The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
BENJAMIN MCGHEE, DOCKET NUMBER
Appellant, SF-831M-20-0648-I-1
v.
OFFICE OF PERSONNEL DATE: May 8, 2024
MANAGEMENT,
Agency.
THIS ORDER IS NONPRECEDENTIAL 1
Benjamin McGhee , Spring Valley, California, pro se.
Carla Robinson , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
REMAND ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed his appeal of the calculation of an overpayment by the Office of
Personnel Management (OPM). For the reasons discussed below, we GRANT the
appellant’s petition for review, VACATE the initial decision, and REMAND the
case to the Western Regional Office for further adjudication in accordance with
this Remand Order.
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
BACKGROUND
In this appeal, the appellant contended that OPM erroneously determined
he received an overpayment of Civil Service Retirement System (CSRS) benefits
caused by an error in the apportionment of his former spouse’s annuity. Initial
Appeal File (IAF), Tab 1 at 12. He stated that OPM had issued a July 20, 2020
final decision finding that he had received an overpayment, but he did not include
a copy of that decision with his appeal. Id. On January 27, 2021, OPM moved to
dismiss the appeal on the basis that it had not issued an initial or final decision on
the appellant’s claim, and the appellant had not provided one. 2 IAF, Tab 8 at 4.
Because he found that OPM had not issued a final decision on the alleged
overpayment, the administrative judge dismissed the appeal for lack of
jurisdiction. IAF, Tab 9, Initial Decision at 3.
With his petition for review, the appellant provides a copy of OPM’s
July 20, 2020 final decision. Petition for Review (PFR) File, Tab 1 at 3-8. OPM
has filed a response to the appellant’s petition for review, asserting that the
petition fails to meet the criteria for Board review. PFR File, Tab 4.
DISCUSSION OF ARGUMENTS ON REVIEW
The issue of Board jurisdiction is always before the Board and may be
raised by either party or sua sponte by the Board at any time during a Board
proceeding. Hasanadka v. Office of Personnel Management, 116 M.S.P.R. 636,
¶ 19 (2011). The Board has jurisdiction to adjudicate an individual’s rights and
interests under the CSRS only after OPM has rendered a final or reconsideration
2
This is the appellant’s second appeal on this matter. In the first appeal, OPM
rescinded its final decision finding that the appellant had received an overpayment, and
notified the Board that it would be issuing a new final decision on the appellant’s claim.
McGhee v. Office of Personnel Management, MSPB Docket No SF-831M-20-0278-I-1,
Initial Decision (June 17, 2020). Because the Board no longer has jurisdiction over an
appeal when OPM has rescinded its final decision, the administrative judge
appropriately dismissed the appeal. Id. at 2; Frank v. Office of Personnel Management,
113 M.S.P.R. 164, ¶ 7 (2010).
3
decision on the issue in question. 5 U.S.C. § 8347(d)(1); Newman v. Office of
Personnel Management, 93 M.S.P.R. 159, ¶ 5 (2002); 5 C.F.R. § 831.110.
We are troubled by OPM’s erroneous assertion in January 2021 that it had
not issued a final decision in the matter, IAF, Tab 8 at 4, when in fact it had. 3
Because the record now shows that OPM issued a final decision in this matter and
that the appellant timely filed his appeal of that final decision, IAF, Tab 1; PFR
File, Tab 1 at 3-8, we find that the Board has jurisdiction over the appeal, and
remand the appeal to the Western Regional Office for adjudication. 5 U.S.C.
§ 8347(d)(1); Newman, 93 M.S.P.R. 159, ¶ 5; 5 C.F.R. § 831.110.
ORDER
For the reasons discussed above, we REMAND this case to the Western
Regional Office for further adjudication in accordance with this Remand Order.
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.
3
We are further troubled by OPM’s assertion in its response to the petition for review
that the appellant’s petition fails to meet the Board’s criteria for review. PFR File, Tab
4 at 4. Instead, as noted above, the appellant’s petition for review shows that, contrary
to OPM’s assertions, OPM issued a final decision on the overpayment at issue on July
20, 2020, which clearly establishes Board jurisdiction over the appeal. PFR File, Tab 1
at 3-8; 5 U.S.C. § 8347(d)(1); Newman, 93 M.S.P.R. 159, ¶ 5; 5 C.F.R. § 831.110.
Strikingly, on review, OPM made no attempt to explain its earlier erroneous statement
regarding the issuance of its final decision.