                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     JANET MENDEZ,                                   DOCKET NUMBER
                         Appellant,                  AT-0845-16-0154-I-1

                  v.

     OFFICE OF PERSONNEL                             DATE: August 10, 2016
       MANAGEMENT,
                   Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Janet Mendez, Miami, Florida, pro se.

           Roxann Johnson, 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 concerning an alleged overpayment
     of Federal Employees’ Retirement System (FERS) benefits by the Office of
     Personnel Management (OPM). Generally, we grant petitions such as this one


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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     only in the following circumstances:       the 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 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. 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         The appellant previously filed two Board appeals concerning the same
     overpayment at issue in the instant appeal.      The appellant’s March 31, 2013
     appeal was dismissed for lack of jurisdiction in an April 30, 2013 initial decision
     because OPM had not yet issued a reconsideration decision on the overpayment
     issue. Mendez v. Office of Personnel Management, MSPB Docket No. AT-0845-
     13-0436-I-1, Initial Decision at 1-3 (Apr. 30, 2013).            After receiving a
     reconsideration decision from OPM on the overpayment matter, the appellant
     filed a second Board appeal. See Mendez v. Office of Personnel Management,
     MSPB Docket No. AT-0845-15-0165-I-1.              On December 16, 2014, OPM
     rescinded its reconsideration decision and moved that the appeal be dismissed for
     lack of jurisdiction.      See Mendez v. Office of Personnel Management,
     MSPB Docket No. AT-0845-15-0165-I-1, Initial Decision at 2 (Dec. 16, 2014).
     The administrative judge in that appeal then dismissed the appeal for lack of
     jurisdiction because OPM had rescinded its reconsideration decision. Id. at 1-2.
                                                                                      3

¶3        The appellant has now filed a third appeal concerning the purported
     overpayment. Initial Appeal File (IAF), Tab 1. In its response to the appeal,
     OPM asserted that there was no evidence that it had issued a new final decision,
     and therefore, there was no basis for Board jurisdiction. IAF, Tab 6 at 4. The
     appellant did not respond to OPM’s submission.
¶4        In his initial decision, the administrative judge found that OPM had not
     issued a final decision on the overpayment matter since OPM rescinded its
     reconsideration decision on December 16, 2014. IAF, Tab 7, Initial Decision (ID)
     at 3. Regarding the appellant’s assertion that OPM had “done nothing” with her
     case, the administrative judge found that the delay was not so unconscionable as
     to lead to the conclusion that OPM does not intend to issue a final decision in the
     future and that OPM’s assertion that it intends to issue a reconsideration decision
     is entitled to significant weight. ID at 3-4. The administrative judge also found
     that the totality of the circumstances did not support the Board exercising
     jurisdiction over the appellant’s appeal.     Id.   Thus, the administrative judge
     dismissed the appeal for lack of jurisdiction. ID at 4.
¶5        The appellant has filed a petition for review in which she argues only the
     merits of the overpayment matter. Petition for Review (PFR) File, Tab 1. The
     agency has filed a response in opposition to the appellant’s petition. PFR File,
     Tab 4.
                     DISCUSSION OF ARGUMENTS ON REVIEW
¶6        The Board’s jurisdiction 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); Wilson v. Department of
     Homeland Security, 122 M.S.P.R. 262, ¶ 2 (2015). Under 5 U.S.C. § 8461(e), the
     Board has jurisdiction to review “[a]n administrative action or order affecting the
     rights or interests of an individual” under FERS. The Board has recognized three
     situations in which OPM is deemed to have issued an appealable decision under
     the statute. Okello v. Office of Personnel Management, 120 M.S.P.R. 498, ¶ 14
                                                                                          4

     (2014). Two of those situations are prescribed by OPM’s regulations: OPM may
     either (1) issue a reconsideration decision under 5 C.F.R. § 841.306 or (2) issue
     an initial decision without reconsideration rights under 5 C.F.R. § 841.307.
     Either type of decision is final and appealable to the Board under 5 C.F.R.
     § 841.308. See 5 U.S.C. § 8461(e); Okello, 120 M.S.P.R. 498, ¶ 14. The third
     situation derives from Board case law.          Okello, 120 M.S.P.R. 498, ¶ 14.
     Specifically, the Board will take jurisdiction over an appeal concerning a
     retirement matter in which OPM has refused or improperly failed to issue a final
     decision. Id. The Board makes this determination by looking at the totality of
     the circumstances. Id., ¶ 15.
¶7         In this appeal, OPM rescinded its reconsideration decision on December 16,
     2014, and has not issued a new final decision. Thus, the only basis for the Board
     to exercise jurisdiction over this appeal is if OPM has refused or improperly
     failed to issue a final decision. The administrative judge concluded that this was
     not the case. ID at 3-4.
¶8         On review, the appellant makes arguments about the merits of her appeal,
     but does not challenge the administrative judge’s determination that the Board
     lacks jurisdiction over her appeal. PFR File, Tab 1. Based on our review of the
     record, we discern no basis to disturb the initial decision. See Crosby v. U.S.
     Postal Service, 74 M.S.P.R. 98, 106 (1997) (finding no reason to disturb the
     administrative judge’s findings where she considered the evidence as a whole,
     drew appropriate inferences, and made reasoned conclusions); Broughton v.
     Department of Health & Human Services, 33 M.S.P.R. 357, 359 (1987) (same).
     Thus, we deny the petition for review and affirm the initial decision. 2




     2
      The appellant may file an appeal again, consistent with the Board’s regulations, after
     OPM issues a final decision regarding the alleged overpayment of retirement benefits.
     See 5 C.F.R. § 841.308; see also 5 U.S.C. § 8461(e).
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                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 and other sections of the United 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 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.
