# David McElwee v. Office of Personnel Management

> Merit Systems Protection Board · June 16, 2026

URL: https://www.frixlaw.com/law-library/cases/11343698

## Case

- **Court:** Merit Systems Protection Board
- **Decided:** June 16, 2026
- **Precedential status:** Unpublished
- **Opinion:** Opinion
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD

DAVID G. MCELWEE, DOCKET NUMBER
Appellant, PH-0845-23-0221-I-1

v.

OFFICE OF PERSONNEL DATE: June 16, 2026
MANAGEMENT,
Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

David G. McElwee , Freedom, New Hampshire, pro se.

Kevin L. Beach , Washington, D.C., for the agency.

BEFORE

Henry J. Kerner, Vice Chairman
James J. Woodruff II, Member

FINAL ORDER

The appellant has filed a petition for review of the initial decision, which
dismissed his Federal Employees’ Retirement System (FERS) annuity
overpayment appeal for lack of jurisdiction after the Office of Personnel
Management (OPM) indicated that it rescinded its final decision. Generally, we
grant petitions such as this one only in the following circumstances: the initial

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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

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
Effective July 29, 2022, the appellant retired from the Department of
Veterans Affairs. Initial Appeal File (IAF), Tab 3 at 34. Following his
retirement, OPM authorized interim payments to the appellant and issued a gross
payment of $12,987.00, covering the period from September 1 to December 30,
2022. IAF, Tab 1 at 7, 9. At some point in January 2023, OPM issued an initial
decision advising the appellant that he had received an overpayment of $3,728.75
in FERS annuity benefits. IAF, Tab 3 at 7. He sought reconsideration of OPM’s
decision, and OPM issued a final decision sustaining its initial decision. IAF,
Tab 1 at 7-9.
The appellant filed the instant Board appeal challenging the final decision
and the calculation of his annuity. IAF, Tab 1 at 2-10. OPM did not file its
response to the appeal as ordered by the administrative judge and required by
Board regulations. IAF, Tab 2 at 7, Tabs 5-6; see 5 C.F.R. § 1201.22(a)-(b)(1)
(requiring an agency’s response to an appeal to be filed within 20 days of the date
3

of the acknowledgment order). Instead, it rescinded its April 3, 2023 final
decision and moved to dismiss the appeal. IAF, Tab 7 at 4. Eight days later,
before the appellant responded to OPM’s motion, the administrative judge issued
an initial decision, dismissing the appeal for lack of jurisdiction based on OPM’s
rescission of its final decision. IAF, Tab 8, Initial Decision at 1-3.
On petition for review, the appellant argues that OPM continued to collect
the overpayment debt after it purportedly rescinded its final decision. Petition for
Review (PFR) File, Tab 1 at 2. OPM did not file a response to the petition for
review. The Office of the Clerk of the Board issued orders directing OPM to file
additional evidence and argument establishing that it had restored the appellant to
the status quo ante, and it provided the appellant with the opportunity to reply to
OPM’s response. PFR File, Tabs 4, 6. In response, OPM states that it has
refunded the appellant the $1,480.64 it collected and includes a payment history
screen printout documenting a May 21, 2025 refund to the appellant. PFR File,
Tab 7 at 4-6. The appellant has not filed 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 on review reflects that OPM began withholding money
from the appellant’s FERS annuity benefits based on a reconsideration decision
4

that it rescinded below. PFR File, Tab 1 at 2. As noted above, OPM has since
provided unrebutted evidence and argument reflecting that it has ceased its
collection efforts and refunded the appellant all the money that it withheld from
his FERS annuity benefits. PFR File, Tab 7. 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. 2 Rorick v.
Office of Personnel Management, 109 M.S.P.R. 597, ¶ 5 (2008).

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.
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

2
If OPM issues a new reconsideration decision, the appellant may file an appeal with
the appropriate Board office if he disagrees with that reconsideration decision. See
Rorick, 109 M.S.P.R. 597, ¶¶ 5-7. Any future appeal must be filed within the time
limits set forth in the Board’s regulations. See 5 C.F.R. § 1201.22.
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

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
6

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
7

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: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11343698. Public record. Not legal advice.