                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     RANDALL M. ZELZNICK,                            DOCKET NUMBER
                  Appellant,                         PH-0845-16-0129-I-1

                  v.

     OFFICE OF PERSONNEL                             DATE: September 2, 2016
       MANAGEMENT,
                   Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Randall M. Zelznick, Brookhaven, Pennsylvania, pro se.

           Kristopher L. Rogers, Washington, D.C., for the agency.


                                           BEFORE

                              Susan Tsui Grundmann, Chairman
                                 Mark A. Robbins, Member


                                       FINAL ORDER

¶1        The appellant has filed a petition for review of the initial decision, which
     dismissed for lack jurisdiction his appeal of an Office of Personnel Management
     (OPM) reconsideration decision finding that he had received an overpayment of
     disability retirement annuity benefits under the Federal Employees’ Retirement


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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     System (FERS). Generally, we grant petitions such as this one only when: 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 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. See 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         Effective June 10, 2010, the appellant obtained disability retirement annuity
     benefits under FERS. Initial Appeal File (IAF), Tab 8 at 41, 49. In a letter dated
     July 11, 2012, OPM notified the appellant that an overpayment of his annuity had
     occurred and proposed a collection schedule. Id. at 48. The appellant requested
     reconsideration on August 6, 2012.       Id. at 10.   In a reconsideration decision
     issued on November 19, 2015, OPM affirmed its finding that the appellant was
     overpaid $29,009.13 in disability retirement annuity benefits. Id. at 10-11.
¶3         The appellant filed an appeal of the reconsideration decision with the Board
     and requested a hearing. IAF, Tab 1. OPM filed a motion to dismiss the appeal
     for lack of jurisdiction because it had rescinded its reconsideration decision. IAF,
     Tab 8 at 4-5. In an order to show cause, the administrative judge informed the
     appellant that, although the Board no longer has jurisdiction over an appeal of an
     OPM reconsideration decision when OPM rescinds its final decision, the Board
                                                                                        3

     may retain jurisdiction if OPM did not repay an appellant monies it withheld from
     his annuity in satisfaction of an overpayment.           IAF, Tab 9 at 1.        The
     administrative judge ordered the appellant to show cause why the appeal should
     not be dismissed and warned him that failure to respond would result in dismissal
     of the appeal. Id. at 2. The appellant did not respond to the order. IAF, Tab 10,
     Initial Decision (ID) at 2.
¶4         Without holding the requested hearing, the administrative judge issued an
     initial decision granting the agency’s motion and dismissing the appeal for lack of
     jurisdiction. ID at 1, 3. He found that the Board no longer retained jurisdiction
     over the appeal after OPM rescinded its reconsideration decision. ID at 2. He
     further found that the appellant failed to provide any other basis for jurisdiction
     in response to the show cause order. Id.
¶5         Subsequent to the administrative judge’s issuance of the initial decision,
     OPM issued a new reconsideration decision on February 23, 2016. Petition for
     Review (PFR) File, Tab 1 at 6-9. The appellant has separately filed both a Board
     appeal of OPM’s February 2016 reconsideration decision, Zelznick v. Office of
     Personnel Management, MSPB Docket No. PH-0845-16-0238-I-1, Initial Appeal
     File, Tab 1, and a petition for review of the initial decision in the instant appeal,
     PFR File, Tab 1. The agency has filed a response to the appellant’s petition for
     review. PFR File, Tab 4.
¶6         Additionally, the administrative judge has dismissed the appeal of the
     February 2016 reconsideration decision without prejudice to allow the Board to
     first adjudicate his petition for review in the instant appeal. Zelznick v. Office of
     Personnel    Management, MSPB        Docket    No.   PH-0845-16-0238-I-1,     Initial
     Decision (0238 ID) at 1, 3 (July 6, 2016).

                      DISCUSSION OF ARGUMENTS ON REVIEW
¶7         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
                                                                                          4

     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. 2 5 C.F.R.
     § 1201.56(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, its rescission
     divests the Board of jurisdiction over the appeal in which that reconsideration
     decision is at issue, and the appeal must be dismissed.          Smith v. Office of
     Personnel Management, 113 M.S.P.R. 259, ¶ 6 (2010).
¶8        Here, OPM asserted below that it has rescinded its November 2015
     reconsideration decision. IAF, Tab 8 at 4. The appellant does not dispute this
     assertion on review.     Instead, he challenges OPM’s reason for rescission—to
     apply the set-aside rule to his case. PFR File, Tab 1 at 2; IAF, Tab 8 at 4. He
     also argues that OPM rescinded its reconsideration decision in bad faith to avoid
     complying with the administrative judge’s orders and to preclude jurisdiction.
     PFR File, Tab 1 at 1. Even assuming the appellant’s allegations are true, we find
     that they do not identify a basis for Board jurisdiction because OPM has
     rescinded its November 2015 reconsideration decision and already issued a new
     reconsideration decision in February 2016. PFR File, Tab 1 at 6-9; IAF, Tab 8
     at 4; see Okello, 120 M.S.P.R. 498, ¶ 14 (stating that the Board will take
     jurisdiction over an appeal concerning a retirement matter in which OPM has
     refused   or   improperly   failed   to   issue   a   final   decision);   see,   e.g.,
     Smith, 113 M.S.P.R. 259, ¶ 6 (finding no Board jurisdiction over OPM’s denial of



     2
      A preponderance of the evidence is the degree of relevant evidence that a reasonable
     person, considering the record as a whole, would accept as sufficient to find that a
     contested fact is more likely to be true than untrue. 5 C.F.R. § 1201.4(q).
                                                                                          5

      disability retirement benefits under the FERS after OPM rescinded the
      reconsideration decision).
¶9          Although the appellant asserts on review that OPM has withheld $100 from
      his annuity, OPM claims that it has refunded the $100. PFR File, Tab 1 at 2, 5,
      Tab 4 at 4-5. The appellant had the opportunity to reply to OPM’s claim that it
      reimbursed him, but he did not do so. See 5 C.F.R. § 1201.114(a)(4). Thus, he
      has failed to meet his jurisdictional burden of identifying any other basis on
      which to find that the Board retains jurisdiction over this appeal despite OPM’s
      rescission. Cf. Martin v. Office of Personnel Management, 119 M.S.P.R. 188,
      ¶ 10 (2013) (finding that OPM did not fully rescind its final decision because, in
      pertinent part, it failed to refund the appellant funds withheld in satisfaction of an
      overpayment of retirement benefits). Further, we find that the appellant’s claim
      that the $100 withholding and OPM repayment schedule violated his due process
      rights is not a basis for Board jurisdiction over the November 2015
      reconsideration decision. PFR File, Tab 1 at 2, 5.
¶10         The appellant’s remaining arguments do not provide a reason to disturb the
      initial decision. He argues that it is unfair that the appeal was dismissed when he
      was fully compliant with the administrative judge’s orders, but OPM was
      nonresponsive and noncompliant.         PFR File, Tab 1 at 1.      We find that the
      appellant was not compliant because he did not respond to the show cause order,
      and he has failed to specify how OPM was noncompliant.            ID at 2.    He also
      alleges that it was unfair that the administrative judge granted OPM’s motion for
      an extension of time. PFR File, Tab 1 at 2; IAF, Tabs 4-5. We find that the
      appellant has failed to prove that the administrative judge abused his discretion in
      granting   OPM’s     motion.      See    Owens    v.   Department     of     Homeland
      Security, 97 M.S.P.R. 629, ¶ 6 (2004) (stating that an administrative judge has
      substantial discretion to rule on motions); 5 C.F.R. § 1201.41(b)(8). We further
      find that the appellant’s conclusory allegation that the administrative judge
                                                                                             6

      violated his due process rights by dismissing the appeal is not a basis for Board
      jurisdiction. PFR File, Tab 1 at 2.
¶11         Moreover, the appellant argues that OPM’s rescinding the reconsideration
      decision and subsequently issuing a new reconsideration decision constitutes
      “double jeopardy.” Id. Although the constitutional prohibition against double
      jeopardy applies only to defendants in criminal cases and not to petitioners in
      administrative proceedings before the Board, the Board has held that an agency
      cannot impose disciplinary or adverse action more than once for the same
      misconduct. Gartner v. Department of the Army, 104 M.S.P.R. 463, ¶ 5 (2007).
      Assuming, without deciding, that this principle applies to an OPM retirement
      determination, double punishment is not violated when, as here, the agency has
      rescinded its prior action, made the employee whole, and commenced an “entirely
      new” constitutionally correct proceeding, thus negating its prior action.
      Frederick v. Department of Homeland Security, 122 M.S.P.R. 401, ¶ 15 (2015).
¶12         Finally, on review, the appellant makes several arguments on the merits of
      the appeal. He argues that the set-aside rule should not apply because he was not
      aware he was receiving overpayments until OPM notified him in July 2012. PFR
      File, Tab 1 at 3. He further argues that he has met the criteria for a waiver of the
      overpayment.      Id.     He   also   cites     to   Tatum   v.   Office   of   Personnel
      Management, 82 M.S.P.R. 96, ¶ 21 (1999), in which the Board found that the
      appellant was entitled to a waiver of recovery of an overpayment of retirement
      annuity benefits based on financial hardship. PFR File, Tab 1 at 2-3. We find
      that these arguments on the merits of the appeal are not relevant to the dispositive
      jurisdictional issue, and thus, do not provide a reason to disturb the initial
      decision.   See, e.g., Sapla v. Department of the Navy, 118 M.S.P.R. 551, ¶ 7
      (2012) (finding that the appellant’s arguments on the merits of her appeal were
      not relevant to the jurisdictional question).
¶13         Accordingly, we find that the administrative judge properly dismissed this
      appeal for lack of jurisdiction.        The Board will automatically refile the
                                                                                      7

appellant’s separate appeal of OPM’s February 2016 reconsideration decision as
detailed in the administrative judge’s July 6, 2016 initial decision. 0238 ID at 3.

                NOTICE TO THE APPELLANT REGARDING
                   YOUR FURTHER REVIEW RIGHTS
      You have the right to request review of this final decision by the U.S.
Court of Appeals for the Federal Circuit. You must submit your request to the
court at the following address:
                          United States Court of Appeals
                              for the Federal Circuit
                            717 Madison Place, N.W.
                             Washington, DC 20439

The court must receive your request for review no later than 60 calendar days
after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec. 27,
2012). If you choose to file, be very careful to file on time. The court has held
that normally it does not have the authority to waive this statutory deadline and
that filings that do not comply with the deadline must be dismissed. See Pinat v.
Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).
      If you need further information about your right to appeal this decision to
court, you should refer to the Federal law that gives you this right. It is found in
title 5 of the U.S. Code, section 7703 (5 U.S.C. § 7703) (as rev. eff. Dec. 27,
2012). You may read this law as well as other sections of the U.S. Code, at our
website, http://www.mspb.gov/appeals/uscode.htm.        Additional information 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, 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
                                                                                8

Circuit.   The Merit Systems Protection Board neither endorses the services
provided by any attorney nor warrants that any attorney will accept representation
in a given case.




FOR THE BOARD:                           ______________________________
                                         Jennifer Everling
                                         Acting Clerk of the Board
Washington, D.C.
