A.M. and Department of Veterans Affairs, Audie L. Murphy Memorial Veterans Hospital, San Antonio, TX (Board decision, September 20, 2021)

ECAB final decision. The Board dismissed the new appeal and the petition for reconsideration for lack of jurisdiction. A party may petition the Board for reconsideration within 30 days of issuance unless this decision specifies another period, under 20 C.F.R. § 501.7(a). FECA compensation decisions are generally not subject to court review under 5 U.S.C. § 8128(b).

Plain-English summary

A.M. sought Board review of two purported OWCP decisions, but the record contained no final adverse OWCP decision within the appeal period. The Board therefore dismissed Docket No. 21-0320. It also dismissed her attempted reconsideration of its October 2020 order in Docket No. 20-1405 because that order had become final and the rules did not permit reconsideration of the denial of a reconsideration petition.

Decision snapshot

• Authority: Appeal timing, 20 C.F.R. § 501.3(e); Board reconsideration, 20 C.F.R. § 501.7(a).
• Outcome: Appeal in 21-0320 dismissed; reconsideration petition in 20-1405 dismissed for lack of jurisdiction.
• Key point: The Board needed a timely final adverse OWCP decision to hear a new appeal.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
A.M., Appellant
)
)
and ) Docket No. 21-0320&20-1405
) Issued: September 20, 2021
DEPARTMENT OF VETERANS AFFAIRS,
)
AUDIE L. MURPHY MEMORIAL VETERANS
)
HOSPITAL, San Antonio, TX, Employer
)
__________ )

Appearances: Case Submitted on the Record
Appellant, pro se
Office of Solicitor, for the Director

ORDER DISMISSING APPEAL IN DOCKET NO. 21-0320 AND DISMISSING PETTION FOR RECONSIDERATION
IN DOCKET NO. 20-1405

Before:
ALEC J. KOROMILAS, Chief Judge
JANICE B. ASKIN, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

On January 3, 2021 appellant sought an appeal from two purported decisions of the Office of Workers’ Compensation Programs (OWCP). The Clerk of the Appellate Boards assigned Docket No. 21-0320.

The Board, having duly considered the matter, notes that its jurisdiction is limited to the review of final adverse OWCP decisions issued under the Federal Employees’ Compensation Act. 1 The case record as transmitted to the Board does not contain a final adverse decision of OWCP issued within 180 days from the date of docketing of the current appeal. 2 The most recent OWCP decision is dated October 27, 2017. By a January 23, 2020 decision in Docket No. 18-0562, the Board affirmed the October 27, 2017 OWCP decision, finding that appellant did not meet her burden of proof to establish that her condition was causally related to the accepted factors of her

1
5 U.S.C. § 8149; 20 C.F.R. §§ 50l.2(c) and 50l.3(a).
2
20 C.F.R. § 50l.3(e) provides in pertinent part: “Any notice of appeal must be filed within 180 days from the date of issuance of a decision of the OWCP.” federal employment. 3 As there is no final adverse decision issued by OWCP over which the Board may properly exercise jurisdiction, the Board concludes that the appeal docketed as No. 21-0320 must be dismissed. Regarding whether appellant’s January 3, 2021 appeal may be construed as a petition for reconsideration of the Board’s October 16, 2020 order dismissing appeal in Docket No. 20-1405 and order dismissing petition for reconsideration in Docket No. 18-0562,4 the Board concludes that it must be dismissed for lack of jurisdiction. Section 501.7(a) of the Board’s Rules of Procedure 5 provides that, “The Appellant or the Director [of OWCP] may file a petition for reconsideration of a decision or order issued by the Board within 30 days of the date of issuance….” The Board notes that its October 16, 2020 decision became final upon the expiration of 30 days from the date thereof.6 The Board’s October 16, 2020 order also dismissed appellant’s petition for reconsideration in Docket No. 18-0562 as not filed within 30 days of the Board’s January 23, 2020 decision. As there is no provision in the Board’s Rules of Procedure 7 for filing a petition for reconsideration of the denial of a petition for reconsideration, the Board concludes that it lacks jurisdiction to either grant or deny appellant’s petition for reconsideration. 8 Accordingly,

3
Docket No. 18-0562 (issued January 23, 2020).
4
Docket Nos. 20-1405 & 18-0562 (issued October 16, 2020).
5
20 C.F.R. § 501.7(a).
6
Id. at § 501.6(d).
7
Id. at § 501 et seq.
8
See John A. Johnson, 44 ECAB 602 (1993) (wherein the Board dismissed appellant’s petition for reconsideration of a denial of a petition for reconsideration, finding no basis to file a second petition for reconsideration, pursuant to 20 C.F.R. § 501.7(a)).

2
 IT IS HEREBY ORDERED THAT the appeal docketed as No. 21-0320 is dismissed.

IT IS FURTHER ORDERED THAT the petition for reconsideration in Docket No. 20- 1405 is dismissed for lack of jurisdiction.

Issued: September 20, 2021
Washington, DC

Alec J. Koromilas, Chief Judge
Employees’ Compensation Appeals Board

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge Employees’ Compensation Appeals Board

3