UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD

KENNETH JUNIUS,

Appellant,

v.
OFFICE OF PERSONNEL MANAGEMENT,

Agency. DOCKET NUMBER DA

- 0845

- 17

- 0031

- I

- 1

DATE: June 29, 2022



### THIS FINAL ORDER IS NONPRECEDENTIAL 1

Kenneth Junius , New Orleans, Louisiana, pro se.

Jane Bancroft , Washington, D.C., for the agency.

BEFORE Cathy A. Harris
, Vice Chairman Raymond A. Limon
, Member Tristan L. Leavitt , Member

FINAL ORDER ¶1 The appellant has f iled a petition for review of the initial decision, which
dismissed his Federal Employees ’ Retirement System (FERS) overpayment appeal for lack of jurisdiction. Generally, we grant petitions such as this one only in the following circumstances: the initi al decision contains erroneous findings

1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not require d to follow or distinguish them in any future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

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 eith er 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

.

BACKGROUND ¶2 The Office of Personnel Management (OPM) issued a reconsideration
decision on September 27, 2016, affirming i ts calculation of a $29,906 overpayment in FERS annuity benefits and denying the appellant’s request for a
waiver

. Initial Appeal File (IAF), Tab 1 at 8

- 11

. Based on a finding of financial hardship, OPM adjusted the repayment schedule and indicated that it would collect the overpayment in 664 monthly installments of $45, plus a final installment of $26 , beginning with the appellant’s annuity payment check dated January 1, 2017

. Id

. at 1 1

. ¶3 The appellant filed an appeal with the Board on October 17, 2016
, contesting OPM’s reconsideration decision. IAF, Tab 1. OPM filed a motion to dismiss the appeal on November 15, 2016
, stating that it had “ rescinded the decision under appeal, [and] there no longer remains any matter over which the Board retains jurisd iction.” IAF, Tab 6 at 4. OPM also stated that it would cease all collection attempts and issue a new decision after further review of the amount of the overpayment. Id

. The a dministrative judge granted OPM’ s mot i on and3

dismissed the appeal for lack of jurisdiction based on his finding that OPM had completely rescinded the final decision. IAF, Tab 9, Initial Decision (ID) at 2

. ¶4 The appellant has filed a petition for review, arguing the merits of his appeal. Petition for Review (PFR) File, Tab 1. The agency has responded to his petition. PFR File, Tab 6.

DISCUSSION OF ARGUME NTS ON REVIEW ¶5 On review, the appellant does not address the administrative judge’s finding that the Board has no jurisdiction over this appeal . Ins t ead, h e submits medical
documentation and asserts that he did not know that he needed to fi le this evidence on appeal below

. PFR File, Tab 1 at 3, Tab 3. He also submits evidence and argument that he is in debt because of his election to take disability retirement. PFR File, Tab 1 at 4, 6

- 9. H e contends that he did not understand how the disability retirement system works or that the money he received was not
his. Id

. at 4. He further states that he only applied for disability retirement
because the Postal Service threatened him with removal based on his absences
from an on

- the

- job injury

. Id

. at 3

- 4. For the reasons discussed below, we find that the administrative judge properly dismissed this appeal for lack of jurisdiction. ¶6 The Board has jurisdiction over OPM determinations affecting an appellant’s rights or interests under FERS after OPM has issued a fina l or
reconsideration decision. 5 U.S.C. § 8461 (e)(1); Okello v. Office of Pe rsonnel Management , 120 M.S.P.R. 498 , ¶ ¶ 13

- 14 (2014) ; 5 C.F.R. § 8 41.308

. If OPM completely rescinds the reconsideration decision, however, the rescission divests the Board of jurisdiction over the appeal in which the reconsideration decision is at issue, an d the appeal must be dismissed. Martin v. Office of Personn el Management , 119 M.S.P.R. 188 , ¶ 8 ( 2013). Here, OPM asserted that it had completely resci nded the final decision and int ended to issue a new decision regarding the alleged overpayment

. IAF, Tab 6 at 4. The appellant did not4

dispute these contentions below or on review, despite being expli citly informed by OPM’s motion and the initial decision that such rescission divests the Board of jurisdiction. ID at 3 ; IAF, Tab 6 at 4 ; s ee Boughton v. Department of Agriculture
, 94 M.S.P.R. 347 , ¶¶ 5

‐ 6 (2003) (f inding it sufficient that an agency’s motion to dismiss or an initial decision put the appellant on notice of the Board’ s jurisdictional requirements , providing him with an opportunity to meet his burden
on review ). Rather, the appellant a rgues the merits of his appeal, which is immaterial to the jurisdictional issue before the Board on review. PFR File,
Tab 1 at 3

- 4 ; see Sapla v. Department of the Navy
, 118 M.S.P.R. 551 , ¶ 7 (2012) (finding that an appellant’s arguments concerning defamation and the basis for the agency’s withdrawal of a job offer were not relevant to issue of the Board’s jurisdiction over the agency’s withdrawal of t he job offer, the issue currently before the Board) . We therefore affirm the administrative judge’s decision to
dismiss this appeal for lack of jurisdiction. ¶7 A s noted above, OPM indicated that it intends to issue a new decision concerning the alleged overpayment. IAF, Tab 6 at 4. The dismissal of this appeal does not preclude the appellant from filing another appeal if he disagrees with OPM’s new reconsideration decision

. Franklin v. Office of Personnel Management , 62 M.S.P.R. 168 , 169

- 70 (1994)

. The appellant must file any future appeal within the limits set forth in the Board’s regulations. Id

. ; see 5 C.F.R. § 1201.22

. Because the appellant’s arguments on review present no basis to disturb the initial decision, we deny his petition for review.

NOTICE OF APPEAL RIGHTS 2 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

2 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 w hich option is most appropriate in any matter.5

review and the appropriate forum with which t o 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 appropriat e 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 applica ble 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 choice s 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 add ress: 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 particu lar 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 11.6

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 p rovided 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.

____ , 137 S. Ct. 1975 (2017). If you have a representative in this case, and your representative receives this decision before you do, th en 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 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 the ir 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 the7

EEOC’s Office of Federal Op erations 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, t hen 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 Employ ment 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 Opp ortunity 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 disposition of allegations of a prohibited personne l practice described in
section 2302(b) other than practices described in se ction 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. 3 The court of appeals must receive your

3 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 on8

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

Add itional 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 cou rt’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 reg arding 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.

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 cou rt of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115

- 195, 132 Stat. 1510.9

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/CourtWeb sites.aspx

.

FOR THE BOARD:

Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board