UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

THOMAS D. COOGAN,

Appellant,

v.

OFFICE OF PERSONNEL 

MANAGEMENT,

Agency.

DOCKET NUMBER

DC-831M-17-0400-I-1

DATE: January 23, 2023

THIS FINAL ORDER IS NONPRECEDENTIAL1

Thomas D. Coogan, Bethesda, Maryland, pro se.

Michael Shipley, 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 retirement 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 

 

1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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

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(b). 

BACKGROUND

¶2 The appellant filed an appeal of a February 27, 2017 reconsideration 

decision of the Office of Personnel Management (OPM) finding that he was 

overpaid $3,906.00 in civil service annuity benefits. Initial Appeal File (IAF), 

Tabs 1-2. On May 9, 2017, OPM rescinded its reconsideration decision due to a 

deficiency in its overpayment calculation. IAF, Tab 9. OPM asserted that it 

would review the file and its overpayment computation and issue a new decision. 

Id. The administrative judge issued an initial decision dismissing the appeal for 

lack of jurisdiction, finding that OPM’s rescinding its decision divested the Board 

of jurisdiction over the appeal. IAF, Tab 10.

¶3 The appellant has filed a petition for review. Petition for Review (PFR) 

File, Tab 1. OPM has opposed the appellant’s petition, and he has filed a reply. 

PFR File, Tabs 4-5. 

DISCUSSION OF ARGUMENTS ON REVIEW

¶4 The Board has jurisdiction to hear appeals of final OPM decisions under 

5 U.S.C. § 8347(d) and 5 C.F.R. § 831.110. Brown v. Office of Personnel 
3

Management, 51 M.S.P.R. 261, 263 (1991). If OPM completely rescinds its 

reconsideration decision, 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). An exception to this rule exists, however, when OPM has rescinded its 

decision but has failed to restore the appellant to the status quo ante. In such 

cases, the Board will retain jurisdiction. Id., ¶ 10.

¶5 On review, the appellant argues that the administrative judge erred in 

dismissing the appeal because at the time of the rescission on May 9, 2017, and 

the administrative judge’s initial decision on May 10, 2017, OPM had not 

refunded him $896.76, which it had collected from his annuity payments prior to 

his request for reconsideration. PFR File, Tabs 1, 5. The appellant further 

submits evidence showing that on May 12, 2017, a payment in the amount of

$896.76 was credited to his account. PFR File, Tab 5 at 5, 7. Accordingly, we 

find that OPM has completely rescinded its reconsideration decision and restored 

the appellant to the status quo ante. Because rescinding a reconsideration 

decision divests the Board of jurisdiction over an appeal in which that decision is 

at issue, the Board lacks jurisdiction over the instant appeal. See Rorick v. Office 

of Personnel Management, 109 M.S.P.R. 597, ¶ 5 (2008).

¶6 On review, the appellant appears to cite to Campbell v. Office of Personnel 

Management, 123 M.S.P.R. 240 (2016), in support of his argument that the Board 

has jurisdiction over the appeal because OPM has not restored him to the status 

quo ante. PFR File, Tab 1 at 4. Campbell, however, is distinguishable from this 

case in that the Board there found it undisputed that OPM had not refunded the 

money that it had withheld from the appellant’s deceased husband’s annuity. 

Campbell, 123 M.S.P.R. 240, ¶ 9. Here, in contrast, the appellant admits that 

OPM has refunded the money it withheld from his annuity.

¶7 The appellant also argues that OPM’s rescission letter fails to reliably 

explain what led OPM to rescind its decision or what additional work needs to be 
4

done to reconcile its errors. PFR File, Tab 1 at 4. He contends, moreover, that he 

has been prejudiced because OPM has been delaying the proceedings, appears to 

be using rescission to deal with staff shortages and avoid responding to his 

discovery requests, and can now take however long it wants to issue a new final 

determination. Id. at 5-6.

¶8 We have considered the appellant’s arguments; however, the Board lacks 

the authority to order OPM to process a request for reconsideration within a 

certain period of time. See McNeese v. Office of Personnel Management, 

61 M.S.P.R. 70, 74-75, aff’d, 40 F.3d 1250 (Fed. Cir. 1994) (Table). Further, the 

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

jurisdiction by statute or regulation, and the Board is without authority to broaden 

or narrow its appellate jurisdiction through the exercise of inherent power. Id.

at 73. In general, the Board has jurisdiction over OPM determinations affecting 

an appellant’s rights or interests under the retirement system only after OPM has 

issued a final decision; that is, a reconsideration decision. Id. at 73-74. The 

Board has recognized limited exceptions to this general rule when OPM has, in 

effect, refused to issue a reconsideration decision. Id. at 74; see, e.g., Okello v. 

Office of Personnel Management, 120 M.S.P.R. 498, ¶ 15 (2014) (finding that 

OPM’s failure to act for 6 years constituted an appealable administrative action as

the appellant diligently sought a final decision during that time period to no 

avail); Garcia v. Office of Personnel Management, 31 M.S.P.R. 160, 161 (1986)

(stating that the Board may assert jurisdiction over a retirement appeal in the 

absence of a reconsideration decision when OPM improperly fails to respond to 

the appellant’s repeated requests for a decision on his retirement application).

¶9 Under the present circumstances, we find that such an exception does not 

apply. See McNeese, 61 M.S.P.R. at 71-74 (finding a 16-month delay by OPM in 

issuing a reconsideration decision insufficient to confer Board jurisdiction). 

However, after OPM issues a new reconsideration decision, the appellant may file 

a new appeal with the appropriate Board regional office if he disagrees with that 
5

decision. 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). Alternatively, he may refile the 

appeal if he believes that OPM refuses to issue such a decision.

¶10 Accordingly, we affirm the initial decision, dismissing the appeal for lack 

of jurisdiction. 

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 

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 

 

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.
6

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 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. ____ , 137 S. Ct. 1975 (2017). If you have a 

representative in this case, and your representative receives this decision before 
7

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 

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 
8

(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.3 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. 

 

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

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

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. 

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