UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

RUTH RIVERA,

Appellant,

v.

OFFICE OF PERSONNEL 

MANAGEMENT,

Agency.

DOCKET NUMBER

NY-831M-15-0136-I-1

DATE: September 28, 2015

THIS FINAL ORDER IS NONPRECEDENTIAL1

Ruth Rivera, New York, New York, pro se.

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 1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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

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). 

¶2 In this appeal, the appellant challenged a reconsideration decision issued by 

the Office of Personnel Management (OPM) regarding an alleged overpayment of 

her discontinued service annuity following her reemployment by the Internal 

Revenue Service (IRS). Initial Appeal File (IAF), Tab 1. OPM subsequently 

rescinded its reconsideration decision and moved for the administrative judge to 

dismiss the appeal. IAF, Tab 10. The administrative judge granted OPM’s 

motion and dismissed the appeal for lack of jurisdiction. IAF, Tab 16, Initial 

Decision (ID). 

¶3 In her timely-filed petition for review, the appellant challenges the 

administrative judge’s statement that she failed to submit a reply to OPM’s claim

that it had refunded the amount it had withheld from her annuity. Petition for 

Review (PFR) File, Tab 1 at 1; see IAF, Tab 15; ID at 2. The appellant claims 

that she submitted a reply to OPM’s response, and she includes a copy, as well as

U.S. Postal Service tracking documents indicating that her reply was delivered to 

the regional office on July 6, 2015, 1 day before the administrative judge issued 

her initial decision. PFR File, Tab 1 at 1, 4-7. OPM responds in opposition to 

the appellant’s petition for review. PFR File, Tab 4. 
3

¶4 Although it appears that the regional office may have received the 

appellant’s reply to OPM’s response to the administrative judge’s June 23, 2015 

order, and the appellant’s submission indicates that OPM stopped offsetting the 

appellant’s annuity and refunded the $100.10 it had deducted so far, 2 it is not 

pertinent to the jurisdictional issue as it does not address OPM’s rescission of its 

reconsideration decision. PFR File, Tab 1 at 4-5. Whether OPM had refunded 

the amount it had withheld from the appellant’s annuity does not change the fact 

that it rescinded its reconsideration decision. IAF, Tab 10; ID at 1. 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. E.g., Frank v. Office of Personnel Management, 

113 M.S.P.R. 164, ¶ 8 (2010). In its motion to rescind, OPM asserts that once the 

appeal is dismissed, it will review the overpayment, IAF, Tab 10 at 4, and 

presumably issue a new reconsideration decision, from which the appellant may 

appeal.

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

 2 The appellant also alleges that OPM has not reimbursed the amounts withheld from 

her annuity between June 1, 2012, and April 30, 2014, following her reemployment 

with the IRS. PFR File, Tab 1 at 5; see IAF, Tab 12 at 1-2. She also asserts that both 

OPM and the Department of the Treasury are trying to collect the overpayment and are 

using different amounts. Id.; see IAF, Tab 12 at 1-2, Tab 9 at 3. Nevertheless, for the 

reasons cited above, in the absence of a final reconsideration decision from OPM, the 

Board is without jurisdiction to hear this appeal. 
4

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 appeal to 

the United States 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
5

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