UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

JANET MENDEZ,

Appellant,

v.

OFFICE OF PERSONNEL 

MANAGEMENT,

Agency.

DOCKET NUMBER

AT-0845-16-0154-I-1

DATE: August 10, 2016

THIS FINAL ORDER IS NONPRECEDENTIAL1

Janet Mendez, Miami, Florida, pro se.

Roxann Johnson, 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 of jurisdiction, her appeal concerning an alleged overpayment 

of Federal Employees’ Retirement System (FERS) benefits by the Office of 

Personnel Management (OPM). Generally, we grant petitions such as this one 

 1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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

only in the following circumstances: 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. 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 The appellant previously filed two Board appeals concerning the same 

overpayment at issue in the instant appeal. The appellant’s March 31, 2013 

appeal was dismissed for lack of jurisdiction in an April 30, 2013 initial decision 

because OPM had not yet issued a reconsideration decision on the overpayment 

issue. Mendez v. Office of Personnel Management, MSPB Docket No. AT-0845-

13-0436-I-1, Initial Decision at 1-3 (Apr. 30, 2013). After receiving a 

reconsideration decision from OPM on the overpayment matter, the appellant 

filed a second Board appeal. See Mendez v. Office of Personnel Management, 

MSPB Docket No. AT-0845-15-0165-I-1. On December 16, 2014, OPM 

rescinded its reconsideration decision and moved that the appeal be dismissed for 

lack of jurisdiction. See Mendez v. Office of Personnel Management, 

MSPB Docket No. AT-0845-15-0165-I-1, Initial Decision at 2 (Dec. 16, 2014). 

The administrative judge in that appeal then dismissed the appeal for lack of 

jurisdiction because OPM had rescinded its reconsideration decision. Id. at 1-2.
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¶3 The appellant has now filed a third appeal concerning the purported 

overpayment. Initial Appeal File (IAF), Tab 1. In its response to the appeal, 

OPM asserted that there was no evidence that it had issued a new final decision, 

and therefore, there was no basis for Board jurisdiction. IAF, Tab 6 at 4. The 

appellant did not respond to OPM’s submission.

¶4 In his initial decision, the administrative judge found that OPM had not 

issued a final decision on the overpayment matter since OPM rescinded its 

reconsideration decision on December 16, 2014. IAF, Tab 7, Initial Decision (ID)

at 3. Regarding the appellant’s assertion that OPM had “done nothing” with her 

case, the administrative judge found that the delay was not so unconscionable as 

to lead to the conclusion that OPM does not intend to issue a final decision in the 

future and that OPM’s assertion that it intends to issue a reconsideration decision 

is entitled to significant weight. ID at 3-4. The administrative judge also found 

that the totality of the circumstances did not support the Board exercising

jurisdiction over the appellant’s appeal. Id. Thus, the administrative judge 

dismissed the appeal for lack of jurisdiction. ID at 4.

¶5 The appellant has filed a petition for review in which she argues only the 

merits of the overpayment matter. Petition for Review (PFR) File, Tab 1. The 

agency has filed a response in opposition to the appellant’s petition. PFR File,

Tab 4. 

DISCUSSION OF ARGUMENTS ON REVIEW

¶6 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); Wilson v. Department of 

Homeland Security, 122 M.S.P.R. 262, ¶ 2 (2015). Under 5 U.S.C. § 8461(e), the 

Board has jurisdiction to review “[a]n administrative action or order affecting the 

rights or interests of an individual” under FERS. The Board has recognized three 

situations in which OPM is deemed to have issued an appealable decision under 

the statute. Okello v. Office of Personnel Management, 120 M.S.P.R. 498, ¶ 14 
4

(2014). Two of those situations are prescribed by OPM’s regulations: OPM may 

either (1) issue a reconsideration decision under 5 C.F.R. § 841.306 or (2) issue 

an initial decision without reconsideration rights under 5 C.F.R. § 841.307. 

Either type of decision is final and appealable to the Board under 5 C.F.R. 

§ 841.308. See 5 U.S.C. § 8461(e); Okello, 120 M.S.P.R. 498, ¶ 14. The third 

situation derives from Board case law. Okello, 120 M.S.P.R. 498, ¶ 14. 

Specifically, 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. Id. The Board makes this determination by looking at the totality of 

the circumstances. Id., ¶ 15.

¶7 In this appeal, OPM rescinded its reconsideration decision on December 16, 

2014, and has not issued a new final decision. Thus, the only basis for the Board 

to exercise jurisdiction over this appeal is if OPM has refused or improperly 

failed to issue a final decision. The administrative judge concluded that this was 

not the case. ID at 3-4. 

¶8 On review, the appellant makes arguments about the merits of her appeal, 

but does not challenge the administrative judge’s determination that the Board 

lacks jurisdiction over her appeal. PFR File, Tab 1. Based on our review of the 

record, we discern no basis to disturb the initial decision. See Crosby v. U.S. 

Postal Service, 74 M.S.P.R. 98, 106 (1997) (finding no reason to disturb the 

administrative judge’s findings where she considered the evidence as a whole, 

drew appropriate inferences, and made reasoned conclusions); Broughton v. 

Department of Health & Human Services, 33 M.S.P.R. 357, 359 (1987) (same). 

Thus, we deny the petition for review and affirm the initial decision.

2

 2 The appellant may file an appeal again, consistent with the Board’s regulations, after 

OPM issues a final decision regarding the alleged overpayment of retirement benefits. 

See 5 C.F.R. § 841.308; see also 5 U.S.C. § 8461(e).
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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 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 and 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 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
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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:

Washington, D.C.

______________________________

Jennifer Everling

Acting Clerk of the Board