The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
MICHAEL O. REED, DOCKET NUMBER
Appellant, DA-0845-14-0336-I-1
v.
OFFICE OF PERSONNEL DATE: August 12, 2015
MANAGEMENT,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Gary W. Partridge, Austin, Texas, for the appellant.
Christopher H. Ziebarth, 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 the 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
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
regulation or the erroneous application of the law to the facts of the case; the
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, and based on the following points and authorities, 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 The appellant filed an appeal from the reconsideration decision of the
Office of Personnel Management (OPM) finding that he had been overpaid
$37,127.97 in interim annuity benefits. Initial Appeal File (IAF), Tab 1. During
proceedings before the administrative judge, OPM rescinded the reconsideration
decision. IAF, Tab 8. OPM indicated that it would issue a new decision
extending due process. Id. The administrative judge found that, because OPM
had completely rescinded the reconsideration decision, the Board did not have
jurisdiction over the appeal. IAF, Tab 11.
¶3 In his petition for review, the appellant argues that OPM’s rescission of its
reconsideration decision constituted a waiver of any overpayment. Petition for
Review (PFR) File, Tab 1. The appellant’s assertion is unavailing. OPM made
clear that it was rescinding the reconsideration decision “to further review the
computation of the annuity and overpayment as it relates to the new information
we have on file regarding the termination of [the appellant’s] disability Social
Security benefits.” IAF, Tab 8. OPM did not represent that it was waiving the
overpayment. If OPM completely rescinds a reconsideration decision, the
rescission divests the Board of jurisdiction over the appeal in which the
3
reconsideration decision is at issue, and the appeal must be dismissed. Frank v.
Office of Personnel Management, 113 M.S.P.R. 164, ¶ 8 (2010). The appellant
has presented no evidence that OPM did not completely rescind the overpayment
reconsideration decision. The administrative judge properly dismissed the appeal
for lack of jurisdiction. Id. 2
¶4 Based on the appellant’s argument in his petition for review, it appears that
he seeks to appeal OPM’s letter of October 11, 2014, 3 which he attaches to his
petition. This letter is apparently OPM’s initial decision on the recomputation of
the appellant’s the annuity and overpayment. PFR File, Tab 1. That letter
provides that the appellant was underpaid interim annuity benefits in the amount
of $29,313.00 due to the termination of his Social Security benefits, 4 and that
OPM applied the underpayment to the appellant’s overpayment, leaving an
2
The administrative judge issued the initial decision in this appeal on June 23, 2014.
IAF, Tab 11, Initial Decision (ID). The initial decision informed the appellant that a
petition for review must be filed by July 28, 2014. ID at 2. The appellant filed his
petition for review on May 11, 2015. It thus was apparently untimely filed by more
than 9 months. Because we find that the administrative judge properly dismissed the
appeal for lack of jurisdiction, we do not reach the timeliness issue.
3
OPM’s letter is erroneously dated October 11, 2013. The sequence of events in this
appeal shows that, because the letter was a follow up to the reconsideration decision
that OPM rescinded on June 4, 2014, the correct date of the letter is October 11, 2014.
4
When OPM was considering the appellant’s July 27, 2012 request for reconsideration
regarding OPM’s initial decision finding that he had received an overpayment of
$37,127.97, IAF, Tab 1, it was OPM’s position that annuitants would have to bear the
loss of income when they lost Social Security disability benefits, and that OPM would
not recalculate their Federal Employees’ Retirement System (FERS) disability
retirement annuities upward to account for the loss, see Stephenson v. Office of
Personnel Management, 705 F.3d 1323, 1328 (Fed. Cir. 2013). Between the date that
OPM issued its overpayment decision to the appellant and the commencement of
proceedings before the Board, the issue of whether OPM must do such a recalculation
was being litigated before the Board and the U.S. Court of Appeals for the Federal
Circuit. Id. In 2013, the court resolved the issue, finding that OPM must recalculate
FERS disability retirement annuities upward when the annuitant is not entitled to Social
Security disability benefits. Id. at 1328. It appears that, based on the court’s decision
in Stephenson, OPM recalculated the appellant’s disability annuity upward to terminate
the offset for his receipt of Social Security benefits, thus reducing his overpayment by
$29,313.00.
4
overpayment balance of $7,814.97. Id. The appellant represents that he sought
reconsideration of OPM’s October 11, 2014 letter. PFR File, Tab 1.
¶5 The Board may take jurisdiction over a retirement appeal from an OPM
initial decision if the evidence indicates that OPM does not intend to issue a final
decision. Fletcher v. Office of Personnel Management, 118 M.S.P.R. 632, ¶ 5
(2012). Based on OPM’s response to the appellant’s petition for review, PFR
File, Tab 5, we find that it is unclear whether OPM has received what the
appellant characterizes as a request for reconsideration and whether it intends to
issue a reconsideration decision of its initial decision of October 11, 2014.
Accordingly, we FORWARD the appellant’s apparent appeal of OPM’s
October 11, 2014 initial decision to the Dallas Regional Office for docketing as a
new appeal to allow the parties to submit evidence and argument on the issue of
whether the Board may take jurisdiction over the appellant’s appeal of OPM’s
October 11, 2014 initial decision. See Fletcher, 118 M.S.P.R. 632, ¶ 5.
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
You have the right to request review of this final decision by the United
States 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).
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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 United
States 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
United States 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 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: ______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.