UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

ALVA L. BENNETT,

Appellant,

v.

OFFICE OF PERSONNEL 

MANAGEMENT,

Agency.

DOCKET NUMBER

AT-0831-14-0001-I-1

DATE: September 30, 2014

THIS FINAL ORDER IS NONPRECEDENTIAL*

Alva L. Bennett, Ocean Springs, Mississippi, pro se.

Cynthia Reinhold, Washington, D.C., for the agency.

BEFORE

Susan Tsui Grundmann, Chairman

Anne M. Wagner, Vice Chairman

Mark A. Robbins, Member

FINAL ORDER

¶1 The appellant has filed a petition for review of the initial decision, which 

dismissed the appellant’s 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 

 * A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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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interpretation of statute or regulation or the erroneous application of the law to 

the facts of the case; the 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, and based on the following 

points and authorities, 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).

¶2 The Office of Personnel Management (OPM) issued a September 3, 2013 

reconsideration decision, which found that the appellant was overpaid $3,819.00 

in Civil Service Retirement System annuity benefits. Initial Appeal File (IAF), 

Tab 6 at 9. On September 26, 2013, the appellant filed an appeal to the Board

contesting OPM’s reconsideration decision. IAF, Tab 1. On November 6, 2013, 

OPM moved to dismiss the appeal, stating that it had rescinded its 

reconsideration decision to address the appellant’s issues. IAF, Tab 6 at 4. OPM

further stated that, once the appeal was dismissed, it would issue a new 

reconsideration decision that would include new appeal rights. Id. The 

administrative judge granted OPM’s motion and dismissed the appeal for lack of 

jurisdiction. IAF, Tab 7. 

¶3 The appellant filed a timely petition for review arguing that OPM had 

“resumed” its initial decision without issuing a new reconsideration decision

thereafter. Petition for Review (PFR) File, Tab 1. OPM filed a response in 

opposition. PFR File, Tab 4. The Board issued a show cause order instructing 

the appellant to submit evidence and argument to support his claim that OPM had 

resumed action on his case and issued a new decision. PFR File, Tab 6. The 
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appellant responded to the show cause order with a deposit record indicating that 

OPM indeed resumed annuity overpayment deductions beginning on December 1, 

2013. PFR File, Tab 7 at 11. OPM submitted a response acknowledging that it

had erroneously begun recovery of the debt but that it had terminated debt 

collection and refunded the amounts it erroneously withheld. PFR File, Tab 8 at 

4. OPM submitted records of the payments it had made to the appellant since the 

petition for review was filed. Id. at 6-8.

¶4 The Board has held that, if 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, an 

agency’s unilateral modification of its action after an appeal has been filed cannot 

divest the Board of jurisdiction unless the appellant consents to such divestiture

or unless the agency completely rescinds the action being appealed. Id. Thus, 

the Board has held that, where OPM claims to have rescinded a reconsideration 

decision but the appellant has not been restored to the status quo ante, OPM has 

not actually rescinded its final decision and the appeal remains within the Board’s 

jurisdiction. Id., ¶ 10 (citing Butler v. Office of Personnel 

Management, 46 M.S.P.R. 288, 291 (1990)). Based on OPM’s acknowledgement 

on review that it continued collecting the alleged overpayment in this case, we 

find that the appellant had not been restored to the status quo ante at the time the 

administrative judge dismissed the appeal. However, OPM’s response to the 

Board’s show cause order demonstrates that it has now completely rescinded its 

reconsideration decision and restored the appellant to the status quo ante. The 

Board therefore lacks jurisdiction over the appeal.
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NOTICE TO THE APPELLANT REGARDING

YOUR FURTHER REVIEW RIGHTS

You have the right to request review of this final decision by the United 

States 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 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 your court 

appeal, you may visit our website at http://www.mspb.gov/probono for a list of 

attorneys who have expressed interest in providing pro bono representation for 

Merit Systems Protection Board appellants before the court. The Merit Systems
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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:

Washington, D.C.

______________________________

William D. Spencer

Clerk of the Board