UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
MICHAEL R. GEORGE, DOCKET NUMBER
Appellant, NY-0845-16-0293-I-1
v.
OFFICE OF PERSONNEL DATE: July 7, 2022
MANAGEMENT,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Michael R. George, Elmira, New York, pro se.
Karla W. Yeakle, Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed his appeal of a reconsideration decision of the Office of Personnel
Management (OPM) for lack of jurisdiction. Generally, we grant petitions such
as this one only in the following circumstances: the initial decision contains
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).
2
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 and AFFIRM the initial
decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
¶2 OPM approved the appellant’s disability retirement application under the
Federal Employees’ Retirement System (FERS), effective October 2000. Initial
Appeal File (IAF), Tab 1 at 12. Years later, OPM determined that his annuity
should have been reduced due to an award of Social Security disability benefits.
Id. As a result, OPM also determined that the appellant was o verpaid $61,289
between April 2001, and November 2014. Id. The appellant requested
reconsideration of OPM’s decision in December 2014. Id. In a July 2016
reconsideration decision, OPM affirmed its initial decision. Id. at 12-13, 16-17.
¶3 The appellant filed the instant appeal, challenging OPM’s reconsideration
decision. Id. at 1-8. In September 2016, OPM filed a motion to dismiss on the
basis that it had rescinded that decision. IAF, Tab 7 at 4. OPM explained that it
would issue a new reconsideration decision after the instant appeal was dismissed
and final. Id. After holding a status conference with the appellant, the
administrative judge issued an initial decision, dismissing the appeal for lack of
jurisdiction. IAF, Tab 9, Initial Decision (ID). The appellant has filed a petition
for review. Petition for Review (PFR) File, Tab 1. OPM has filed a response.
PFR File, Tab 5.
3
¶4 If OPM completely rescinds its final decision, the Board no longer has
jurisdiction over the appeal in which that decision is at issue. Campbell v. Office
of Personnel Management, 123 M.S.P.R. 240, ¶ 7 (2016). A complete rescission
requires OPM to return the individual to the status quo ante. Id. Thus, to rescind
a final overpayment decision such as the one at issue in the instant appeal, OPM
must refund any money that it already collected from the appellant to recoup the
alleged overpayment. Id., ¶ 8.
¶5 On review, the appellant suggests that OPM did not return money
previously withheld, which calls into question whether OPM completely
rescinded its reconsideration decision and divested the Board of jurisdiction over
this appeal. PFR File, Tab 1 at 1. Because the record did not contain any
evidence on this matter, we issued an order directing OPM to present argument
and evidence of any payments withheld and returned to the appellant pursuant to
its prior reconsideration decision. PFR File, Tab 6. OPM responded, showing
that it withheld a total of $300 between October 2016, and January 2017, but
returned the same amount in February 2017. PFR File, Tab 7 at 4, 6. We note
those dates because it is now apparent that OPM sought and received a dismissa l
of the instant appeal on the basis of complete rescission, then began withholding
money from the appellant as if rescission did not occur, then returned that money
while the appellant’s petition for review was pending.
¶6 Although OPM has not explained what appear to be untimely or otherwise
improper withholdings, the record suggests that OPM has now returned the
appellant to the status quo ante. We provided the appellant an opportunity to
present argument or evidence to the contrary, but he has not done so . PFR File,
Tab 6 at 3. Accordingly, we find that the Board lacks jurisdiction over this
appeal because OPM has completely rescinded its July 2016 reconsideration
4
decision. 2 Campbell, 123 M.S.P.R. 240, ¶¶ 7-8. Once OPM issues a new
reconsideration decision concerning his FERS disability annuity, the appellant
may file a new appeal with the Board if he is still dissatisfied. See 5 U.S.C.
§ 8461(e)(1); 5 C.F.R. § 841.308.
NOTICE OF APPEAL RIGHTS 3
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.
2
In his petition, the appellant suggests that he did not agree to dismissal of his appeal,
despite the administrative judge’s representations to the contrary. PFR File, Tab 1 at 1;
ID at 2. However, the prehearing conference recording demonstrates that the appellant
expressed no objection to OPM’s motion to dismiss. IAF, Tab 8, Prehearing
Conference Compact Disc. More importantly, the Board’s jurisdictional limitations are
controlling, even if the appellant preferred that his appeal not be dismissed. See
Schmittling v. Department of the Army, 219 F.3d 1332, 1337 (Fed. Cir. 2000)
(recognizing that, without jurisdiction, the Board lacks the authority to decide the
merits of a case); see also Martin v. Office of Personnel Management, 119 M.S.P.R.
188, ¶ 8 (2013) (recognizing that an agency’s unilateral modification of its action after
an appeal has been filed cannot divest the Board of jurisdiction unless the appellant
consents to such divestiture or unless the agency completely rescinds the action being
appealed).
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.
5
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).
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
6
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. ____ , 137 S. Ct. 1975 (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 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:
7
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
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).
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.
8
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
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: /s/ for
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.