                          UNITED STATES OF AMERICA
                       MERIT SYSTEMS PROTECTION BOARD


     SUSAN J. SOMMERFELD,                            DOCKET NUMBER
                   Appellant,                        CH-0831-15-0038-I-1

                  v.

     OFFICE OF PERSONNEL                             DATE: June 30, 2015
       MANAGEMENT,
                   Agency.



             THIS FINAL ORDER IS NO NPRECEDENTIAL 1

           Susan J. Sommerfeld, Milwaukee, Wisconsin, pro se.

           Karla W. Yeakle, 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 of jurisdiction her appeal in which she challenged the Office of
     Personnel Management’s (OPM’s) denial of her claim for a former spouse
     survivor annuity. Generally, we grant petitions such as this one only when: the


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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     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 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, and
     based on the following points and authorities, 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).
¶2         The appellant filed an appeal from OPM’s October 6, 2014 reconsideration
     decision, in which it denied her claim for a survivor annuity based on the service
     of her former husband who had recently died. Initial Appeal File (IAF), Tab 1 at
     1-4, 7-9.      During adjudication, OPM stated that it had rescinded the
     reconsideration decision and moved that the appeal be dismissed. Id., Tab 7. The
     administrative judge dismissed the appeal for lack of jurisdiction.       Id., Tab 9,
     Initial Decision at 2.
¶3         On review, the appellant continues to argue that she is entitled to the benefit
     she seeks.    Petition for Review (PFR) File, Tab 1.        OPM has responded in
     opposition to the appellant’s petition for review. Id., Tab 5.
¶4         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.          Rorick v. Office of
     Personnel Management, 109 M.S.P.R. 597, ¶ 5 (2008); Glasgow v. Office of
     Personnel Management, 103 M.S.P.R. 531, ¶ 5 (2006). As noted, OPM asserted
     in the proceedings below that it had rescinded the reconsideration decision,
                                                                                        3

indicating that it intended to render a new decision after it “[took] another look at
the case.” IAF, Tab 7. The appellant has not, on review, challenged the accuracy
of OPM’s statement or identified any other basis upon which to find that the
Board retains jurisdiction over this appeal despite that rescission and therefore we
find that the administrative judge properly dismissed the appeal for lack of
jurisdiction. 2

                  NOTICE TO THE APPELLANT REGARDING
                     YOUR FURTHER REVIEW RIGHTS
      You have the right to request review of this final decision by the United
States 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 United States 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 United


2
  In its response to the appellant’s petition for review, OPM indicates that it has issued
a new reconsideration decision in which it provided the appellant with instructions on
how to appeal it to the Board. PFR File, Tab 5. In fact, the appellant has already filed
an appeal of that decision. Sommerfeld v. Office of Personnel Management, MSPB
Docket No. CH-0831-15-0435-I-1.
                                                                                   4

States     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 your appeal to
the 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
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:                              ______________________________
                                            William D. Spencer
                                            Clerk of the Board
Washington, D.C.
