Opinion

Lena Reyes v. Office of Personnel Management

Court: Merit Systems Protection Board
Filed: May 28, 2024
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 16.2%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

LENA REYES, DOCKET NUMBER

Appellant, AT-0845-19-0216-I-1

OFFICE OF PERSONNEL DATE: May 28, 2024

MANAGEMENT,

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Lena Reyes , Safety Harbor, Florida, pro se.

Carla Robinson , Washington, D.C., for the agency.

BEFORE

Cathy A. Harris, Chairman

Raymond A. Limon, Vice Chairman

FINAL ORDER

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

dismissed for lack of Board jurisdiction her appeal of a reconsideration decision

issued by the Office of Personnel Management (OPM) finding that she received

an overpayment of benefits under the Federal Employees’ Retirement System

(FERS). Generally, we grant petitions such as this one only in the following

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

circumstances: the initial 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. However, we VACATE the initial

decision, as the appellant did not receive her jurisdictional notice and an

opportunity to establish Board jurisdiction prior to its issuance. We FIND that on

review, after the appellant received explicit information on what was required to

establish jurisdiction, she failed to meet her burden of establishing Board

jurisdiction, as OPM completely rescinded its reconsideration decision.

BACKGROUND

On January 11, 2019, OPM issued a reconsideration decision, affirming its

earlier finding that the appellant received an overpayment of FERS benefits.

Initial Appeal File (IAF), Tab 5 at 12-17. After accounting for adjustments, OPM

determined that the appellant received a $10,901.79 overpayment, and set forth a

collection schedule to begin on April 1, 2019. 2 Id. at 13-17. The appellant timely

filed this instant Board appeal contesting OPM’s reconsideration decision. IAF,

Tab 1; see 5 C.F.R. § 1201.22(b)(1).

The collection schedule was 33 monthly installments of $321, with a final installment

of $308.79, to be collected against the monthly FERS benefit payment made to the

appellant. IAF, Tab 5 at 14.

On March 28, 2019, during the adjudication of this appeal, OPM filed a

pleading with the Board advising that it rescinded its January 11, 2019

reconsideration decision, and would remand the appellant’s case to the

appropriate OPM office for further development. IAF, Tab 7 at 4. In response,

the appellant sought the Board to retain jurisdiction over her appeal. IAF, Tab 9.

The administrative judge then issued an initial decision, finding that because

OPM rescinded its reconsideration decision, the Board lacked jurisdiction to

adjudicate the merits of this appeal. IAF, Tab 10, Initial Decision (ID) at 1-2.

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

OPM responded. Petition for Review (PFR) File, Tabs 1, 4. Then, on July 29,

2019, the Office of the Clerk of the Board issued the parties an order addressing

two issues. PFR File, Tab 6. First, evidence in the record suggested that OPM

started collecting the overpayment from the appellant prior to the March 28, 2019

notice that it rescinded its reconsideration decision. IAF, Tab 5 at 8, 12-14,

Tab 7 at 4; PFR File, Tab 6 at 1-2. It was unclear if OPM reimbursed the

appellant any of the collected amount after rescission of its reconsideration

decision. Second, a review of the record revealed that the appellant did not

receive notice of her jurisdictional burden and an opportunity to establish Board

jurisdiction over this appeal, so the order provided such notice. PFR File, Tab 6

at 2-3. The Clerk of the Board provided both parties with the opportunity to file

argument and evidence on these issues. 3 Id. at 3. Both parties responded to the

order. PFR File, Tabs 7-8.

The parties had an opportunity to file a response to any pleading filed by the opposing

party. PFR File, Tab 6 at 3.

DISCUSSION OF ARGUMENTS ON REVIEW

We vacate the initial decision because the appellant did not receive her

jurisdictional notice and an opportunity to establish Board jurisdiction prior to its

issuance.

The U.S. Court of Appeals for the Federal Circuit and the Board have

repeatedly held that an appellant must receive explicit information on what is

required to establish an appealable jurisdictional issue before the Board, i.e., a

Burgess notice, and an opportunity to prove jurisdiction. Burgess v. Merit

Systems Protection Board, 758 F.2d 641, 643-44 (Fed. Cir. 1985); see

Kent v. Office of Personnel Management, 123 M.S.P.R. 103, ¶ 10 (2015). Here,

the administrative judge erred, as she failed to provide the appellant with the

proper Burgess notice and an opportunity for the appellant to prove that she

satisfied her jurisdictional burden before issuing the initial decision dismissing

this appeal for lack of jurisdiction. ID at 1-2; see Frank v. Office of Personnel

Management, 113 M.S.P.R. 164, ¶¶ 4-5 (2010) (outlining that after OPM

rescinded its final decision, the administrative judge ordered the appellant to

demonstrate why his Board appeal should not be dismissed for lack of jurisdiction

and/or mootness and provided him with an opportunity to respond prior to

dismissing the appeal). Although the administrative judge issued an order

outlining the parties’ burdens in regards to the merits applicable to this appeal, it

did not contain any notice of the Board’s jurisdictional requirements. IAF, Tab 3.

On review, the appellant, proceeding pro se, states that she does not understand

why the initial decision dismissed her appeal for lack of jurisdiction and that she

is unaware of the Board’s “processes and procedures.” PFR File, Tab 1 at 1.

Because the appellant did not receive her jurisdictional notice followed by

an opportunity to establish Board jurisdiction prior to the issuance of the initial

decision, nor was this error cured by other prescribed means, we must vacate the

initial decision. See Alvarez v. Department of Homeland Security , 112 M.S.P.R.

434, ¶¶ 1, 9-10 (2009) (vacating an initial decision because the administrative

judge did not issue the appellant a Burgess notice with an opportunity to show

Board jurisdiction); Scott v. Department of Justice, 105 M.S.P.R. 482, ¶ 6 (2007)

(outlining the ways to cure a Burgess notice defect). On review, the Clerk of the

Board issued the appellant an order containing explicit information on her

jurisdictional burden in this appeal and provided her with an opportunity to

submit argument and evidence to meet her burden, satisfying Burgess. PFR File,

Tab 6 at 2-3. The appellant responded to the order. PFR File, Tab 8. As a result,

this appeal is now ripe for a jurisdictional determination.

OPM completely rescinded its reconsideration decision, divesting the Board of

jurisdiction over this appeal.

The Board generally has jurisdiction to review an OPM determination

affecting an appellant’s rights or interests under a retirement system only after

OPM issues a final or reconsideration decision. Tatum v. Office of Personnel

Management, 82 M.S.P.R. 96, ¶ 7 (1999). An appellant bears the burden of

establishing Board jurisdiction over an appeal contesting an OPM reconsideration

decision by preponderant evidence. 4 Miller v. Office of Personnel Management,

123 M.S.P.R. 68, ¶ 7 (2015); 5 C.F.R. § 1201.56(b)(2)(i)(A). 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.

Martin v. Office of Personnel Management, 119 M.S.P.R. 188, ¶ 8 (2013).

OPM’s unilateral modification of a reconsideration decision after a Board appeal

has been filed cannot divest the Board of jurisdiction unless the appellant

consents to such divestiture or unless OPM completely rescinds the decision

being appealed. 5 Id. In order for the rescission of an OPM reconsideration

decision to be complete, an appellant must be restored to status quo ante, and if

she has not been, the appeal remains within the Board’s jurisdiction. Id., ¶ 10.

This means that any monies collected by OPM against an overpayment as

Preponderant evidence is the degree of relevant evidence that a reasonable person,

considering the record as a whole, would accept as sufficient to find that a contested

fact is more likely to be true than untrue. 5 C.F.R. § 1201.4(q).

There is no evidence in the record that the appellant consented to any divestiture.

determined in a reconsideration decision must be repaid to an appellant before

rescission is complete. Id.

The record reflects that on August 2, 2019, OPM finished completely

rescinding its reconsideration decision at issue. The record, to include the

pleadings filed by the parties on review, shows: (1) OPM issued the appellant

notice that it was rescinding its reconsideration decision concerning her

overpayment of FERS benefits; (2) OPM ceased its collection of the overpayment

against the appellant; (3) OPM refunded the appellant $1,926—the amount it

collected against the overpayment—and the appellant received the refund; 6 and

(4) OPM restored the appellant to status quo ante. IAF, Tab 7 at 4; PFR File,

Tab 7 at 4-7, Tab 8 at 1-2. Therefore, we find that OPM completely rescinded its

reconsideration decision regarding the appellant receiving an overpayment of

FERS benefits, leaving the Board without jurisdiction to adjudicate the merits of

this appeal. 7 See Glasgow v. Office of Personnel Management, 103 M.S.P.R. 531,

¶ 5 (2006).

NOTICE OF APPEAL RIGHTS 8

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

From February 2019 through July 2019, OPM collected $321 per month from the

appellant, which reflects the collection amount from the rescinded reconsideration

decision. PFR File, Tab 7 at 4, 6; see IAF, Tab 5 at 14.

If OPM issues a new reconsideration decision, the appellant may file an appeal with

the appropriate Board office if she disagrees with that reconsideration decision. See

Rorick v. Office of Personnel Management, 109 M.S.P.R. 597, ¶¶ 5-7 (2008).

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.

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.

(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. 9 The court of appeals must receive your petition for

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.

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