The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
RUTH RIVERA, DOCKET NUMBER
Appellant, NY-831M-15-0136-I-1
v.
OFFICE OF PERSONNEL DATE: September 28, 2015
MANAGEMENT,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Ruth Rivera, New York, New York, pro se.
Kristine Prentice, 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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).
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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. 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, 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 In this appeal, the appellant challenged a reconsideration decision issued by
the Office of Personnel Management (OPM) regarding an alleged overpayment of
her discontinued service annuity following her reemployment by the Internal
Revenue Service (IRS). Initial Appeal File (IAF), Tab 1. OPM subsequently
rescinded its reconsideration decision and moved for the administrative judge to
dismiss the appeal. IAF, Tab 10. The administrative judge granted OPM’s
motion and dismissed the appeal for lack of jurisdiction. IAF, Tab 16, Initial
Decision (ID).
¶3 In her timely-filed petition for review, the appellant challenges the
administrative judge’s statement that she failed to submit a reply to OPM’s claim
that it had refunded the amount it had withheld from her annuity. Petition for
Review (PFR) File, Tab 1 at 1; see IAF, Tab 15; ID at 2. The appellant claims
that she submitted a reply to OPM’s response, and she includes a copy, as well as
U.S. Postal Service tracking documents indicating that her reply was delivered to
the regional office on July 6, 2015, 1 day before the administrative judge issued
her initial decision. PFR File, Tab 1 at 1, 4-7. OPM responds in opposition to
the appellant’s petition for review. PFR File, Tab 4.
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¶4 Although it appears that the regional office may have received the
appellant’s reply to OPM’s response to the administrative judge’s June 23, 2015
order, and the appellant’s submission indicates that OPM stopped offsetting the
appellant’s annuity and refunded the $100.10 it had deducted so far, 2 it is not
pertinent to the jurisdictional issue as it does not address OPM’s rescission of its
reconsideration decision. PFR File, Tab 1 at 4-5. Whether OPM had refunded
the amount it had withheld from the appellant’s annuity does not change the fact
that it rescinded its reconsideration decision. IAF, Tab 10; ID at 1. If OPM
completely rescinds a reconsideration decision, the rescission divests the Board of
jurisdiction over the appeal in which the reconsideration decision is at issue, and
the appeal must be dismissed. E.g., Frank v. Office of Personnel Management,
113 M.S.P.R. 164, ¶ 8 (2010). In its motion to rescind, OPM asserts that once the
appeal is dismissed, it will review the overpayment, IAF, Tab 10 at 4, and
presumably issue a new reconsideration decision, from which the appellant may
appeal.
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
2
The appellant also alleges that OPM has not reimbursed the amounts withheld from
her annuity between June 1, 2012, and April 30, 2014, following her reemployment
with the IRS. PFR File, Tab 1 at 5; see IAF, Tab 12 at 1-2. She also asserts that both
OPM and the Department of the Treasury are trying to collect the overpayment and are
using different amounts. Id.; see IAF, Tab 12 at 1-2, Tab 9 at 3. Nevertheless, for the
reasons cited above, in the absence of a final reconsideration decision from OPM, the
Board is without jurisdiction to hear this appeal.
4
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).
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 your 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
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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.