Randall M. Zelznick v. Office of Personnel Management

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
RANDALL M. ZELZNICK, DOCKET NUMBER
Appellant, PH-0845-16-0129-I-1
v.
OFFICE OF PERSONNEL DATE: September 2, 2016
MANAGEMENT,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Randall M. Zelznick, Brookhaven, Pennsylvania, pro se.
Kristopher L. 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 for lack jurisdiction his appeal of an Office of Personnel Management
(OPM) reconsideration decision finding that he had received an overpayment of
disability retirement annuity benefits under the Federal Employees’ Retirement
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
System (FERS). 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 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 and AFFIRM the initial decision, which is now the Board’s final
decision. 5 C.F.R. § 1201.113(b).
BACKGROUND
¶2 Effective June 10, 2010, the appellant obtained disability retirement annuity
benefits under FERS. Initial Appeal File (IAF), Tab 8 at 41, 49. In a letter dated
July 11, 2012, OPM notified the appellant that an overpayment of his annuity had
occurred and proposed a collection schedule. Id. at 48. The appellant requested
reconsideration on August 6, 2012. Id. at 10. In a reconsideration decision
issued on November 19, 2015, OPM affirmed its finding that the appellant was
overpaid $29,009.13 in disability retirement annuity benefits. Id. at 10-11.
¶3 The appellant filed an appeal of the reconsideration decision with the Board
and requested a hearing. IAF, Tab 1. OPM filed a motion to dismiss the appeal
for lack of jurisdiction because it had rescinded its reconsideration decision. IAF,
Tab 8 at 4-5. In an order to show cause, the administrative judge informed the
appellant that, although the Board no longer has jurisdiction over an appeal of an
OPM reconsideration decision when OPM rescinds its final decision, the Board
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may retain jurisdiction if OPM did not repay an appellant monies it withheld from
his annuity in satisfaction of an overpayment. IAF, Tab 9 at 1. The
administrative judge ordered the appellant to show cause why the appeal should
not be dismissed and warned him that failure to respond would result in dismissal
of the appeal. Id. at 2. The appellant did not respond to the order. IAF, Tab 10,
Initial Decision (ID) at 2.
¶4 Without holding the requested hearing, the administrative judge issued an
initial decision granting the agency’s motion and dismissing the appeal for lack of
jurisdiction. ID at 1, 3. He found that the Board no longer retained jurisdiction
over the appeal after OPM rescinded its reconsideration decision. ID at 2. He
further found that the appellant failed to provide any other basis for jurisdiction
in response to the show cause order. Id.
¶5 Subsequent to the administrative judge’s issuance of the initial decision,
OPM issued a new reconsideration decision on February 23, 2016. Petition for
Review (PFR) File, Tab 1 at 6-9. The appellant has separately filed both a Board
appeal of OPM’s February 2016 reconsideration decision, Zelznick v. Office of
Personnel Management, MSPB Docket No. PH-0845-16-0238-I-1, Initial Appeal
File, Tab 1, and a petition for review of the initial decision in the instant appeal,
PFR File, Tab 1. The agency has filed a response to the appellant’s petition for
review. PFR File, Tab 4.
¶6 Additionally, the administrative judge has dismissed the appeal of the
February 2016 reconsideration decision without prejudice to allow the Board to
first adjudicate his petition for review in the instant appeal. Zelznick v. Office of
Personnel Management, MSPB Docket No. PH-0845-16-0238-I-1, Initial
Decision (0238 ID) at 1, 3 (July 6, 2016).
DISCUSSION OF ARGUMENTS ON REVIEW
¶7 The Board’s jurisdiction is limited to those matters over which it has been
given jurisdiction by law, rule, or regulation. Maddox v. Merit Systems
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Protection Board, 759 F.2d 9, 10 (Fed. Cir. 1985). The appellant has the burden
of proving the Board’s jurisdiction by a preponderance of the evidence. 2 5 C.F.R.
§ 1201.56(b)(2)(i)(A). The Board has jurisdiction over OPM determinations
affecting an appellant’s rights or interests under FERS after OPM has issued a
final decision, known as a reconsideration decision. 5 U.S.C. § 8461(e); 5 C.F.R.
§ 841.308; see Okello v. Office of Personnel Management, 120 M.S.P.R. 498,
¶ 14 (2014) (stating that a reconsideration decision is final and appealable to the
Board). If OPM completely rescinds a reconsideration decision, its rescission
divests the Board of jurisdiction over the appeal in which that reconsideration
decision is at issue, and the appeal must be dismissed. Smith v. Office of
Personnel Management, 113 M.S.P.R. 259, ¶ 6 (2010).
¶8 Here, OPM asserted below that it has rescinded its November 2015
reconsideration decision. IAF, Tab 8 at 4. The appellant does not dispute this
assertion on review. Instead, he challenges OPM’s reason for rescission—to
apply the set-aside rule to his case. PFR File, Tab 1 at 2; IAF, Tab 8 at 4. He
also argues that OPM rescinded its reconsideration decision in bad faith to avoid
complying with the administrative judge’s orders and to preclude jurisdiction.
PFR File, Tab 1 at 1. Even assuming the appellant’s allegations are true, we find
that they do not identify a basis for Board jurisdiction because OPM has
rescinded its November 2015 reconsideration decision and already issued a new
reconsideration decision in February 2016. PFR File, Tab 1 at 6-9; IAF, Tab 8
at 4; see Okello, 120 M.S.P.R. 498, ¶ 14 (stating that the Board will take
jurisdiction over an appeal concerning a retirement matter in which OPM has
refused or improperly failed to issue a final decision); see, e.g.,
Smith, 113 M.S.P.R. 259, ¶ 6 (finding no Board jurisdiction over OPM’s denial of
2
A preponderance of the evidence is the degree of relevant evidence that a reasonable
person, considering the record as a whole, would accept as sufficient to find that a
contested fact is more likely to be true than untrue. 5 C.F.R. § 1201.4(q).
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disability retirement benefits under the FERS after OPM rescinded the
reconsideration decision).
¶9 Although the appellant asserts on review that OPM has withheld $100 from
his annuity, OPM claims that it has refunded the $100. PFR File, Tab 1 at 2, 5,
Tab 4 at 4-5. The appellant had the opportunity to reply to OPM’s claim that it
reimbursed him, but he did not do so. See 5 C.F.R. § 1201.114(a)(4). Thus, he
has failed to meet his jurisdictional burden of identifying any other basis on
which to find that the Board retains jurisdiction over this appeal despite OPM’s
rescission. Cf. Martin v. Office of Personnel Management, 119 M.S.P.R. 188,
¶ 10 (2013) (finding that OPM did not fully rescind its final decision because, in
pertinent part, it failed to refund the appellant funds withheld in satisfaction of an
overpayment of retirement benefits). Further, we find that the appellant’s claim
that the $100 withholding and OPM repayment schedule violated his due process
rights is not a basis for Board jurisdiction over the November 2015
reconsideration decision. PFR File, Tab 1 at 2, 5.
¶10 The appellant’s remaining arguments do not provide a reason to disturb the
initial decision. He argues that it is unfair that the appeal was dismissed when he
was fully compliant with the administrative judge’s orders, but OPM was
nonresponsive and noncompliant. PFR File, Tab 1 at 1. We find that the
appellant was not compliant because he did not respond to the show cause order,
and he has failed to specify how OPM was noncompliant. ID at 2. He also
alleges that it was unfair that the administrative judge granted OPM’s motion for
an extension of time. PFR File, Tab 1 at 2; IAF, Tabs 4-5. We find that the
appellant has failed to prove that the administrative judge abused his discretion in
granting OPM’s motion. See Owens v. Department of Homeland
Security, 97 M.S.P.R. 629, ¶ 6 (2004) (stating that an administrative judge has
substantial discretion to rule on motions); 5 C.F.R. § 1201.41(b)(8). We further
find that the appellant’s conclusory allegation that the administrative judge
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violated his due process rights by dismissing the appeal is not a basis for Board
jurisdiction. PFR File, Tab 1 at 2.
¶11 Moreover, the appellant argues that OPM’s rescinding the reconsideration
decision and subsequently issuing a new reconsideration decision constitutes
“double jeopardy.” Id. Although the constitutional prohibition against double
jeopardy applies only to defendants in criminal cases and not to petitioners in
administrative proceedings before the Board, the Board has held that an agency
cannot impose disciplinary or adverse action more than once for the same
misconduct. Gartner v. Department of the Army, 104 M.S.P.R. 463, ¶ 5 (2007).
Assuming, without deciding, that this principle applies to an OPM retirement
determination, double punishment is not violated when, as here, the agency has
rescinded its prior action, made the employee whole, and commenced an “entirely
new” constitutionally correct proceeding, thus negating its prior action.
Frederick v. Department of Homeland Security, 122 M.S.P.R. 401, ¶ 15 (2015).
¶12 Finally, on review, the appellant makes several arguments on the merits of
the appeal. He argues that the set-aside rule should not apply because he was not
aware he was receiving overpayments until OPM notified him in July 2012. PFR
File, Tab 1 at 3. He further argues that he has met the criteria for a waiver of the
overpayment. Id. He also cites to Tatum v. Office of Personnel
Management, 82 M.S.P.R. 96, ¶ 21 (1999), in which the Board found that the
appellant was entitled to a waiver of recovery of an overpayment of retirement
annuity benefits based on financial hardship. PFR File, Tab 1 at 2-3. We find
that these arguments on the merits of the appeal are not relevant to the dispositive
jurisdictional issue, and thus, do not provide a reason to disturb the initial
decision. See, e.g., Sapla v. Department of the Navy, 118 M.S.P.R. 551, ¶ 7
(2012) (finding that the appellant’s arguments on the merits of her appeal were
not relevant to the jurisdictional question).
¶13 Accordingly, we find that the administrative judge properly dismissed this
appeal for lack of jurisdiction. The Board will automatically refile the
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appellant’s separate appeal of OPM’s February 2016 reconsideration decision as
detailed in the administrative judge’s July 6, 2016 initial decision. 0238 ID at 3.
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
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 U.S. 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 U.S. 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
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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.