Sharon E. Knight v. Office of Personnel Management

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
SHARON E. KNIGHT, DOCKET NUMBER
Appellant, NY-0845-16-0194-I-1
v.
OFFICE OF PERSONNEL DATE: November 17, 2016
MANAGEMENT,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Sharon E. Knight, Hempstead, New York, pro se.
Sarah Murray, 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. 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
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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 judg es 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
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 involv ed 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. Except as expressly MODIFIED by
this Final Order to address the agency’s response to the Board’s August 15, 2016
Order to Show Cause, we AFFIRM the initial decision.
DISCUSSION OF ARGUMENTS ON REVIEW
¶2 On October 10, 2015, the appellant requested reconsideration of an Office
of Personnel Management (OPM) decision that she had been overpaid $11,040.80
in Federal Employees’ Retirement System annuity benefits. Initial Appeal File
(IAF), Tab 1 at 11. On February 26, 2016, OPM issued a reconsideration
decision affirming its calculation of the overpayment and denying the appellant’s
request for a waiver. Id. at 11-13. OPM indicated that it would collect the
overpayment in 73 monthly installments of $150.00, plus 1 installment of $90.80,
beginning with the appellant’s June 1, 2016 annuity payment check. Id. at 13.
¶3 On March 7, 2016, the appellant filed a Board appeal contesting OPM ’s
reconsideration decision. Id. at 1-11. On April 13, 2016, OPM moved to dismiss
the appeal, stating that it had “decided to rescind the February 25, 2016 final
decision.” IAF, Tab 7 at 4. OPM further represented that, after the appellant’s
appeal was dismissed, it would render a new final decision. Id. Thereafter, on
May 10, 2016, the administrative judge issued an initial decision dismissing the
appeal for lack of jurisdiction based on OPM’s representation that it had
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rescinded the February 25, 2016 reconsideration decision. IAF, Tab 9, Initial
Decision (ID).
¶4 The appellant filed a timely petition for review of the initial decision , in
which, among other things, she contended that, despite OPM’s representation that
it rescinded the reconsideration decision, OPM began collecting the overpayment,
and withheld $150.00 from her June 1, 2016 annuity payment check. Petition for
Review (PFR) File, Tab 1 at 1. With her petition for review, the appellant
submitted a printout from OPM’s website regarding her annuity statement for the
“pay period ending” June 1, 2016, which indicated a deduction of $150.00 for
“Collection of Annuity Overpayment.” 2 Id. at 4. OPM responded to the petition
for review, but did not address the appellant’s contention that it began collecting
the overpayment after the initial decision was issued. PFR File, Tab 3.
¶5 When 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). 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. In the instant appeal, because the appellant’s evidence and argument on
review raised a question as to whether OPM had restored the appellant to the
status quo ante, on August 15, 2016, the Board issued a show cause order
directing OPM to submit additional evidence and argument on this issue and
directing the appellant to respond to OPM’s submission. PFR File, Tab 4. OPM
2
The appellant also submitted copies of a pleading that she filed below, the initial
decision, and an order issued by the administrative judge. Id. at 6-18; see IAF, Tab 3
at 1.
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timely responded to the show cause order, but the appellant did not respond. 3
PFR File, Tab 6.
¶6 In its response to the show cause order, OPM explained that it erroneously
withheld $150.00 from the appellant’s June 2016 annuity payment after
rescinding the reconsideration decision. Id. at 4. OPM provided evidence that,
after realizing its error, on June 16, 2015, it refunded the $150.00 to the
appellant. Id. at 4, 6. The appellant has not disputed these assertions.
¶7 Based on our review of OPM’s submissions, we find that OPM has
completely rescinded its reconsideration decision and restored the appe llant 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 Board
lacks jurisdiction over the instant appeal. See Rorick v. Office of Personnel
Management, 109 M.S.P.R. 597, ¶ 5 (2008).
¶8 The appellant’s remaining arguments on review regarding the merits of the
rescinded reconsideration decision and concerns about reprisal by OPM are not
relevant to the dispositive jurisdictional issue, and thus, do not provide a reason
to disturb the initial decision. PFR File, Tab 1 at 1-2; see, e.g., Sapla v.
Department of the Navy, 118 M.S.P.R. 551, ¶ 7 (2012) (finding that an appellant’s
arguments on review regarding the merits of an agency action were not relevant
to whether the Board had jurisdiction over an appeal). Accordingly, we affirm
the initial decision.
¶9 However, as noted above, OPM has indicated that it intends to issue a new
reconsideration decision concerning the alleged overpayment. IAF, Tab 7 at 4.
Therefore, although OPM’s rescission of its February 26, 2016 reconsideration
decision divests the Board of jurisdiction over this appeal, the issues on appeal
are not moot because it is possible that OPM will renew its collection efforts in
3
Although the appellant did not respond to the show cause order, she registered as an
e-filer after the show cause order was issued. PFR File, Tab 7.
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the future. See Rorick, 109 M.S.P.R. 597, ¶ 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. 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
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
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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: ______________________________
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.