Opinion

Barbara Blackmon v. Office of Personnel Management

Court: Merit Systems Protection Board
Filed: Sep 11, 2024
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 30.6%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

BARBARA J. BLACKMON, DOCKET NUMBER

Appellant, CH-0845-20-0028-I-3

OFFICE OF PERSONNEL DATE: September 11, 2024

MANAGEMENT,

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Barbara J. Blackmon , Chicago, Illinois, pro se.

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

BEFORE

Cathy A. Harris, Chairman

Raymond A. Limon, Vice Chairman

Henry J. Kerner, Member

FINAL ORDER

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

dismissed this appeal as moot. For the reasons discussed below, we GRANT the

appellant’s petition for review and AFFIRM the initial decision AS MODIFIED

to DISMISS the appeal for lack of jurisdiction.

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

If the Office of Personnel Management (OPM) completely rescinds a

reconsideration decision, its rescission divests the Board of jurisdiction over the

appeal in which that decision is at issue, and the appeal must be dismissed.

Moore v. Office of Personnel Management, 114 M.S.P.R. 549, ¶ 4 (2010); Rorick

v. Office of Personnel Management, 109 M.S.P.R. 597, ¶ 5 (2008). During the

proceedings below, OPM submitted a copy of a new initial decision, dated June 3,

2021, indicating that it had conducted a new audit and determined that the

appellant did not receive an overpayment, but instead received an underpayment

of $834.34, which it planned to reimburse in her next annuity payment. Initial

Appeal File, Tab 16 at 4-5. OPM indicated that all previous requests to collect an

overpayment were rescinded. Id. at 5. Based on OPM’s submission, the

administrative judge dismissed the appeal as moot.

We grant the appellant’s petition for review for the sole purpose of

addressing her argument that the administrative judge erred in dismissing her

appeal as moot. Although the rescission of an OPM reconsideration decision can

cause an appeal of that decision to become moot, for an appeal to be deemed

moot, the appellant must have received all of the relief that she could have

received if the matter had been adjudicated and she had prevailed. Moore,

114 M.S.P.R. 549, ¶ 5; Rorick, 109 M.S.P.R. 597, ¶ 6. Here, the appellant

contends that her appeal is not moot because OPM has already taken deductions

to collect the (nonexistent) overpayment and she has been underpaid more than

$834.34 as a result. The existing record is insufficient to determine whether

appellant has in fact received all of the relief she could have received if the

matter had been adjudicated and she had prevailed. Under these circumstances,

the administrative judge erred in dismissing the appeal as moot. See id.

However, the appellant has not challenged the accuracy of OPM’s

statement that it rescinded its prior determinations regarding the alleged

overpayment. Thus, although OPM’s rescission of its reconsideration decision

did not render the appeal moot, it divested the Board of jurisdiction over this

appeal. See Moore, 114 M.S.P.R. 549, ¶ 6; Rorick, 109 M.S.P.R. 597, ¶¶ 5-6.

Accordingly, we dismiss this appeal for lack of jurisdiction. If OPM issues

a new reconsideration decision, and the appellant is dissatisfied with the result,

she may appeal that decision to the Board. See 5 U.S.C. § 8461(e)(1); 5 C.F.R.

§ 841.308. Any future appeal must be filed within the time limits set forth in the

Board’s regulations. See 5 C.F.R. § 1201.22.

NOTICE OF APPEAL RIGHTS 2

The initial decision, as supplemented by this Final Order, constitutes the

Board’s final decision in this matter. 5 C.F.R. § 1201.113. 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.

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.

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.

(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

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

following address:

U.S. Court of Appeals

for the Federal Circuit

717 Madison Place, N.W.

Washington, D.C. 20439

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.