Opinion

Oksana Klebs v. Office of Personnel Management

Court: Merit Systems Protection Board
Filed: Jun 25, 2024
Status: Unpublished
Cited by: 0 cases

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

OKSANA KLEBS, DOCKET NUMBER

Appellant, DC-0845-19-0285-I-1

OFFICE OF PERSONNEL DATE: June 25, 2024

MANAGEMENT,

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Oksana Klebs , North Potomac, Maryland, pro se.

Michael Shipley , Washington, D.C., for the agency.

BEFORE

Cathy A. Harris, Chairman

Raymond A. Limon, Vice Chairman

Henry J. Kerner, Member*

*Member Kerner did not participate in the adjudication of this appeal.

FINAL ORDER

The appellant has filed a petition for review of the initial decision, which

dismissed for lack of jurisdiction her appeal of a reconsideration decision by the

Office of Personnel Management (OPM) because OPM indicated that it had

rescinded its reconsideration decision. Generally, we grant petitions such as this

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).

one only in the following circumstances: the initial decision contains 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).

BACKGROUND

The appellant filed this appeal challenging the January 28, 2019 OPM

reconsideration decision, in which OPM determined that the appellant had been

overpaid $8,090.80 in Federal Employees Retirement System survivor annuity

benefits. Initial Appeal File (IAF), Tab 1, Tab 7 at 10-11. While this appeal was

pending before the administrative judge, OPM indicated that it was rescinding its

reconsideration decision, and it therefore moved to dismiss the appeal for lack of

jurisdiction. IAF, Tab 9 at 4. On April 9, 2019, the administrative judge granted

OPM’s motion and dismissed the appeal for lack of jurisdiction. IAF, Tab 11,

Initial Decision at 1-2.

On petition for review, the appellant asserts that she received a Notice of

Annuity Adjustment from OPM, which stated that, starting on May 1, 2019, OPM

began withdrawing money from her survivor annuity. Petition for Review (PFR)

File, Tab 1 at 1. The appellant includes on review, among other things, the OPM

notice which indicated that an additional $264.80 was being withheld from her

monthly annuity payment “because [OPM] paid [her] too much annuity.” Id. at 6.

In its response, OPM stated that it prematurely commenced collection of

the overpayment with the appellant’s May 1, 2019 survivor annuity payment.

PFR File, Tab 4 at 4. OPM added that it completed action to cease the collection,

and it had authorized a refund of $264.80. Id. OPM provided no evidence in

support of its assertions. Although the appellant was informed that she had the

opportunity to reply to OPM’s response, PFR File, Tab 2 at 1, she did not do so.

On July 2, 2019, the Office of the Clerk of the Board ordered OPM to file

additional evidence and argument establishing that it had restored the appellant to

the status quo ante, and it provided the appellant the opportunity to reply to

OPM’s response. PFR File, Tab 5. In its response, OPM states that it had

refunded the appellant $264.80, and OPM includes a May 10, 2019 payment

history screen printout documenting the refund and documentation identifying the

appellant’s financial institution. PFR File, Tab 6 at 4-7. The appellant did not

file a reply to OPM’s response.

DISCUSSION OF ARGUMENTS ON REVIEW

When OPM completely rescinds a reconsideration decision, the rescission

divests the Board of jurisdiction over the appeal in which the reconsideration

decision has been issued, and the appeal must be dismissed. Martin v. Office of

Personnel Management, 119 M.S.P.R. 188, ¶ 8 (2013). However, if OPM does

not restore the appellant to the status quo ante, the reconsideration decision has

not been rescinded, and the appeal remains within the Board’s jurisdiction. Id.,

¶ 10. To rescind an overpayment decision, OPM must, among other things,

refund any money that it already collected from the appellant to recoup the

alleged overpayment. Campbell v. Office of Personnel Management,

123 M.S.P.R. 240, ¶ 8 (2016).

Here, the record reflects on review that OPM began withholding money

from the appellant’s survivor annuity benefits based on a reconsideration decision

that it rescinded below. PFR File, Tab 1 at 1, 6; IAF, Tab 9 at 4. As noted

above, OPM has since provided unrebutted evidence and argument reflecting that

its collection efforts have ceased and the appellant has been refunded all the

money that was wrongly withheld from her survivor annuity benefits. PFR File,

Tabs 4, 6. Accordingly, we find that the undisputed record reflects that OPM has

fully restored the appellant to the status quo ante and rescinded the

reconsideration decision upon which this appeal is based. The appeal must

therefore be dismissed for lack of jurisdiction. Rorick v. Office of Personnel

Management, 109 M.S.P.R. 597, ¶ 5 (2008).

However, OPM’s rescission of its January 28, 2019 reconsideration

decision does not render moot the existence or amount of the alleged

overpayment or the appellant’s possible entitlement to a waiver. Id., ¶ 6. We

therefore dismiss the appeal without prejudice to the appellant filing a new appeal

with the appropriate regional office concerning any future reconsideration

decision by OPM on the same matter. Id., ¶ 7. Any future appeal must be filed

within the time limits set forth in the Board’s regulations. 5 C.F.R. § 1201.22.

NOTICE OF APPEAL RIGHTS 2

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

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.

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.

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

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. 420 (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:

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. 3 The court of appeals must receive your petition for

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.

review within 60 days of the date of issuance of this decision. 5 U.S.C.

§ 7703(b)(1)(B).

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