The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
KAHTAN JABBOUR, DOCKET NUMBER
Appellant, DC-831M-19-0001-I-1
v.
OFFICE OF PERSONNEL DATE: May 31, 2024
MANAGEMENT,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Nicholas Jabbour , Bethesda, Maryland, for the appellant.
Karla W. Yeakle , 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 his appeal challenging the Office of Personnel Management (OPM)’s
reconsideration decision denying his request for a waiver of the collection of
payment of life insurance premiums that had not been deducted from his Civil
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
Service Retirement System (CSRS) annuity. 2 Generally, we grant petitions such
as this one only in the following 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. Except as expressly
MODIFIED to include an analysis of OPM’s evidence that the appellant was
returned to the status quo ante following its rescission of the reconsideration
decision, we AFFIRM the initial decision.
BACKGROUND
According to the appellant, he retired from Federal service in 2006, after
which he was a rehired annuitant through 2008. Initial Appeal File (IAF), Tab 1
at 5. He claims that, in 2013, he noticed that his monthly retirement statements
did not contain a line item deduction for his life insurance coverage and contacted
OPM about his concern. Id. On August 31, 2017, OPM issued an initial decision
indicating that the appellant owed $28,627.91 for life insurance premiums that
were never deducted from his monthly retirement annuity and set a collection
schedule of 36 monthly installments of $791.21 and a final payment of $0.35.
2
The administrative judge stated that the appeal concerned the appellant’s Federal
Employees’ Retirement System annuity. Initial Appeal File (IAF), Tab 26, Initial
Decision at 1. Upon close examination of the record, it appears that the appellant was
in CSRS. IAF, Tab 13 at 4-6, 10-11. This distinction does not affect the outcome of
the appeal.
3
IAF, Tab 12 at 7, 10. The appellant requested reconsideration of this decision,
seeking a waiver of the payments. IAF, Tab 13 at 26. On August 27, 2018, OPM
issued a reconsideration decision, denying the appellant’s request for a waiver
and finding the appellant responsible for the underpayment of his life insurance
premiums. IAF, Tab 12 at 4-6.
On September 29, 2018, the appellant filed the instant appeal challenging
OPM’s reconsideration decision. IAF, Tab 1. On February 12, 2019, while the
appeal was pending before the administrative judge, OPM submitted a pleading
indicating that it was rescinding its reconsideration decision. IAF, Tab 25 at 4.
OPM further indicated that it would review the appellant’s claims again and
“address them accordingly.” Id. at 5 (emphasis removed). The next day, the
administrative judge dismissed the appeal for lack of jurisdiction. IAF, Tab 26,
Initial Decision.
On March 20, 2019, the appellant filed a petition for review, arguing that
the dismissal was improper because OPM had not returned him to the status quo
ante by refunding the money it had already collected from him prior to the
rescission of the reconsideration decision. Petition for Review (PFR) File, Tab 1
at 4, 8-9. He identified the amount improperly collected as $795.21. Id. at 7.
OPM filed a response, asserting that, on April 1, 2019, it issued a refund to the
appellant in the amount of $795.21. PFR File, Tab 4 at 5. OPM included a
computer printout supporting its assertion. Id. at 6. The appellant did not file a
reply to OPM’s response addressing its claim that it refunded him the collected
overpayment amount. On August 1, 2019, the Office of the Clerk of the Board
issued an order requiring the appellant to submit evidence and argument
addressing OPM’s assertion that it had refunded him the appropriate amount and
whether his petition for review had been rendered moot. PFR File, Tab 5 at 2.
The Office of the Clerk of the Board informed the appellant that, if he failed to
respond to the order, “the Board may accept OPM’s submission as accurate.” Id.
The appellant did not file any such evidence or argument.
4
DISCUSSION OF ARGUMENTS ON REVIEW
If OPM completely rescinds a reconsideration decision, its rescission
divests the board of jurisdiction over the appeal in which that reconsideration
decision is at issue. Campbell v. Office of Personnel Management, 123 M.S.P.R.
240, ¶ 7 (2016). A complete rescission requires OPM to return the appellant to
the status que ante. Id. Status quo ante means placing the injured party, as near
as possible, in the position that he would have held had “the wrong not been
committed.” Id. Thus, to rescind a final overpayment decision, OPM must,
among other things, refund any money that it already collected from the appellant
to recoup the alleged overpayment. Id., ¶ 8.
The sole issue before the Board is whether OPM “completely” rescinded its
reconsideration decision. The appellant identified the amount at issue in his
petition for review. PFR File, Tab 1 at 7. OPM responded, claiming that it had
refunded the appellant the identified amount and submitting documentary
evidence to that effect. 3 PFR File, Tab 4 at 5-6. As stated above, the Office of
the Clerk of the Board provided the appellant with an opportunity to dispute
OPM’s claim that it had refunded the payment and informed him that if he did not
respond the Board may accept OPM’s submission as accurate. PFR File, Tab 5.
The appellant did not respond to this order. Based on the foregoing, we find that
OPM’s assertion that it refunded the $795.21 and the documentary evidence in
support thereof are sufficient to establish that it returned the appellant to the
status quo ante. Accordingly, we find that OPM completely rescinded the
reconsideration decision. See Campbell, 123 M.S.P.R. 240, ¶ 8. We modify the
initial decision to include an analysis of OPM’s evidence that the appellant was
returned to the status quo ante.
3
Under 5 C.F.R. § 1201.115, the Board generally will not consider evidence submitted
for the first time on review absent a showing that it was unavailable before the record
was closed despite the party’s due diligence. Avansino v. U.S. Postal Service,
3 M.S.P.R. 211, 214 (1980). Here, the document submitted on review is dated April 1,
2019, and appears to contain information that was not available when the record closed
below. Accordingly, we have considered it.
5
We deny the appellant’s petition for review and affirm the initial decision’s
dismissal for lack of jurisdiction. Id., ¶ 7 (stating that if OPM rescinds its final
decision the Board is divested of jurisdiction). If OPM issues a new
reconsideration decision adverse to the appellant, he may file a new appeal with
the Board consistent with its regulations.
NOTICE OF APPEAL RIGHTS 4
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. 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
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
4
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.
6
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
7
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
8
(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. 5 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).
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.
5
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.
9
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.