UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION 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 NONPRECEDENTIAL1

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1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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

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

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. 

BACKGROUND

¶2 The Office of Personnel Management (OPM) issued a reconsideration 

decision on September 27, 2016, affirming its 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 11. 

¶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 jurisdiction.” 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 administrative judge granted OPM’s motion and 
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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 ARGUMENTS ON REVIEW

¶5 On review, the appellant does not address the administrative judge’s finding 

that the Board has no jurisdiction over this appeal. Instead, he submits medical 

documentation and asserts that he did not know that he needed to file 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. He 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 Personnel 

Management, 120 M.S.P.R. 498, ¶¶ 13-14 (2014); 5 C.F.R. § 841.308. 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, and the appeal must be dismissed. Martin v. Office of Personnel 

Management, 119 M.S.P.R. 188, ¶ 8 (2013). Here, OPM asserted that it had 

completely rescinded the final decision and intended to issue a new decision 

regarding the alleged overpayment. IAF, Tab 6 at 4. The appellant did not 
4

dispute these contentions below or on review, despite being explicitly 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; see Boughton v. Department of Agriculture, 

94 M.S.P.R. 347, ¶¶ 5‐6 (2003) (finding 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 argues 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 the 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 As 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 RIGHTS2

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 which option is most appropriate in any matter.
5

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: 

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 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. ____ , 137 S. Ct. 1975 (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 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 
7

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 

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. 3The 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 on 
8

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.

 

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. 
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/CourtWebsites.aspx.

FOR THE BOARD:

Washington, D.C.

 /s/ for 

Jennifer Everling

Acting Clerk of the Board