UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
YVETTE C. SQUARE, DOCKET NUMBER
Appellant, SF-0845-16-0253-I-1
v.
OFFICE OF PERSONNEL DATE: September 12, 2016
MANAGEMENT,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL *
Yvette C. Square, Compton, California, pro se.
Kristopher L. Rogers, Washington, D.C., for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Mark A. Robbins, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed her appeal for lack of jurisdiction. Generally, we grant petitions such
as this one only when: the initial decision contains erroneous findings of material
fact; the initial decision is based on an erroneous interpretation of statute or
*
A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).
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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. See 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 and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
BACKGROUND
¶2 By notice dated April 23, 2014, the Office of Personnel Management
(OPM) informed the appellant that, according to its calculations, she had been
overpaid $33,798.00 in annuity benefits. Initial Appeal File (IAF), Tab 8 at
25-27. OPM advised the appellant that May 23, 2014, was the deadline for
requesting reconsideration of its initial decision. Id. The appellant submitted a
request for reconsideration on October 17, 2015, and, on December 30, 2015,
OPM issued a final decision dismissing her request as untimely filed. Id. at 9-10,
12-23.
¶3 The appellant filed a timely appeal with the Board. IAF, Tab 1. Shortly
thereafter, OPM moved to dismiss the appeal, stating that it had rescinded its
December 30, 2015 decision. IAF, Tab 8. OPM stated that, upon the Board’s
dismissal of the appeal, it would review the case file and issue a new
reconsideration decision, including detailed explanations of its annuity and
overpayment calculations. Id. at 4. Subsequently, the administrative judge issued
an initial decision that dismissed the appeal for lack of jurisdiction. IAF, Tab 10,
Initial Decision.
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¶4 This petition for review followed. Petition for Review (PFR) File, Tab 1.
The agency has filed a response, arguing in general terms that the appellant’s
petition does not meet the criteria for review. PFR File, Tab 4.
ANALYSIS
¶5 When an appeal has been filed from an OPM reconsideration decision
dismissing a request for reconsideration as untimely, the Board retains
jurisdiction over the appeal regarding the timeliness determination, and
jurisdiction does not attach over the merits of the appeal unless the Board first
finds that the timeliness determination was unreasonable. Rossini v. Office of
Personnel Management, 101 M.S.P.R. 289, ¶ 7 (2006); Baldos v. Office of
Personnel Management, 36 M.S.P.R. 606, 608–09 (1988). When OPM rescinds a
reconsideration decision, the rescission divests the Board of jurisdiction over the
appeal in which the reconsideration decision is at issue, and the appeal must be
dismissed. Martin v. Office of Personnel Management, 119 M.S.P.R. 188, ¶ 8
(2013). Although it does not appear that OPM has restored the appellant to the
status quo ante by returning the portion of the overpayment it already has
collected from her, it has nonetheless rescinded the December 30, 2015 decision
insofar as that decision dismissed her request for reconsideration on timeliness
grounds. Cf. id., ¶ 10 (finding that OPM did not completely rescind the
reconsideration decision which affirmed on the merits its initial decision finding
an overpayment, because OPM had not restored the appellant to the status quo
ante by returning the portion of the alleged overpayment it already had collected).
The Board therefore lacks jurisdiction over this appeal.
¶6 We note, however, that OPM’s rescinding its December 30, 2015 decision
does not render moot the existence or amount of the alleged overpayment or the
appellant’s possible entitlement to a waiver. We therefore dismiss the appeal
without prejudice to the appellant’s filing a new appeal concerning any future
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reconsideration decision by OPM on the same matter. See Parker v. Office of
Personnel Management, 74 M.S.P.R. 131, 133 (1997).
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
You have the right to request review of this final decision by the U.S.
Court of Appeals for the Federal Circuit. You must submit your request to the
court at the following address:
United States Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, DC 20439
The court must receive your request for review no later than 60 calendar days
after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec. 27,
2012). If you choose to file, be very careful to file on time. The court has held
that normally it does not have the authority to waive this statutory deadline and
that filings that do not comply with the deadline must be dismissed. See Pinat v.
Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).
If you need further information about your right to appeal this decision to
court, you should refer to the Federal law that gives you this right. It is found in
title 5 of the United States Code, section 7703 (5 U.S.C. § 7703) (as rev. eff.
Dec. 27, 2012). You may read this law as well as other sections of the U.S.
Code, at our website, http://www.mspb.gov/appeals/uscode.htm. Additional
information 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, 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
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Merit Systems Protection Board neither endorses the services provided by any
attorney nor warrants that any attorney will accept representation in a given case.
FOR THE BOARD: ______________________________
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.