UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

LINDA J. LONG,

Appellant,

v.

OFFICE OF PERSONNEL 

MANAGEMENT,

Agency.

DOCKET NUMBER

PH-0845-19-0107-I-1

DATE: May 21, 2024

THIS FINAL ORDER IS NONPRECEDENTIAL1

Linda J. Long, Newark, Delaware, pro se.

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

BEFORE

Cathy A. Harris, Chairman

Raymond A. Limon, Vice Chairman

FINAL ORDER

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

dismissed her appeal for lack of jurisdiction. Generally, 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 application of the law to

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 A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

BACKGROUND

On November 21, 2017, the appellant requested reconsideration of an

Office of Personnel Management (OPM) decision finding that she had been

overpaid $48,256.00 in Federal Employees’ Retirement System (FERS) annuity

benefits. Initial Appeal File (IAF), Tab 1 at 9. On January 14, 2019, OPM issued

a reconsideration decision affirming its calculation of the overpayment and

denying the appellant’s request for a waiver. Id. at 9-13. OPM indicated that it

had collected $344.19 of the overpayment and would collect the balance

($47,911.81) in 935 monthly installments of $51.23 plus one installment of

$11.76, beginning with the appellant’s April 1, 2019 annuity payment check. Id.

at 13.

On January 28, 2019, the appellant filed a Board appeal contesting OPM’s

reconsideration decision. Id. at 1-7. On February 8, 2019, OPM moved to

dismiss the appeal, stating that it had completely rescinded its January 14, 2019

final decision. IAF, Tab 4 at 4. In a filing dated February 13, 2019, OPM stated

that, once the appeal was dismissed, it would remand the case to its Legal

Reconsideration Branch for further development and the appellant would receive

a decision about her annuity overpayment. IAF, Tab 5 at 3. The following day,

2
the administrative judge issued an initial decision dismissing the appeal for lack

of jurisdiction based on OPM’s rescission of its final decision. IAF, Tab 6, Initial

Decision (ID) at 2.

The appellant has filed a petition for review in which she argues the merits

of her appeal but does not address the jurisdictional issue. Petition for Review

(PFR) File, Tab 1 at 1-4. The appellant also submits several documents with her

petition for review. Id. at 6-68. OPM has filed a brief response opposing the

petition for review. PFR File, Tab 4.

ANALYSIS

The Board’s jurisdiction is limited to those matters over which it has been

given jurisdiction by law, rule, or regulation. Maddox v. Merit Systems

Protection Board, 759 F.2d 9, 10 (Fed. Cir. 1985). The appellant has the burden

of proving the Board’s jurisdiction by a preponderance of the evidence. 5 C.F.R.

§ 1256(b)(2)(i)(A). The Board has jurisdiction over OPM determinations

affecting an appellant’s rights or interests under FERS after OPM has issued a

final decision, known as a reconsideration decision. 5 U.S.C. § 8461(e); 5 C.F.R.

§ 841.308; see Okello v. Office of Personnel Management, 120 M.S.P.R. 498,

¶ 14 (2014) (stating that a reconsideration decision is final and appealable to the

Board). If OPM completely rescinds a reconsideration decision, the rescission

divests the Board of jurisdiction over the appeal in which that 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). However, the Board has

held that, if OPM rescinds its reconsideration decision after the appellant files a

Board appeal and it is apparent that OPM does not intend to issue a new decision,

the Board retains jurisdiction to adjudicate the merits. See Triplett v. Office of

Personnel Management, 100 M.S.P.R. 571, ¶¶ 5-7 (2005).

Here, OPM asserted below that it had rescinded the reconsideration

decision and clearly indicated that it intended to issue a new decision regarding

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the appellant’s annuity overpayment. IAF, Tab 4 at 4, Tab 5 at 3. The appellant

has not suggested that OPM has not completely rescinded the reconsideration

decision or that it does not intend to issue a new decision. Accordingly, we find

that the administrative judge correctly dismissed this appeal for lack of

jurisdiction.2 ID at 2.

We decline to consider the documents that the appellant submits on review.

The appellant submits several documents with her petition for review. PFR

File, Tab 1 at 6-68. Under 5 C.F.R. § 1201.115(d), the Board will not consider

evidence submitted for the first time with a petition for review absent a showing

that it is both new and material. Two of the documents the appellant submits on

review—OPM’s October 31, 2017 decision notifying the appellant of the annuity

overpayment and OPM’s January 14, 2019 reconsideration decision—are already

part of the record below and thus are not new. Compare PFR File, Tab 1 at 10,

16-20, with IAF, Tab 1 at 9-14; see Meier v. Department of the Interior,

3 M.S.P.R. 247, 256 (1980) (stating that evidence that is already a part of the

record is not new). Moreover, all of the documents the appellant submits on

review are immaterial to the dispositive jurisdictional issue and would not

warrant an outcome different from that of the initial decision. See Russo v.

Veterans Administration, 3 M.S.P.R. 345, 349 (1980) (stating that the Board will

not grant a petition for review based on new evidence absent a showing that it is

of sufficient weight to warrant an outcome different from that of the initial

decision). Therefore, we have not considered these documents.

2

 As the administrative judge properly noted in the initial decision, the appellant may

file an appeal of OPM’s new reconsideration decision if she is dissatisfied with it. ID

at 2; see 5 C.F.R. § 831.110.

4
NOTICE OF APPEAL RIGHTS3

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: 

3

 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
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

6
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

7
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.4 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. 

4

 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. 

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: ______________________________

Gina K. Grippando

Clerk of the Board

Washington, D.C.

9