                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     DWAYNE ANTHONY TUCKER, SR,                      DOCKET NUMBER
                 Appellant,                          PH-0845-14-0658-I-1

                  v.

     OFFICE OF PERSONNEL                             DATE: October 16, 2014
       MANAGEMENT,
                   Agency.



                       THIS ORDER IS NONPRECEDENTIAL *

           Dwayne Anthony Tucker, Sr., Essex, Maryland, pro se.

           Christopher H. Ziebarth, Washington, D.C., for the agency.


                                           BEFORE

                              Susan Tsui Grundmann, Chairman
                              Anne M. Wagner, Vice Chairman
                                 Mark A. Robbins, Member


                                     REMAND ORDER

¶1         The appellant has filed a petition for review of the initial decision, which
     dismissed his appeal for lack of jurisdiction based upon the Office of Personnel
     Management’s (OPM’s) statement that it would rescind its reconsideration
     decision. For the reasons discussed below, we GRANT the appellant’s petition

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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     for review and REMAND the case to the regional office for further adjudication
     in accordance with this Order.

                         DISCUSSION OF ARGUMENTS ON REVIEW
¶2         The appellant applied for retirement under the Federal Employees’
     Retirement    System        and   began   receiving     interim     annuity    benefits    in
     September 2012. Initial Appeal File (IAF), Tab 6 at 17, 26-29. In its initial
     decision, OPM stated that it had issued an overpayment concerning the previously
     issued interim benefits. OPM also informed the appellant that it would collect the
     overpayment by withholding installments from future monthly annuity payments.
     Id. at 16-17. OPM informed the appellant of his right to request reconsideration
     within 30 days. Id. The appellant contacted OPM via telephone regarding the
     initial decision more than 30 days after its issuance. Id. at 9. In response, OPM
     issued a reconsideration decision finding both that the appellant’s request for
     reconsideration was untimely and that he provided no basis for waiving the
     overpayment based on financial hardship. Id. at 9-10. OPM began withholding
     the installments from the appellant’s annuity benefits. Id. at 12.
¶3         The appellant submitted a timely Board appeal arguing that OPM was
     negligent in calculating his interim benefits and that repayment would cause him
     financial hardship. IAF, Tab 1. In response, OPM stated that its reconsideration
     decision was incorrect because it did not specify that the interim benefits
     overpayment resulted when the appellant became entitled to Social Security
     Administration benefits. IAF, Tab 6 at 4. OPM therefore indicated its intent to
     rescind the reconsideration decision, requested dismissal of the appeal, and stated
     that it would issue a new reconsideration decision.           Id.     Based upon OPM’s
     representation      that   it   would   rescind   the   reconsideration       decision,   the
     administrative judge dismissed the appeal for lack of jurisdiction. IAF, Tab 8,
     Initial Decision.
                                                                                        3

¶4         On petition for review, the appellant argues that recovery of the
     overpayment is causing him financial hardship and requests that he be returned to
     the financial state that he was in prior to the discovery of the overpayment.
     Petition for Review (PFR) File, Tab 1. In response, OPM indicates that it issued
     a new initial decision following the administrative judge’s dismissal to which the
     appellant has not responded. PFR File, Tab 4 at 4. OPM also attaches its new
     initial decision. PFR File, Tab 4 at 6-8. In reply, the appellant argues that OPM
     should be required to return the amount of money that it has already withheld.
     PFR File, Tab 5.
¶5         The Board’s jurisdiction is not plenary; it 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). In particular, if OPM
     rescinds a 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.
¶6         In this case, although OPM states that it rescinded the reconsideration
     decision, it submits no evidence concerning reimbursement to the appellant of
     previously withdrawn funds. PFR File, Tab 4. On review, the appellant states
     that OPM indeed has not returned the funds to him. PFR File, Tab 5 at 4. We
     therefore find that OPM has failed to establish that it returned the appellant to the
     status quo ante. Accordingly, the appeal remains within the Board’s jurisdiction.
     See Martin, 119 M.S.P.R. 188, ¶ 10.
                                                                         4

                                    ORDER
     For the reasons discussed above, we REMAND this case to the regional
office for further adjudication in accordance with this Remand Order.




FOR THE BOARD:                          ______________________________
                                        William D. Spencer
                                        Clerk of the Board
Washington, D.C.
