UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

SHELLY K. SWAIN,

Appellant,

v.

OFFICE OF PERSONNEL 

MANAGEMENT,

Agency.

DOCKET NUMBER

PH-0843-21-0162-I-1

DATE: April 19, 2024

THIS FINAL ORDER IS NONPRECEDENTIAL1

Shelly K. Swain, Martinsburg, West Virginia, pro se.

Michael Shipley, Washington, D.C., for the agency.

BEFORE

Cathy A. Harris, Chairman

Raymond A. Limon, Vice Chairman

FINAL ORDER

The agency has filed a petition for review and the appellant has filed a

cross petition for review of the initial decision, which dismissed the appeal of the

reconsideration decision issued by the Office of Personnel Management (OPM)

finding that the appellant was overpaid in survivor annuity benefits under the

Federal Employees’ Retirement System (FERS). For the reasons discussed

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 A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).
below, we GRANT the petition for review, VACATE the initial decision,

DISMISS the appeal for lack of jurisdiction, and DENY the cross petition for

review. 

BACKGROUND

The appellant filed a Board appeal of OPM’s reconsideration decision,

which found that she had been overpaid FERS survivor annuity benefits because

of a Qualified Domestic Relations Order which awarded 50% of her late

husband’s gross monthly annuity to his former spouse. Initial Appeal File (IAF),

Tab 1 at 5. During the processing of the appeal, the agency rescinded the

reconsideration decision, and requested that the appeal be dismissed. IAF, Tab 5

at 4. The administrative judge issued an initial decision dismissing the appeal on

the grounds of mootness, explaining that, because the appellant had received all

the relief sought in her appeal, the appeal was moot. 2 IAF, Tab 6, Initial Decision

(ID) at 1-2. 

The agency filed a petition for review, arguing that the appeal should have

been dismissed because of lack of jurisdiction and requesting that the initial

decision be vacated. Petition for Review (PFR) File, Tab 1 at 6-8. The appellant

filed a cross petition for review, arguing the merits of her case. PFR File, Tab 5

at 1. 

DISCUSSION OF ARGUMENTS ON REVIEW

The appeal should have been dismissed for lack of jurisdiction. The Board

has jurisdiction over determinations affecting an individual’s rights or interests

under FERS after OPM has issued a reconsideration decision. 5 U.S.C. § 8461(e)

(1); Okello v. Office of Personnel Management, 120 M.S.P.R. 498, ¶¶ 13-14

(2014); 5 C.F.R. § 841.308. If OPM completely rescinds a reconsideration

decision, the Board no longer retains jurisdiction over the appeal in which that

2

 The administrative judge stated that the agency requested the appeal be dismissed as

moot. ID at 1-2. This was a mischaracterization of the agency’s request; the agency

requested that the appeal be dismissed for lack of jurisdiction. IAF, Tab 5 at 4.

2
reconsideration decision was at issue, and the appeal must be dismissed for lack

of jurisdiction. Glasgow v. Office of Personnel Management, 103 M.S.P.R. 531,

¶ 5 (2006). 

In the initial decision, the administrative judge relied on Jones v. Office of

Personnel Management, 52 M.S.P.R. 195, 197 (1992), in which the Board

dismissed the appeal as moot because OPM rescinded the reconsideration

decision and found that the appellant was entitled to the annuity he sought. ID

at 2. Here, OPM has not indicated whether the appellant will be successful in her

claim regarding the overpayment, only stating that the case would undergo

“further development,” and that, if applicable, it would issue a new final decision

with Board appeal rights. IAF, Tab 1 at 5. Accordingly, because OPM has not

made a decision on whether the appellant was entitled to the relief she sought, the

appeal has not been rendered moot. See Hess v. U.S. Postal Service,

124 M.S.P.R. 40, ¶ 8 (2016) (stating that a case is moot when the issues presented

are no longer “live” or the parties lack a legally cognizable interest in the

outcome of the case). 

Thus, because the administrative judge erred in dismissing the appeal on

the grounds of mootness, we vacate the initial decision and dismiss the appeal for

lack of jurisdiction. Because we do not have jurisdiction over the appeal, we

cannot address the merits of the appellant’s case, and thus we deny the

appellant’s cross petition for review. Schmittling v. Department of the Army,

219 F.3d 1332, 1337 (Fed. Cir. 2000) (finding that the Board cannot address any

merit-based claims unless jurisdiction is established). However, upon receipt of a

new reconsideration decision from OPM, the appellant may file another appeal

with the appropriate regional office consistent with the Board’s regulations. 3

3

 Upon receipt of any such appeal, the administrative judge should consider whether it

would be appropriate to notify the former spouse, Virginia, of the appeal and afford her

the opportunity to intervene, as the outcome of the appeal may affect her rights. See

5 C.F.R. § 1201.34 (the Board’s regulation governing intervenors); Painter v. Office of

Personnel Management, 106 M.S.P.R. 385, ¶¶ 10-11 (2007) (ordering that the

deceased’s children be afforded an opportunity to intervene in the appeal because the

3
NOTICE OF APPEAL RIGHTS4

You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By

statute, the nature of your claims determines the time limit for seeking such

review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).

Although we offer the following summary of available appeal rights, the Merit

Systems Protection Board does not provide legal advice on which option is most

appropriate for your situation and the rights described below do not represent a

statement of how courts will rule regarding which cases fall within their

jurisdiction. If you wish to seek review of this final decision, you should

immediately review the law applicable to your claims and carefully follow all

filing time limits and requirements. Failure to file within the applicable time

limit may result in the dismissal of your case by your chosen forum.

Please read carefully each of the three main possible choices of review

below to decide which one applies to your particular case. If you have questions

about whether a particular forum is the appropriate one to review your case, you

should contact that forum for more information. 

(1) Judicial review in general. As a general rule, an appellant seeking

judicial review of a final Board order must file a petition for review with the U.S.

Court of Appeals for the Federal Circuit, which must be received by the court

within 60 calendar days of the date of issuance of this decision. 5 U.S.C.

§ 7703(b)(1)(A). 

If you submit a petition for review to the U.S. Court of Appeals for the

Federal Circuit, you must submit your petition to the court at the

following address: 

outcome may directly affect them). 

4

 Since the issuance of the initial decision in this matter, the Board may have updated

the notice of review rights included in final decisions. As indicated in the notice, the

Board cannot advise which option is most appropriate in any matter.

4
U.S. Court of Appeals 

for the Federal Circuit 

717 Madison Place, N.W. 

Washington, D.C. 20439 

Additional information about the U.S. Court of Appeals for the Federal

Circuit 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, 10, 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

Board neither endorses the services provided by any attorney nor warrants that

any attorney will accept representation in a given case. 

(2) Judicial or EEOC review of cases involving a claim of

discrimination. This option applies to you only if you have claimed that you

were affected by an action that is appealable to the Board and that such action

was based, in whole or in part, on unlawful discrimination. If so, you may obtain

judicial review of this decision—including a disposition of your discrimination

claims—by filing a civil action with an appropriate U.S. district court (not the

U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you

receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems

Protection Board, 582 U.S. 420 (2017). If you have a representative in this case,

and your representative receives this decision before you do, then you must file

with the district court no later than 30 calendar days after your representative

receives this decision. If the action involves a claim of discrimination based on

race, color, religion, sex, national origin, or a disabling condition, you may be

entitled to representation by a court-appointed lawyer and to waiver of any

5
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.

§ 2000e-5(f) and 29 U.S.C. § 794a. 

Contact information for U.S. district courts can be found at their respective

websites, which can be accessed through the link below: 

http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx. 

Alternatively, you may request review by the Equal Employment

Opportunity Commission (EEOC) of your discrimination claims only, excluding

all other issues. 5 U.S.C. § 7702(b)(1). You must file any such request with the

EEOC’s Office of Federal Operations within 30 calendar days after you receive

this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,

and your representative receives this decision before you do, then you must file

with the EEOC no later than 30 calendar days after your representative receives

this decision. 

If you submit a request for review to the EEOC by regular U.S. mail, the

address of the EEOC is: 

Office of Federal Operations 

Equal Employment Opportunity Commission 

P.O. Box 77960 

Washington, D.C. 20013 

If you submit a request for review to the EEOC via commercial delivery or

by a method requiring a signature, it must be addressed to: 

Office of Federal Operations 

Equal Employment Opportunity Commission 

131 M Street, N.E. 

Suite 5SW12G 

Washington, D.C. 20507 

(3) Judicial review pursuant to the Whistleblower Protection

Enhancement Act of 2012. This option applies to you only if you have raised

claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or

other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).

If so, and your judicial petition for review “raises no challenge to the Board’s

6
disposition of allegations of a prohibited personnel practice described in section

2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),

(B), (C), or (D),” then you may file a petition for judicial review either with the

U.S. Court of Appeals for the Federal Circuit or any court of appeals of

competent jurisdiction.5 The court of appeals must receive your petition for

review within 60 days of the date of issuance of this decision. 5 U.S.C.

§ 7703(b)(1)(B). 

If you submit a petition for judicial review to the U.S. Court of Appeals for

the Federal Circuit, you must submit your petition to the court at the

following address: 

U.S. Court of Appeals 

for the Federal Circuit 

717 Madison Place, N.W. 

Washington, D.C. 20439 

Additional information about the U.S. Court of Appeals for the Federal

Circuit 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, 10, 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

Board neither endorses the services provided by any attorney nor warrants that

any attorney will accept representation in a given case. 

5

 The original statutory provision that provided for judicial review of certain

whistleblower claims by any court of appeals of competent jurisdiction expired on

December 27, 2017. The All Circuit Review Act, signed into law by the President on

July 7, 2018, permanently allows appellants to file petitions for judicial review of

MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals

for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.

The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,

132 Stat. 1510. 

7
Contact information for the courts of appeals can be found at their

respective websites, which can be accessed through the link below: 

http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx. 

 

 

FOR THE BOARD: ______________________________

Gina K. Grippando

Clerk of the Board

Washington, D.C.

8