UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD

KEVIN MALONE, Appellant,

v.
OFFICE OF PERSONNEL MANAGEMENT,

Agency. DOCKET NUMBER DC

- 0845

- 21

- 0371

- I

- 1

DATE: April 27, 2022



### THIS FINAL ORDER IS NONPRECEDENTIAL 1

Kevin Malone , Washington, D.C., pro se.
Alison Pastor
, Esquire, Washington, D.C., for the agency.

BEFORE Raymond A. Limon, Vice Chair Tristan L. Leavitt, Member

FINAL ORDER ¶1 The appellant has filed a petition for review of the initial decision, which
dismissed his appeal challenging the reconsideration decision of the Office of Personnel Management (OPM) to collect an overpayment of Federal Employees’ Retirement System (FERS) annuity payments for lack of jurisdiction after OPM

1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not require d to follow or distinguish them in any future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

rescinded its reconsideration decision. Gene rally, we grant petitions such as this one only in the following circumstances: the initial decision contains erroneous findings of material fact; the initial decision is based on an erroneous interpretation of statute or regulation or the erroneous appli cation 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. Except as expressly
MODIFIED to VACATE the statement that the matter is moot , we AFFIRM the
initial decision , still dismissing the appeal for lack of jurisdiction

. ¶2 On re view, the appellant a ssert s that OPM w ithheld funds from his monthly annuity to recover the alleged overpayment even though it claimed that it had
rescinded its reconsideration decision. Petition fo r Review (PFR) File, Tab 1

at 7. The Office of the Clerk of the Board issued a Show Cause Orde r instructing the parties to provide evidence and argument regarding the appellant’s assertion

. PFR File, Tab 6 . OPM responded that it erroneously withheld funds from the appellant’s annuity each month between June and December 2021 , and that it had

susp ended the collection efforts as of December 30, 2021

. PFR File, Tab 7 at 4

. OPM filed documentation showing that it had authorized a refund of the withheld payments , totaling $4,410.70
, which wou ld be repaid to the appellant in his February 2022 annuity check. Id. at 4

- 8. The appellant has f iled two responses,
wherein he confirms that OPM withheld funds from his annuity payments . PFR File, Tab 8 at 11

. B ecause OPM has rescinded its reconsideration decision and
collection efforts have been sus pended, we agree with the administrative judge3

that the Board lacks jurisdiction over this appeal. See Glasgow v. Office of Personnel Management
, 103 M.S.P.R. 531 , ¶ 5 (2006) (stating that
, if OPM completely rescinds a reconsideration decision, the Board no longer retains jurisdiction over the appeal in which that reconsi deration decision i s at issue, and the appeal must be dismis sed). To the extent the administrative judge dismissed this appeal as moot, Initial Appeal File, Tab 11, Initial Decision at 2, we vacate that finding and clarify that
, i f OPM issues a reconsideration decision affecting the appellant’s rights or interests under FERS, he will again be able to appeal OPM’s reconsideration decision to the Board. See 5 U.S.C. § 8461 (e)(1); T a mayo v. Office of Personnel Management
, 56 M.S.P.R. 620 , 622 (1993) ; 5 C.F.R. § 841.308

. ¶3 The appellant’s remaining arguments on review do not provide a basis to disturb the initial decision. Regarding the appellant’s assertions related to the merits of a prior Board appeal against the Department of Labor and a settlement agreement that stemme d therefrom, PFR File, Tab 1 at 5

- 7 , Tabs 8

- 9 , we note that the appellant has not filed a petition for enforcement of the settlement agreement,
and we therefore do not address those assertions. The appellant has also requested that the Boar d waive the all eged overpayment. PFR File, Tab 1 at 5

- 6, 9, Tabs 8

- 9. H owever, as set forth herein , t he Board lacks jurisdiction over this
issue because OPM rescinded its reconsideration decision . Accordingly, we deny the petition for review and affirm the initial dec ision as explicitly modified herein to clarify the basis of the dismissal.

NOTICE OF APPEAL RIG HTS 2 The initial decision, as supplemented by this Final Order, constitutes the Board’s final decision in this matter. 5 C.F.R. § 1201.113 . You may obtain

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.4

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

prov ide 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 deci sion, 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 mo re 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 ava ilable at the court’s website, www.cafc.uscourts.gov. Of particular5

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 sec uring 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 befor e 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 app lies 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 di sposition 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, colo r, 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/CourtWeb sites.aspx

.6

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). Yo u 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
add ress 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 a ddressed 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 y ou 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 describe d 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 court7

of appeals of competent jurisdiction. 3 The court of appeals must r eceive 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.

3 The origi nal 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, permane ntly 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. 1510.8

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