John D. Carpenter v. Office of Personnel Management ( 2015 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JOHN D. CARPENTER, DOCKET NUMBER
Appellant, NY-0845-15-0176-I-1
v.
OFFICE OF PERSONNEL DATE: September 21, 2015
MANAGEMENT,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL *
Patricia Carpenter, Massapequa, New York, for the appellant.
Cynthia Reinhold, 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 his appeal of the reconsideration decision of the Office of Personnel
Management (OPM) regarding an annuity overpayment he allegedly received
under the Federal Employees’ Retirement System for lack of jurisdiction
*
A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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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following OPM’s rescission of that decision. 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
regulation or the erroneous application of the law to the facts of the case; the
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, and based on the following points and
authorities, 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 The appellant filed an appeal with the Board regarding OPM’s March 25,
2015 reconsideration decision finding that he received an annuity overpayment,
for which he was not entitled to a waiver, and informing him that it would collect
repayment by deducting monthly installments of $200.00 from his annuity. Initial
Appeal File (IAF), Tab 1. He declined a hearing. Id.¶3 On May 21, 2015, OPM advised the administrative judge of its decision to
rescind the March 25, 2015 reconsideration decision. IAF, Tab 8 at 4. As such, it
moved to dismiss the appeal, arguing that the Board no longer has jurisdiction
over the matter. Id. The administrative judge issued an initial decision granting
OPM’s motion. IAF, Tab 10, Initial Decision.
¶4 The appellant has filed a petition for review. Petition for Review (PFR)
File, Tab 1. He asserts that, following OPM’s rescission of the reconsideration
decision and the administrative judge’s issuance of the initial decision, OPM
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informed him that it would nonetheless commence deducting the monthly
installments of $200.00 from his annuity. Id.¶5 OPM filed a response acknowledging that it did erroneously withhold a
monthly installment of $200.00 from the appellant’s annuity, but subsequently
terminated collection and refunded the amount erroneously withheld. PFR File,
Tab 4 at 5. OPM submitted a computer printout, with handwritten explanatory
notes, which shows that it withheld one installment of $200.00 from the
appellant’s annuity paycheck dated July 1, 2015, subsequently issued him a
refund in the amount of $200.00, and did not withhold the $200.00 installment
from his annuity paycheck dated August 3, 2015. Id. at 6. The appellant did not
submit a reply.
¶6 It is well settled that, 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.
Martin v. Office of Personnel Management, 119 M.S.P.R. 188, ¶ 8 (2013). Based
on OPM’s evidence submitted in response to the appellant’s petition for review,
which the appellant does not challenge, we find that OPM has completely
rescinded its reconsideration decision by refunding the amount it erroneously
collected and stopping further collections unless and until it issues a new
reconsideration decision. See Glasgow v. Office of Personnel
Management, 103 M.S.P.R. 531, ¶ 5 (2006). We therefore find that this appeal
remains outside of our jurisdiction and we affirm the initial decision.
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:
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United States Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, DC 20439
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 an 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.