Oksana Klebs v. Office of Personnel Management ( 2024 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
OKSANA KLEBS, DOCKET NUMBER
Appellant, DC-0845-19-0285-I-1
v.
OFFICE OF PERSONNEL DATE: June 25, 2024
MANAGEMENT,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Oksana Klebs , North Potomac, Maryland, pro se.
Michael Shipley , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member*
*Member Kerner did not participate in the adjudication of this appeal.
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed for lack of jurisdiction her appeal of a reconsideration decision by the
Office of Personnel Management (OPM) because OPM indicated that it had
rescinded its reconsideration decision. Generally, we grant petitions such as this
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).
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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 and AFFIRM the initial
decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
BACKGROUND
The appellant filed this appeal challenging the January 28, 2019 OPM
reconsideration decision, in which OPM determined that the appellant had been
overpaid $8,090.80 in Federal Employees Retirement System survivor annuity
benefits. Initial Appeal File (IAF), Tab 1, Tab 7 at 10-11. While this appeal was
pending before the administrative judge, OPM indicated that it was rescinding its
reconsideration decision, and it therefore moved to dismiss the appeal for lack of
jurisdiction. IAF, Tab 9 at 4. On April 9, 2019, the administrative judge granted
OPM’s motion and dismissed the appeal for lack of jurisdiction. IAF, Tab 11,
Initial Decision at 1-2.
On petition for review, the appellant asserts that she received a Notice of
Annuity Adjustment from OPM, which stated that, starting on May 1, 2019, OPM
began withdrawing money from her survivor annuity. Petition for Review (PFR)
File, Tab 1 at 1. The appellant includes on review, among other things, the OPM
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notice which indicated that an additional $264.80 was being withheld from her
monthly annuity payment “because [OPM] paid [her] too much annuity.” Id. at 6.
In its response, OPM stated that it prematurely commenced collection of
the overpayment with the appellant’s May 1, 2019 survivor annuity payment.
PFR File, Tab 4 at 4. OPM added that it completed action to cease the collection,
and it had authorized a refund of $264.80. Id. OPM provided no evidence in
support of its assertions. Although the appellant was informed that she had the
opportunity to reply to OPM’s response, PFR File, Tab 2 at 1, she did not do so.
On July 2, 2019, the Office of the Clerk of the Board ordered OPM to file
additional evidence and argument establishing that it had restored the appellant to
the status quo ante, and it provided the appellant the opportunity to reply to
OPM’s response. PFR File, Tab 5. In its response, OPM states that it had
refunded the appellant $264.80, and OPM includes a May 10, 2019 payment
history screen printout documenting the refund and documentation identifying the
appellant’s financial institution. PFR File, Tab 6 at 4-7. The appellant did not
file a reply to OPM’s response.
DISCUSSION OF ARGUMENTS ON REVIEW
When OPM completely rescinds a reconsideration decision, the rescission
divests the Board of jurisdiction over the appeal in which the reconsideration
decision has been issued, and the appeal must be dismissed. Martin v. Office of
Personnel Management, 119 M.S.P.R. 188, ¶ 8 (2013). However, if OPM does
not restore the appellant to the status quo ante, the reconsideration decision has
not been rescinded, and the appeal remains within the Board’s jurisdiction. Id.,
¶ 10. To rescind an overpayment decision, OPM must, among other things,
refund any money that it already collected from the appellant to recoup the
alleged overpayment. Campbell v. Office of Personnel Management,
123 M.S.P.R. 240, ¶ 8 (2016).
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Here, the record reflects on review that OPM began withholding money
from the appellant’s survivor annuity benefits based on a reconsideration decision
that it rescinded below. PFR File, Tab 1 at 1, 6; IAF, Tab 9 at 4. As noted
above, OPM has since provided unrebutted evidence and argument reflecting that
its collection efforts have ceased and the appellant has been refunded all the
money that was wrongly withheld from her survivor annuity benefits. PFR File,
Tabs 4, 6. Accordingly, we find that the undisputed record reflects that OPM has
fully restored the appellant to the status quo ante and rescinded the
reconsideration decision upon which this appeal is based. The appeal must
therefore be dismissed for lack of jurisdiction. Rorick v. Office of Personnel
Management, 109 M.S.P.R. 597, ¶ 5 (2008).
However, OPM’s rescission of its January 28, 2019 reconsideration
decision does not render moot the existence or amount of the alleged
overpayment or the appellant’s possible entitlement to a waiver. Id., ¶ 6. We
therefore dismiss the appeal without prejudice to the appellant filing a new appeal
with the appropriate regional office concerning any future reconsideration
decision by OPM on the same matter. Id., ¶ 7. Any future appeal must be filed
within the time limits set forth in the Board’s regulations. 5 C.F.R. § 1201.22.
NOTICE OF APPEAL RIGHTS 2
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
2
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.
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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
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
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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
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
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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
(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. 3 The court of appeals must receive your petition for
3
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.
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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.
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.
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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.