Sherry Bates v. Office of Personnel Management

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
SHERRY L. BATES, DOCKET NUMBER
Appellant, CH-831M-18-0370-I-1
v.
OFFICE OF PERSONNEL DATE: June 30, 2023
MANAGEMENT,
Agency.
THIS ORDER IS NONPRECEDENTIAL 1
Sherry L. Bates, Knoxville, Iowa, pro se.
Carla Robinson, Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
REMAND ORDER
¶1 The appellant has filed a petition for review of the in itial decision, which
dismissed for lack of jurisdiction her appeal of an Office of Personnel
Management (OPM) final decision after OPM represented that it had rescinded its
decision during the pendency of the appeal. For the reasons discussed below, we
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
GRANT the appellant’s petition for review, VACATE the initial decision, and
REMAND the case to the Central Regional Office for further adjudication in
accordance with this Remand Order.
BACKGROUND
¶2 The appellant filed a Board appeal challenging an OPM final decision,
which denied her request to waive recovery of the overpayment of her Civil
Service Retirement System (CSRS) disability retirement annuity benefits. Initial
Appeal File (IAF), Tab 1 at 3, 5, 9-10. She requested a hearing. IAF, Tab 3 at 1.
On June 19, 2018, OPM moved to dismiss the appeal for lack of jurisdiction
because it had rescinded its final decision. IAF, Tab 7 at 4. OPM represented
that, “[u]pon the dismissal of [the] appeal, it [would] review the case file and
render a new final decision and give due process accordingly.” Id. Three days
later, on June 22, 2018, 2 the administrative judge issued an initial decision,
finding that OPM’s rescission of its final decision divested the Board of
jurisdiction over the appeal. IAF, Tab 8, Initial Decision at 2.
¶3 The appellant filed a petition for review. Petition for Review (PFR) File,
Tabs 1, 8. The agency filed an untimely response. 3 PFR File, Tab 9. Because
there existed a question as to whether OPM had restored the appellant to h er
status prior to the issuance of the final decision, as required for a complete
rescission, the Office of the Clerk of the Board issued a February 7, 2019 show
cause order. PFR File, Tab 12. The parties did not respond.
2
The administrative judge scheduled a telephonic status conference for June 22, 2018.
IAF, Tab 5. It is not clear whether the administrative judge held the status conference
on that date. If he did, the appellant did not participate. Petition for Review File,
Tab 8 at 27.
3
OPM filed its response to the petition for review on October 23, 2018, four days past
the deadline of October 19, 2018. PFR File, Tabs 7-9. The Office of the Clerk of the
Board provided OPM with an opportunity to show good cause for its untimely filing, to
which OPM did not respond. PFR File, Tab 10. Thus, we have not considered OPM ’s
untimely filing. See 5 C.F.R. § 1201.114(g) (requiring late filings on review to be
accompanied by a motion showing good cause for the delay).
3
DISCUSSION OF ARGUMENTS ON REVIEW
¶4 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
Protection Board, 759 F.2d 9, 10 (Fed. Cir. 1985). Generally, the Board has
jurisdiction over OPM’s determinations affecting an appellant’s rights or interests
under CSRS only after OPM has issued a final decision. 5 U.S.C. § 8347(d);
Miller v. Office of Personnel Management, 123 M.S.P.R. 68, ¶ 7 (2015); 5 C.F.R.
§ 831.110. If OPM completely rescinds a final decision, the rescission divests the
Board of jurisdiction over the appeal in which the final decision is at issue.
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 final
decision has not been rescinded. Id., ¶ 10. Thus, the appeal remains within the
Board’s jurisdiction in the event that OPM does not repay funds it previously
withheld pursuant to an overpayment determination. Id., ¶¶ 4, 10.
¶5 Here, OPM stated below that it rescinded its final decision and that it
intended to issue a new final decision after the dismissal of this appeal. IAF,
Tab 7. The appellant’s allegations on review indicate that OPM may have made
deductions from her annuity benefits for which she was not repaid. PFR File,
Tab 8 at 4. Based on the record, it appears that OPM collected $256.47 toward
the appellant’s debt before it suspended further payments. IAF, Tab 1 at 7,
10-11. Because there is no indication that OPM afforded the appellant status quo
ante relief, we find it necessary to remand this matter to the regional office for
further development of the record on the jurisdictional issue and , if appropriate,
adjudication on the merits. See Campbell v. Office of Personnel Management,
123 M.S.P.R. 240, ¶¶ 11-12 (2016) (remanding the appeal because the Board was
unable to determine whether OPM has returned the appellant to the position in
which she would have been had the final decision not been issued). If the
administrative judge finds that OPM has repaid the withheld amount, he may once
again dismiss the appeal for lack of jurisdiction. Id., ¶ 11.
4
¶6 The appellant argues that she received untimely notice of the June 22, 2018
status conference. PFR File, Tab 8 at 6. She submitted evidence in the form of a
postmarked envelope which she alleges shows that the regional office mailed her
the initial decision on June 25, 2018, three days after the status conference was to
be held. Id. at 27-28. She raises additional arguments that concern the merits of
the appeal. PFR File, Tab 8. Because these arguments are not relevant to the
dispositive jurisdictional issue, we decline to consider them further. See Sapla v.
Department of the Navy, 118 M.S.P.R. 551, ¶ 7 (2012) (finding that an appellant’s
arguments on the merits of her appeal were immaterial to the jurisdictional
question).
ORDER
¶7 For the reasons discussed above, we REMAND this case to the Central
Regional Office for further adjudication in accordance with this Remand Order.
FOR THE BOARD: /s/ for
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.