Wells v. MSPB

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
CHERYL WELLS,
Petitioner
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent
______________________
2017-2177
______________________
Petition for review of the Merit Systems Protection
Board in No. AT-0831-16-0804-I-1.
______________________
Decided: April 17, 2018
______________________
ARIEL E. SOLOMON, Solomon Law Firm, PLLC, Alba-
ny, NY, for petitioner.
SARA B. REARDEN, Office of the General Counsel,
Merit Systems Protection Board, Washington, DC, for
respondent. Also represented by KATHERINE M. SMITH.
______________________
Before O’MALLEY, MAYER, and TARANTO, Circuit Judges.
PER CURIAM.
2 WELLS v. MSPB
Cheryl Wells (“Wells”) appeals from the final decision
of the Merit Systems Protection Board (“the Board”)
dismissing her appeal as moot after the Office of Person-
nel Management (“OPM”) rescinded its decision which
had reduced the amount of her monthly retirement annui-
ty and granted her an opportunity to make the necessary
civil service deposit. Wells v. Office of Pers. Mgmt., No.
AT-0831-16-0804-I-1, 2017 WL 1148081 (M.S.P.B. Mar.
21, 2017) (“Final Decision”). Because we agree with the
Board’s determination that the appeal is moot, we affirm.
BACKGROUND
Wells was a member of the United States Navy from
1974 to 1979. J.A. 69. She subsequently worked for the
General Services Administration between 1980 and 1984,
and the Department of Health and Human Services from
1984 until her retirement from federal service in 2005.
Id.In a final decision letter dated August 1, 2016, OPM
notified Wells that, because the Social Security Admin-
istration certified that she was eligible for Social Security
benefits, “OPM was recomputing her civil service annuity
to eliminate retirement credit for [her] post-1956 military
service for which she had not made a pre-retirement
deposit.” Final Decision, 2017 WL 1148081, at *1. The
letter explained that the law “allows credit for military
service performed after 1956 under both the Civil Service
Retirement System and the Social Security system, if the
employee pays a deposit for the service before his retire-
ment,” but that Wells failed to make the deposit “even
though [she was] informed about the consequences.” J.A.
67.
Wells timely appealed OPM’s decision to the Board.
In her appeal, Wells claimed that she was entitled to
make a post-separation deposit to the Civil Service Re-
tirement Fund to obtain credit for her military service—
and to have her retirement annuity recalculated based on
WELLS v. MSPB 3
that deposit—because her employing agency made certain
errors that caused her not to make the deposit at the time
of her retirement. J.A. 103.
The administrative judge (“AJ”) issued a routine ac-
knowledgment order on September 9, 2016. J.A. 73–79.
In response, OPM asserted that Wells was not entitled to
make a belated deposit because: (1) there was no evidence
of administrative error; and (2) she was provided an
opportunity to make a deposit prior to her retirement.
J.A. 65–66. The AJ conducted a hearing during which
Wells claimed that her employing agency provided inade-
quate and/or inaccurate information regarding the effect
of not making the pre-retirement deposit and the time
allotted for making such deposit. In her closing state-
ment, Wells alleged that the agency official designated to
assist her with her retirement did not inform her of the
amount of money she would have had to deposit to get
credit for her military time and led her to believe that the
deposit could be made after retirement. J.A. 20.
Based on the information presented during the hear-
ing, OPM rescinded its final decision in a letter dated
March 8, 2017. J.A. 17. Therein, OPM explained that,
because “[t]here appears to be administrative error on the
appellant’s retiring agency,” OPM “will allow for a belated
deposit for the service for which no military deposit was
made.” Id. Because OPM “completely rescinded its final
decision,” it moved to dismiss Wells’ appeal. Id. Wells
objected to the motion to dismiss, arguing that “she has
yet been returned to the status quo ante” because the
agency had neither provided her with an “opportunity to
buy back her military time” nor reimbursed her “for the
erroneous deductions of her annuity.” J.A. 14.
On March 21, 2017, the AJ issued an initial decision
dismissing Wells’ appeal as moot. Specifically, the AJ
explained that, because OPM “is affording [Wells] the
opportunity to make the military service deposit neces-
4 WELLS v. MSPB
sary to receive retirement service credit for the periods of
military service for which she did not make a pre-
retirement deposit,” Wells received all the relief she
would have received if the matter had been adjudicated
and she had prevailed. Final Decision, 2017 WL 1148081,
at *1.
Because Wells did not petition the Board to review the
AJ’s initial decision, it became the final decision of the
Board. Wells timely appealed to this court, and we have
jurisdiction pursuant to 28 U.S.C. § 1295(a)(9).
DISCUSSION
Our jurisdiction to review Board decisions is limited.
By statute, we must affirm the Board’s decision unless it
is: “(1) arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law; (2) obtained with-
out procedures required by law, rule, or regulation having
been followed; or (3) unsupported by substantial evi-
dence.” 5 U.S.C. § 7703(c). Whether the Board has juris-
diction to adjudicate an appeal is a question of law, which
we review de novo. Johnston v. Merit Sys. Prot. Bd., 518
F.3d 905, 909 (Fed. Cir. 2008). The petitioner bears the
burden of establishing the Board’s jurisdiction by a pre-
ponderance of the evidence. Fields v. Dep’t of Justice, 452
F.3d 1297, 1302 (Fed. Cir. 2006).
The Board’s jurisdiction is “determined by the nature
of an agency’s action at the time an appeal is filed with
the Board.” Fernandez v. Dep’t of Justice, 105 M.S.P.R.
443, 446 (2007). “[A]n agency’s unilateral modification of
its adverse action after an appeal has been filed cannot
divest the Board of jurisdiction unless the appellant
consents to such divestiture or unless the agency com-
pletely rescinds the action being appealed.” Harris v.
Dep’t of the Air Force, 96 M.S.P.R. 193, 195 (2004). We
have recognized that, where “an appealable action is
canceled or rescinded by an agency, any appeal from that
action becomes moot.” Cooper v. Dep’t of the Navy, 108
WELLS v. MSPB 5
F.3d 324, 326 (Fed. Cir. 1997). Dismissal of an appeal as
moot is a dismissal for lack of jurisdiction. Haskins v.
Dep’t of the Navy, 106 M.S.P.R. 616, 624 (2007).
For an appeal to be deemed moot, “the employee must
have received all of the relief that he could have received
if the matter had been adjudicated and he had prevailed.”
Fernandez, 105 M.S.P.R. at 446 (citation and quotation
marks omitted). Stated differently, the employee “must
be returned to the status quo ante and not left in a worse
position because of the cancellation than he would have
been in if the matter had been adjudicated.” Harris, 96
M.S.P.R. at 195–96.
On appeal, Wells argues that she was not restored to
the status quo ante because “OPM merely represented an
intention to rescind its Final Decision and represented
[that] Ms. Wells would receive partial relief sometime in
the future.” Pet’r Br. 6. Wells maintains that dismissing
the matter as moot without returning her to the status
quo ante “renders her without remedy if OPM fails to
take, or improperly takes, its promised actions.” Id. As
explained below, these arguments are without merit.
First, the record shows that OPM completely rescind-
ed its August 1, 2016 final decision, and that Wells will be
permitted to make a late deposit in the Civil Service
Retirement Fund. 1 OPM indicated that Wells “will be
notified under separate cover of the deposit amount owed
1 Wells cites Haskins for the proposition that
“promises of future relief through rescission are not
sufficient to render a case moot and divest the Board of
jurisdiction.” Pet’r Br. 9. Although Wells questions
whether OPM has, in fact, rescinded the final decision,
OPM’s March 8, 2017 letter to the AJ makes clear that it
has done so, and the government confirmed as much in
this appeal. Resp’t Br. 9–11.
6 WELLS v. MSPB
after the dismissal becomes final and will be given 30
days to make said deposit in full.” J.A. 17. There is no
evidence in the record that OPM will refuse to provide
Wells with the information necessary to make her deposit.
By rescinding the final decision and giving Wells an
opportunity to make the post-separation deposit, OPM
provided her with all the relief she would be entitled to
had she prevailed before the Board. See Fernandez, 105
M.S.P.R. at 446.
Second, Wells cites no relevant authority for her sug-
gestion that the Board should have retained jurisdiction
over her appeal, and that its failure to do so divested her
of a “potential remedy should OPM fail to take the actions
necessary to restore her to the status quo ante.” Pet’r Br.
14. To the contrary, as the government explains, once
OPM issues its decision informing Wells of the amount
she must pay into the retirement fund for her post-1956
military service, “she will have the opportunity to request
reconsideration of that decision if she disagrees with it
and the right to appeal any OPM reconsideration decision
to the [Board].” Resp’t Br. 12.
Because OPM rescinded its final decision, there is no
final decision from which to appeal, no decision for the
Board to review, and no grounds for the Board to retain
jurisdiction. See Glasgow v. Office of Pers. Mgmt., 103
M.S.P.R. 531, 533 (2006) (“If OPM completely rescinds a
reconsideration decision, the Board no longer retains
jurisdiction over the appeal in which that reconsideration
decision is at issue, and the appeal must be dismissed.”).
In these circumstances, the Board did not err in dismiss-
ing Wells’ appeal. We expect, however, that OPM will act
promptly in notifying Wells of the deposit amount owed
and giving her thirty (30) days to make that deposit, as
promised in OPM’s March 8, 2017 letter.
WELLS v. MSPB 7
CONCLUSION
For the foregoing reasons, and because we find Wells’
remaining arguments are without merit, we affirm the
Board’s final decision.
AFFIRMED
COSTS
No costs.