJ further stated that she “encouraged [Ms. Hahn] to file a Board appeal if

she receiv[ed] a reconsideration decision she believ[ed] to be erroneous.” SUMMARY

OF STATUS CONFERENCE at 1. The AJ’s statement that the Board lacked jurisdiction

until OPM issued a reconsideration decision was correct. See 5 C.F.R. § 841.308 (“an

individual whose rights or interests under FERS are affected by a final decision of OPM

may request MSPB to review the decision.”); Sanders v. Office of Pers. Mgmt., 93

M.S.P.R. 684, 687 (2003) (“the Board has no jurisdiction over a retirement matter until

after OPM has issued a final or reconsideration decision adjudicating that matter”);

Gillian v. Office of Pers. Mgmt., 91 M.S.P.R. 352, 361 (2002). To what the AJ said, we

will simply add that if Ms. Hahn receives an unfavorable decision from the Board on her

appeal of an OPM reconsideration decision on her FERS claim, she will be free to

petition this court for review.

       Turning to the SF-50 issue, in its final decision, the Board noted that Ms. Hahn

had not raised this matter in her petition for enforcement and that the AJ had not

addressed it in the Initial Decision. Declining to address the issue, the Board stated: “If

the appellant raises this argument in her petition for review because she believes the

agency has failed to comply with the settlement agreement, she may file a new petition

for enforcement with the Central Region.” Final Decision at 2. The Board did not err in

not considering this issue. See Carson v. Department of Energy, 398 F.3d 1369, 1376

(Fed. Cir. 2005). Moreover, because Ms. Hahn raised this issue for the first time in her

petition for review to the Board, this court will not consider it either. See Bosley v. Merit

Systems Protection Board, 162 F.3d 665, 668 (Fed. Cir. 1998). In any event, as noted,

the Board informed Ms. Hahn that if she believed that the SF-50 issue involved an




2009-3266                                    4
instance of the agency’s failure to comply with the settlement agreement, she could

lodge a petition for enforcement with the Board. Thereafter, if she chose to do so, she

could petition for review of any unfavorable Board decision.

      In sum, on appeal, Ms. Hahn has not challenged the final decision of the Board

on the one matter that she raised in her petition for enforcement. Rather, she has

sought to bring before us matters that the Board properly declined to consider and that

we will not consider. As has been explained, however, Ms. Hahn has the option of

pursuing these matters if she chooses to do so. The final decision of the Board is

affirmed.




2009-3266                                   5
