Dwayne Anthony Tucker, Sr v. Office of Personnel Management ( 2014 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
DWAYNE ANTHONY TUCKER, SR, DOCKET NUMBER
Appellant, PH-0845-14-0658-I-1
v.
OFFICE OF PERSONNEL DATE: October 16, 2014
MANAGEMENT,
Agency.
THIS ORDER IS NONPRECEDENTIAL *
Dwayne Anthony Tucker, Sr., Essex, Maryland, pro se.
Christopher H. Ziebarth, Washington, D.C., for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Anne M. Wagner, Vice Chairman
Mark A. Robbins, Member
REMAND ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed his appeal for lack of jurisdiction based upon the Office of Personnel
Management’s (OPM’s) statement that it would rescind its reconsideration
decision. For the reasons discussed below, we GRANT the appellant’s petition
*
A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
for review and REMAND the case to the regional office for further adjudication
in accordance with this Order.
DISCUSSION OF ARGUMENTS ON REVIEW
¶2 The appellant applied for retirement under the Federal Employees’
Retirement System and began receiving interim annuity benefits in
September 2012. Initial Appeal File (IAF), Tab 6 at 17, 26-29. In its initial
decision, OPM stated that it had issued an overpayment concerning the previously
issued interim benefits. OPM also informed the appellant that it would collect the
overpayment by withholding installments from future monthly annuity payments.
Id. at 16-17. OPM informed the appellant of his right to request reconsideration
within 30 days. Id. The appellant contacted OPM via telephone regarding the
initial decision more than 30 days after its issuance. Id. at 9. In response, OPM
issued a reconsideration decision finding both that the appellant’s request for
reconsideration was untimely and that he provided no basis for waiving the
overpayment based on financial hardship. Id. at 9-10. OPM began withholding
the installments from the appellant’s annuity benefits. Id. at 12.
¶3 The appellant submitted a timely Board appeal arguing that OPM was
negligent in calculating his interim benefits and that repayment would cause him
financial hardship. IAF, Tab 1. In response, OPM stated that its reconsideration
decision was incorrect because it did not specify that the interim benefits
overpayment resulted when the appellant became entitled to Social Security
Administration benefits. IAF, Tab 6 at 4. OPM therefore indicated its intent to
rescind the reconsideration decision, requested dismissal of the appeal, and stated
that it would issue a new reconsideration decision. Id. Based upon OPM’s
representation that it would rescind the reconsideration decision, the
administrative judge dismissed the appeal for lack of jurisdiction. IAF, Tab 8,
Initial Decision.
3
¶4 On petition for review, the appellant argues that recovery of the
overpayment is causing him financial hardship and requests that he be returned to
the financial state that he was in prior to the discovery of the overpayment.
Petition for Review (PFR) File, Tab 1. In response, OPM indicates that it issued
a new initial decision following the administrative judge’s dismissal to which the
appellant has not responded. PFR File, Tab 4 at 4. OPM also attaches its new
initial decision. PFR File, Tab 4 at 6-8. In reply, the appellant argues that OPM
should be required to return the amount of money that it has already withheld.
PFR File, Tab 5.
¶5 The Board’s jurisdiction is not plenary; it is limited to those matters over
which it has been given jurisdiction by law, rule or regulation. Maddox v. Merit
Systems Protection Board, 759 F.2d 9, 10 (Fed. Cir. 1985). In particular, if OPM
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). An exception to this rule exists,
however, when OPM has rescinded its decision but has failed to restore the
appellant to the status quo ante. In such cases, the Board will retain jurisdiction.
Id., ¶ 10.
¶6 In this case, although OPM states that it rescinded the reconsideration
decision, it submits no evidence concerning reimbursement to the appellant of
previously withdrawn funds. PFR File, Tab 4. On review, the appellant states
that OPM indeed has not returned the funds to him. PFR File, Tab 5 at 4. We
therefore find that OPM has failed to establish that it returned the appellant to the
status quo ante. Accordingly, the appeal remains within the Board’s jurisdiction.
See Martin, 119 M.S.P.R. 188, ¶ 10.
4
ORDER
For the reasons discussed above, we REMAND this case to the regional
office for further adjudication in accordance with this Remand Order.
FOR THE BOARD: ______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.