Opinion

Kahtan Jabbour v. Office of Personnel Management

Court
Merit Systems Protection Board
Filed
May 31, 2024
Status
Unpublished
Cited by
0 cases
Authority
More cited than 16.2%

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THIS FINAL ORDER IS NONPRECEDENTIAL 1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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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