UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

JOHN M. LEWIS,

Appellant,

v.

OFFICE OF PERSONNEL 

MANAGEMENT,

Agency.

DOCKET NUMBER

DE-0845-18-0373-I-1

DATE: March 18, 2024

THIS ORDER IS NONPRECEDENTIAL1

John M. Lewis, El Mirage, Arizona, pro se.

Carla Robinson, Washington, D.C., for the agency.

BEFORE

Cathy A. Harris, Chairman

Raymond A. Limon, Vice Chairman

REMAND ORDER

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

dismissed his appeal challenging the Office of Personnel Management (OPM)’s

overpayment decision as withdrawn. For the reasons discussed below, we

GRANT the appellant’s petition for review, VACATE the initial decision, and

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 A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

REMAND the case to the Denver Field Office for further adjudication in

accordance with this Remand Order. 

BACKGROUND

On July 30, 2018, the appellant filed a Board appeal challenging OPM’s

decision to offset a portion of his annuity under the Federal Employees’

Retirement System (FERS) in order to collect an overpayment. Initial Appeal

File (IAF), Tab 1. On his appeal form, the appellant stated that he received a

preliminary decision from OPM on April 2, 2018, that he filed a request for

reconsideration on May 2, 2018, and that as of the date of the appeal, he had not

received a reply to his reconsideration request. Id. at 4. The appellant

subsequently sent an email to a Board email account stating that he had received a

letter from the agency informing him that it no longer intended to offset his

annuity to collect the overpayment, and as a result, he saw “no point in going

forward with the appeal, unless they decide to reopen this matter at some later

time.” IAF, Tab 2 at 1.

On August 1, 2018, the administrative judge issued an acknowledgment

order in which he summarized the above events, and concluded that it appeared

that the appellant desired to withdraw his appeal. Id. In the order, the

administrative judge informed the appellant that the withdrawal of an appeal is an

act of finality, and that once the appeal was dismissed as withdrawn, the appellant

would relinquish his right to refile his appeal. Id. at 1-2. The order stated that, if

the appellant intended to withdraw his appeal, he would not need to take any

further action and the appeal would be dismissed as withdrawn 14 days later, on

August 15, 2018. Id. at 2. If he wished to proceed with his appeal, the

administrative judge ordered the appellant to file a statement indicating so prior

to August 15, 2018. Id. After the appellant failed to respond, the administrative

judge issued an initial decision dismissing the appeal as withdrawn. IAF, Tab 4,

Initial Decision (ID) at 1-2.
3

The appellant timely filed a petition for review in which he expresses

concern that OPM may continue to pursue the overpayment offset, and requests

that his “appeal rights be reinstated.” Petition for Review (PFR) File, Tab 1. The

agency has filed a response in opposition to the petition for review. PFR File,

Tab 3. 

DISCUSSION OF ARGUMENTS ON REVIEW

When an appellant directly petitions the full Board for review of an initial

decision dismissing an appeal as withdrawn, the Board will treat the petition as a

request to reopen his appeal. Lincoln v. U.S. Postal Service, 113 M.S.P.R. 486,

¶¶ 9-13 (2010). Ordinarily, an appellant’s withdrawal of an appeal is an act of

finality that removes the appeal from the Board’s jurisdiction. Id., ¶ 7. A

voluntary withdrawal must be clear, decisive, and unequivocal. Id. Absent

unusual circumstances, such as if the appellant received misinformation or was

under mental distress at the time of withdrawal, or presents new and material

evidence on review, the Board will not reinstate an appeal once it has been

withdrawn. Id., ¶ 9; Auyong v. Department of the Navy, 97 M.S.P.R. 267, ¶ 4

(2004).

In dismissing the appeal as withdrawn, the administrative judge determined

that, while the email itself was not part of the Board record, based on the

appellant’s statements in the email expressing an interest in withdrawing, as well

as the appellant’s failure to respond to the order, the appellant’s inaction

manifested a knowing and voluntary intention to withdraw his appeal. See ID

at 2. We disagree. In expressing an interest in withdrawing his appeal, the

appellant used conditional language, stating that he did not see any point in

moving forward with his appeal, “unless [OPM] decide[s] to reopen this matter at

some later time.” IAF, Tab 2 at 1. Such an expression is predicated on the belief

that he could refile his appeal, suggesting that the appellant did not understand

that withdrawal is an act of finality. Id.; see Rose v. U.S. Postal Service,
4

106 M.S.P.R. 611, ¶ 12 (2007) (finding that the appellant’s request to withdraw

was not unequivocal when he based his withdrawal on certain conditions).

Additionally, the administrative judge dismissed the appeal as withdrawn based

solely on the appellant’s inaction and his failure to timely respond to the order,

rather than in response to an affirmative statement unequivocally confirming that

it was his intent to withdraw his appeal. 

Based on the existing record, and considering the appellant’s pro se status,

we cannot conclude that the appellant’s failure to respond to the administrative

judge’s order is the kind of clear, unequivocal, and decisive action necessary to

effectuate the withdrawal of an appeal. See Ramos v. Office of Personnel

Management, 82 M.S.P.R. 65, ¶ 7 (1999) (finding that the appellant’s mere

acquiescence to statements made by the administrative judge were not the kind of

clear and unequivocal statement necessary to effect a withdrawal).

A question remains whether the Board has jurisdiction over this appeal. 

As the administrative judge observed, and as the appellant appears to have

conceded, at the time the appellant filed his Board appeal, he had not yet received

a response from OPM regarding his reconsideration request, and thus, it appears

that OPM had not yet issued a final decision on his reconsideration request. See

IAF, Tab 1 at 4; ID at 1 n.1. The Board generally has jurisdiction over OPM

determinations affecting an appellant’s rights or interests under FERS only after

OPM has issued a final decision. McNeese v. Office of Personnel Management,

61 M.S.P.R. 70, 73-74, aff’d, 40 F.3d 1250 (Fed. Cir. 1994) (Table). However,

because the administrative judge did not apprise the appellant of his jurisdictional

burden, the appellant never received notice of what he was required to show in

order to prove Board jurisdiction over his appeal. On remand, the administrative

judge should permit the parties the opportunity to address the jurisdictional issue
5

and, if appropriate, issue an initial decision dismissing the appeal for lack of

jurisdiction.2

ORDER

For the reasons discussed above, we remand this case to the Denver Field

Office for further adjudication in accordance with this Remand Order. 

FOR THE BOARD: ______________________________

Gina K. Grippando

Clerk of the Board

Washington, D.C.

2

 If, on remand, the administrative judge dismisses the appeal for lack of jurisdiction

because OPM has not issued a final decision, the appellant is advised that he would be

entitled to file a new Board appeal of any subsequent final decision issued by OPM on

this overpayment matter. See 5 U.S.C. § 8461(e)(1); 5 C.F.R. § 841.308. Any future

appeal must be filed within the time limits set forth in the Board’s regulations. See

5 C.F.R. § 1201.22(b)(1).