                          UNITED STATES OF AMERICA
                       MERIT SYSTEMS PROTECTION BOARD
                                      2016 MSPB 11

                              Docket No. CH-0845-15-0605-I-1

                                    Angela Campbell,
                                        Appellant,
                                             v.
                             Office of Personnel Management,
                                         Agency.
                                     February 25, 2016

           Kory D. Stubblefield, Esquire, Springfield, Missouri, for the appellant.

           Cynthia Reinhold, Washington, D.C., for the agency.

                                         BEFORE

                              Susan Tsui Grundmann, Chairman
                                 Mark A. Robbins, Member



                                 OPINION AND ORDER

¶1         The appellant has filed a petition for review of the initial decision that
     dismissed her Federal Employees’ Retirement System (FERS) overpayment
     appeal for lack of jurisdiction. For the reasons set forth below, we GRANT the
     petition for review, VACATE the initial decision, and REMAND the appeal for
     further adjudication.

                                     BACKGROUND
¶2         The appellant is a FERS survivor annuitant.      Initial Appeal File (IAF),
     Tab 1 at 1, 16. On April 9, 2013, the Office of Personnel Management (OPM)
     issued an initial decision informing her that it had overpaid her late husband’s
                                                                                             2

     basic annuity by $13,361.90 because it neglected to reduce his annuity to account
     for the survivor benefit election. Petition for Review (PFR) File, Tab 1 at 10-11.
     OPM stated that it had collected some monies from the annuity payable to the
     appellant’s late husband in the month of his death, leaving a balance of
     $12,239.60, which it would collect by withholding in installments from the
     appellant’s survivor annuity. Id. The appellant requested reconsideration, and on
     July 14, 2015, OPM issued a final decision adjusting the collection schedule but
     declining to waive the overpayment or otherwise modify the overpayment
     amount. IAF, Tab 1 at 16-19.
¶3         The appellant filed a Board appeal, challenging OPM’s decision.                  Id.
     at 7, 9. During the pendency of the appeal, OPM informed the administrative
     judge that it had rescinded its decision, and it requested that the appeal be
     dismissed. IAF, Tab 6. The administrative judge issued an order, directing the
     appellant to show cause why her appeal should not be dismissed for lack of
     jurisdiction in light of OPM’s rescission.         IAF, Tab 7.     After the appellant
     responded, IAF, Tab 8, the administrative judge issued an initial decision finding
     that OPM completely rescinded its final decision and dismissing the appeal for
     lack of jurisdiction, IAF, Tab 9, Initial Decision.
¶4         The appellant has filed a petition for review, arguing that OPM’s rescission
     is incomplete because OPM has not refunded the money that it collected from her
     late husband’s basic annuity and that, within 1 week of issuance of the initial
     decision, OPM began withholding amounts from her survivor annuity to collect
     the overpayment. 1 PFR File, Tab 1 at 6-8. OPM has filed a response, arguing
     that it refunded the money that it withheld from the appellant’s survivor annuity


     1
       We have considered all of the evidence and argument that the parties filed for the first
     time on review because the appellant was not apprised of the dispositive jurisdictional
     issue until the initial decision was issued. See Nevins v. U.S. Postal Service,
     107 M.S.P.R. 595, ¶ 17 (2008).
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     payments and that it was authorized by statute to make withholdings from the
     appellant’s late husband’s basic annuity pending due process. PFR File, Tab 4.

                                         ANALYSIS
¶5          One way for OPM to recover a debt to the Civil Service Retirement and
     Disability Fund is by an administrative offset against a FERS annuity payment.
     5 C.F.R. §§ 845.205(a), .206(a). OPM has the authority to withhold money from
     a survivor annuity to recover an overpayment of the deceased spouse’s basic
     annuity. Simpson v. Office of Personnel Management, 96 M.S.P.R. 52, ¶¶ 7-15,
     21 (2004). Normally, OPM will not commence collection until the administrative
     review process of 5 C.F.R. § 845.204 has been completed, i.e., until OPM has
     issued a final decision and the Board has acted on any appeal of that decision.
     5 C.F.R. § 845.205(d)(1). However, 5 C.F.R. § 845.205(d)(1) provides that OPM
     may commence collection before the administrative review process has been
     completed if “failure to make an offset would substantially prejudice the
     Government’s ability to collect the debt[] and the time before the payment is to
     be made does not reasonably permit completion of the proceedings in § 845.204
     or litigation.” 2
¶6          In this case, OPM collected the amount at issue, $1,122.30, pursuant to
     these exigent collection provisions. PFR File, Tab 4 at 4-5. The fact that OPM
     was authorized to commence collection before issuing a final decision does not




     2
       Section 845.205(d)(1) also provides that, if offset begins without the completion of
     OPM’s administrative review process, that process will be completed “promptly.”
     Unfortunately, it took OPM more than 2 years to issue its final decision in this case,
     and it now represents to the Board that its administrative review process still is not
     complete. See PFR File, Tab 4 at 4; IAF, Tab 1 at 16. Regardless, because we are
     remanding for a determination of whether the Board has jurisdiction over this appeal,
     we find it unnecessary at this time to examine whether OPM’s administrative review
     process was “prompt.”
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     mean that once the final decision was issued, OPM could rescind it without
     refunding the collection and thereby divest the Board of jurisdiction. 3
¶7         If OPM completely rescinds its final decision, the Board no longer has
     jurisdiction over the appeal in which that decision is at issue. Martin v. Office of
     Personnel Management, 119 M.S.P.R. 188, ¶ 8 (2013).          A complete rescission
     requires OPM to return the appellant to the status quo ante. See id., ¶ 10. Status
     quo ante means placing the injured party, as near as possible, in the position she
     would have held had “the wrong not been committed.”               Kerr v. National
     Endowment for the Arts, 726 F.2d 730, 733 n.3 (Fed. Cir. 1984) (quoting
     Wicker v. Hoppock, 73 U.S. 94, 99 (1867)).
¶8         Thus, to rescind a final overpayment decision, OPM must, among other
     things, refund any money that it already collected from the appellant to recoup
     the alleged overpayment. See Martin, 119 M.S.P.R. 188, ¶¶ 2-5, 7, 10 (finding
     that rescission of an OPM overpayment reconsideration decision was incomplete
     where, in pertinent part, the Office of Workers’ Compensation Programs (OWCP)
     had not repaid funds it had withheld from the appellant’s workers’ compensation
     benefits at OPM’s direction); Butler v. Office of Personnel Management,
     46 M.S.P.R. 288, 292-93 (1990) (remanding to provide the appellant with the
     opportunity prove Board jurisdiction where he alleged, in pertinent part, that
     OWCP had not repaid funds withheld from his workers’ compensation benefits at
     OPM’s direction); see also Alexis v. Office of Personnel Management,
     106 M.S.P.R. 315, ¶¶ 5, 7 (2007) (dismissing as moot an appeal where OPM, in
     pertinent part, rescinded its overpayment reconsideration decision, including
     refunding withheld funds).
¶9         In this case, it is undisputed that OPM has not refunded the $1,122.30 that


     3
       In reaching this determination, we assume, without deciding, that the exigent
     collection provisions were lawful and that OPM properly invoked them.
                                                                                             5

      it withheld from the appellant’s deceased husband’s basic annuity. 4 OPM appears
      to argue that complete rescission does not require such a refund. PFR File, Tab 4
      at 4-5. For the following reasons, we find that remand is necessary because we
      are unable to make a determination as to whether OPM has provided status quo
      ante relief.
¶10          Although OPM withheld the $1,122.30 from the appellant’s late husband’s
      basic annuity payment before it issued the final decision under appeal, that
      withholding was based on the same overpayment determination underlying the
      final decision.    IAF, Tab 1 at 16-19; PFR File, Tab 1 at 10-11.             Complete
      rescission of the decision and a return to the status quo ante requires OPM to
      refund that money to the appellant if she has an interest in it under FERS.
      Cf. 5 U.S.C. § 8461(e)(1) (providing for Board appeals of OPM determinations
      affecting an individual’s rights or interests under FERS); Miller v. Office of
      Personnel Management, 123 M.S.P.R. 68, ¶ 11 (2015) (observing in an appeal
      arising under the Civil Service Retirement System that the Board’s jurisdiction
      over retirement matters generally derives from an appellant’s rights or interests
      under Federal retirement law); 5 C.F.R. § 1201.3(a)(2).
¶11          It appears likely that the appellant has such an interest in all or some of her
      late husband’s accrued but unpaid annuity. OPM is to distribute such amounts to
      the beneficiary properly designated by the annuitant. 5 U.S.C. § 8424(d), (g). If
      there is no such beneficiary, payment is made to the widow or widower of the
      deceased former employee.       5 U.S.C. § 8424(d).      Because the record does not
      reflect whether the appellant’s late husband made a designation for his accrued
      but unpaid annuity, we cannot determine whether OPM has returned the appellant


      4
        In addition, OPM withheld one monthly installment from the appellant’s survivor
      annuity after the initial decision was issued. PFR File, Tab 1 at 7, 12, Tab 4 at 5-6.
      OPM asserts that it did so in error and that it refunded that money to the appellant. PFR
      File, Tab 4 at 5-7. The appellant does not dispute OPM’s assertion.
                                                                                      6

      to the position in which she would have been had the final decision not been
      issued. If the administrative judge finds that the appellant has no entitlement to
      the $1,122.30, then she may determine that OPM has afforded status quo ante
      relief, and once again dismiss the appeal for lack of jurisdiction. 5 See 5 U.S.C.
      § 8442(d)(1) (providing that, as applicable here, a widow’s survivor annuity
      “commences on the day after the death of the individual on whose service such
      annuity is based”).

                                           ORDER
¶12         We remand this appeal for further adjudication consistent with this Opinion
      and Order.




      FOR THE BOARD:


      ______________________________
      William D. Spencer
      Clerk of the Board
      Washington, D.C.




      5
        On remand, the appellant has the burden of proving jurisdiction by preponderant
      evidence. 5 C.F.R. § 1201.56(b)(2)(i)(A).
