Michelle R. Mattox v. Office of Personnel Management ( 2016 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
MICHELLE R. MATTOX, DOCKET NUMBER
Appellant, DA-0845-15-0449-I-1
v.
OFFICE OF PERSONNEL DATE: March 9, 2016
MANAGEMENT,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Michelle R. Mattox, Stilwell, Oklahoma, pro se.
Kristopher Lee Rogers, 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 her appeal for lack of jurisdiction after the Office of Personnel
Management (OPM) represented that it had rescinded its reconsideration decision
concerning an alleged overpayment of annuity benefits. Generally, we grant
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
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 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. 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, 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 by this Final Order to address the parties’ responses to the
Board’s December 8, 2015 Order to Show Cause, we AFFIRM the
initial decision.
DISCUSSION OF ARGUMENTS ON REVIEW
¶2 By notice dated December 7, 2014, OPM informed the appellant that,
according to its calculations, she had been overpaid $11,696.71 in Federal
Employees’ Retirement System annuity benefits. Initial Appeal File (IAF), Tab 1
at 4, 8-9. The appellant requested reconsideration, and, on June 10, 2015, OPM
issued a reconsideration decision affirming its calculation of the overpayment and
denying her request for a waiver. IAF, Tab 2 at 2. OPM indicated that it would
collect the overpayment in 77 monthly installments of $150.00, plus 1 installment
of $146.71, beginning with the appellant’s September 1, 2015 check. Id. at 5.
¶3 On June 24, 2015, the appellant filed a Board appeal contesting OPM’s
reconsideration decision. IAF, Tab 1. Subsequently, on July 27, 2015, OPM
submitted a letter stating that it “hereby rescinds the reconsideration decision of
June 10, 2015.” IAF, Tab 7. OPM further stated that, after the appellant’s appeal
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was dismissed, it would further review its calculation of the alleged overpayment
and render a new decision. Id. On July 30, 2015, the administrative judge issued
an initial decision dismissing the appeal for lack of jurisdiction based on OPM’s
representation that it had rescinded its reconsideration decision. IAF, Tab 12,
Initial Decision.
¶4 The appellant has filed a petition for review, asserting that OPM failed to
issue a new decision and has resumed collection of the alleged overpayment.
Petition for Review (PFR) File, Tab 1. In her reply to OPM’s response to her
petition for review, the appellant submitted a Notice of Annuity Adjustment,
indicating that $150.00 would be withheld from her monthly annuity payment to
collect the alleged overpayment. PFR File, Tab 5 at 10. The notice is undated,
but the appellant states that she received it in early September 2015. Id. at 5, 10.
In addition, the appellant submitted an undated Summary of Payments, indicating
that her January 2015 payment had been reduced by $324.59 for collection of the
alleged overpayment. Id. at 11. 2 Because the appellant’s new evidence raised a
question as to whether OPM had restored the appellant to the status quo ante, the
Board issued an Order to Show Cause, dated December 8, 2015, directing OPM to
submit evidence and argument on the issue. PFR File, Tab 6; see Martin v. Office
of Personnel Management, 119 M.S.P.R. 188, ¶ 10 (2013) (holding that, if OPM
does not restore the appellant to the status quo ante, the reconsideration decision
has not been rescinded, and the appeal of that decision remains within the
Board’s jurisdiction).
¶5 In its response to the Board’s order, OPM stated that, on August 31, 2015,
following the rescission of its reconsideration decision, it canceled the
2
In addition to the adjustment notice and payment summary, the appellant provided a
copy of an undated annuity statement, showing a net annuity payment of $1,179.32 for
August 1, 2015. PFR File, Tab 5 at 5. The statement indicates that the August 1, 2015
payment was not reduced for collection of the alleged overpayment. Id. The other
documents attached to the pleading have no apparent relevance to the question of
whether OPM rescinded its reconsideration decision.
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withholding that had been scheduled to begin September 1, 2015. PFR File,
Tab 8 at 5. OPM explained that the change was made too late in the payment
cycle to affect the September 1, 2015 payment and that $150.00 thus was
withheld from the payment. Id.; see id. at 9. However, OPM provided evidence
that it had corrected the error by refunding the $150.00 as a one-time annuity
adjustment. Id. at 10. OPM stated that it initiated the refund on August 31, 2015,
and speculated that the appellant would have received it at some point in early
September. Id. at 5, 10. OPM also provided evidence that, contrary to what was
indicated on the Summary of Payments, there were no overpayment withholdings
for the appellant’s January 2015 annuity payment. Id. at 9. OPM explained that
the summary was inaccurate due to an “anomaly in [the] system” and that the
system would continue to show an overpayment withholding for January 2015
“until a correction for past display errors can be put in place.” Id. at 5.
¶6 In her reply to OPM’s response, the appellant again objects that OPM has
yet to issue a new decision. PFR File, Tab 9. She questions OPM’s explanation
for the withholding from her September 1, 2015 payment, and appears to argue
either that OPM canceled the withholding prior to August 31, 2015, or that it
should have done so. Id. However, she does not dispute that at some point the
withholding was canceled and a refund was issued for the amount withheld from
her September 1, 2015 check. Id. Nor does she dispute OPM’s evidence that
there was no overpayment withholding for January 2015.
¶7 Having reviewed the parties’ submissions, we find that OPM has completely
rescinded its reconsideration decision and restored the appellant to the status quo
ante. Because the rescission of a reconsideration decision divests the Board of
jurisdiction over an appeal in which that decision is at issue, the appeal must be
dismissed. See Rorick v. Office of Personnel Management, 109 M.S.P.R. 597, ¶ 5
(2008). Accordingly, we affirm the initial decision.
¶8 As noted above, OPM has indicated that it intends to issue a new decision
concerning the alleged overpayment. Because it is possible that OPM will renew
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its collection efforts in the future, the appellant has not received all the relief she
would have obtained if the matter had been adjudicated and she had prevailed.
See id., ¶ 6. Hence, even though OPM completely rescinded its June 10, 2015
reconsideration decision, thus divesting the Board of jurisdiction over this appeal,
the issues on appeal are not moot. See id. Thus, rather than dismiss the appeal
outright, we dismiss it without prejudice to filing an appeal from any future
reconsideration decision by OPM on the same matter. See id. After OPM issues
a new reconsideration decision, the appellant may file a new appeal with the
appropriate regional office if she disagrees with that decision. See id., ¶ 7. Any
future appeal must be filed within the time limits set forth in the Board’s
regulations. See 5 C.F.R. § 1201.22.
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
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 have the right to
request review of this final decision by the U.S. Court of Appeals for the Federal
Circuit. You must submit your request to the court at the following address:
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
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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 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
Merit Systems Protection Board neither endorses the services 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.