                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     YVETTE C. SQUARE,                               DOCKET NUMBER
                   Appellant,                        SF-0845-16-0253-I-1

                  v.

     OFFICE OF PERSONNEL                             DATE: September 12, 2016
       MANAGEMENT,
                   Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL *

           Yvette C. Square, Compton, California, 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 her appeal for lack of jurisdiction. 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


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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     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         By notice dated April 23, 2014, the Office of Personnel Management
     (OPM) informed the appellant that, according to its calculations, she had been
     overpaid $33,798.00 in annuity benefits.     Initial Appeal File (IAF), Tab 8 at
     25-27.   OPM advised the appellant that May 23, 2014, was the deadline for
     requesting reconsideration of its initial decision. Id. The appellant submitted a
     request for reconsideration on October 17, 2015, and, on December 30, 2015,
     OPM issued a final decision dismissing her request as untimely filed. Id. at 9-10,
     12-23.
¶3         The appellant filed a timely appeal with the Board. IAF, Tab 1. Shortly
     thereafter, OPM moved to dismiss the appeal, stating that it had rescinded its
     December 30, 2015 decision. IAF, Tab 8. OPM stated that, upon the Board’s
     dismissal of the appeal, it would review the case file and issue a new
     reconsideration decision, including detailed explanations of its annuity and
     overpayment calculations. Id. at 4. Subsequently, the administrative judge issued
     an initial decision that dismissed the appeal for lack of jurisdiction. IAF, Tab 10,
     Initial Decision.
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¶4        This petition for review followed. Petition for Review (PFR) File, Tab 1.
     The agency has filed a response, arguing in general terms that the appellant’s
     petition does not meet the criteria for review. PFR File, Tab 4.

                                        ANALYSIS
¶5        When an appeal has been filed from an OPM reconsideration decision
     dismissing a request for reconsideration as untimely, the Board retains
     jurisdiction over the appeal regarding the timeliness determination, and
     jurisdiction does not attach over the merits of the appeal unless the Board first
     finds that the timeliness determination was unreasonable. Rossini v. Office of
     Personnel Management, 101 M.S.P.R. 289, ¶ 7 (2006); Baldos v. Office of
     Personnel Management, 36 M.S.P.R. 606, 608–09 (1988). When 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). Although it does not appear that OPM has restored the appellant to the
     status quo ante by returning the portion of the overpayment it already has
     collected from her, it has nonetheless rescinded the December 30, 2015 decision
     insofar as that decision dismissed her request for reconsideration on timeliness
     grounds.    Cf. id., ¶ 10 (finding that OPM did not completely rescind the
     reconsideration decision which affirmed on the merits its initial decision finding
     an overpayment, because OPM had not restored the appellant to the status quo
     ante by returning the portion of the alleged overpayment it already had collected).
     The Board therefore lacks jurisdiction over this appeal.
¶6        We note, however, that OPM’s rescinding its December 30, 2015 decision
     does not render moot the existence or amount of the alleged overpayment or the
     appellant’s possible entitlement to a waiver.    We therefore dismiss the appeal
     without prejudice to the appellant’s filing a new appeal concerning any future
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reconsideration decision by OPM on the same matter. See Parker v. Office of
Personnel Management, 74 M.S.P.R. 131, 133 (1997).

                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 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 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 Circuit. The
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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.
