95 F.3d 1168
NOTICE: Federal Circuit Local Rule 47.6(b) states that opinions and orders which are designated as not citable as precedent shall not be employed or cited as precedent.  This does not preclude assertion of issues of claim preclusion, issue preclusion, judicial estoppel, law of the case or the like based on a decision of the Court rendered in a nonprecedential opinion or order.Jerrolyn T. CLARK, Petitioner,v.OFFICE OF PERSONNEL MANAGEMENT, Respondent.
No. 96-3262.
United States Court of Appeals, Federal Circuit.
Aug. 20, 1996.

Before RICH, LOURIE, and CLEVENGER, Circuit Judges.
ON MOTION
LOURIE, Circuit Judge.

ORDER

1
The Office of Personnel Management (OPM) moves to reform the caption to designate the Merit Systems Protection Board as respondent.  OPM states that the Board consents.  Jerrolyn T. Clark has not responded.  We sua sponte question whether the Board's decision should be summarily affirmed.


2
OPM denied Clark's request for a waiver of an overpayment.  After OPM denied Clark's request for reconsideration, Clark appealed to the Board.  While the appeal was pending at the Board, OPM rescinded its reconsideration decision and indicated that new information reflected that an overpayment no longer existed and that a new decision would be forthcoming.  The administrative judge (AJ) dismissed Clark's appeal because OPM had rescinded its decision and proceedings at OPM were ongoing.  This petition for review followed.


3
We consider, sua sponte, whether the Board's decision should be summarily affirmed.  OPM is reconsidering the overpayment issue.  A decision on the merits of that issue will be forthcoming.  It appears that the new decision may be in Clark's favor.  Assuming that the decision is not in Clark's favor, Clark can appeal to the Board and, if she does not prevail there, to this court.  However, all that is at issue in this petition is whether the AJ properly dismissed Clark's case at the Board in view of OPM's rescission of its determination.


4
Summary disposition of a case "is appropriate, inter alia, when the position of one party is so clearly correct as a matter of law that no substantial question regarding the outcome of the appeal exists."   Joshua v. United States, 17 F.3d 378, 380 (Fed.Cir.1994).  The Board has jurisdiction to hear appeals of final OPM decisions.  See 5 U.S.C. § 8347(d).  The Board has held that if OPM rescinds its decision while an appeal of that decision is pending at the Board, the Board does not retain jurisdiction.   Schuster v. Office of Personnel Management, 56 M.S.P.R. 609 (1993);   Brown v. Office of Personnel Management, 51 M.S.P.R. 261 (1991).  In this case, because OPM rescinded its decision, the AJ properly dismissed Clark's appeal.  Thus, summary affirmance of the dismissal order is appropriate.


5
Accordingly,

IT IS ORDERED THAT:

6
(1) No. 96-3262 is summarily affirmed.


7
(2) OPM's motion to reform the caption is moot.


8
(3) Each side shall bear its own costs.

