                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     BARBARA J. BLACKMON,                            DOCKET NUMBER
                   Appellant,                        CH-0845-15-0385-I-1

                  v.

     OFFICE OF PERSONNEL                             DATE: September 29, 2015
       MANAGEMENT,
                   Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL *

           Barbara J. Blackmon, Chicago, Illinois, pro se.

           Cynthia Reinhold, 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 of a reconsideration decision by the Office of Personnel
     Management (OPM) regarding an alleged overpayment of retirement benefits.
     Generally, we grant petitions such as this one only when: the initial decision


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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     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.     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).
¶2        The appellant filed an appeal of OPM’s reconsideration decision, dated
     March 10, 2015, which found that she had received an overpayment of annuity
     benefits under the Federal Employees’ Retirement System. Initial Appeal File
     (IAF), Tab 1. While the case was pending below, OPM filed a motion to dismiss
     the appeal, stating that it had rescinded the March 10, 2015 reconsideration
     decision.   IAF, Tab 5.   OPM explained that after the appeal was dismissed it
     would “further review the calculation of the overpayment and address other
     outstanding concerns of the appellant.”     Id.   OPM further clarified that the
     appellant’s “right to a new decision has been preserved.” Id. The administrative
     judge granted OPM’s motion and dismissed the appeal for lack of jurisdiction.
     IAF, Tab 5, Initial Decision.
¶3        On petition for review, the appellant contests the merits of the
     reconsideration decision, arguing that OPM erred in finding that she was overpaid
     during the period from April 1, 2013, through December 30, 2014. Petition for
     Review (PFR) File, Tab 1 at 4.      She further contends that, according to the
     reconsideration decision, OPM should have suspended deductions from her
                                                                                           3

     annuity and that her annuity should be restored to the 40 percent level. Id. Along
     with her petition, the appellant submits a January 14, 2015 letter from OPM
     concerning its overpayment calculation; an August 28, 2013 letter from the Office
     of Workers’ Compensation Programs (OWCP) concerning her election to receive
     OPM benefits in lieu of OWCP benefits; and an undated monthly benefit
     statement.   Id.     The agency has filed a response, arguing that the appellant’s
     petition does not meet the criteria for review. PFR File, Tab 4.
¶4         Where, as here, 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). The appellant
     does not dispute OPM’s statement that it has rescinded its March 10, 2015
     reconsideration decision.      Accordingly, we find that the administrative judge
     correctly dismissed the appeal for lack of jurisdiction. The additional evidence
     submitted by the appellant is not relevant to the threshold issue of jurisdiction
     and therefore does not warrant further review.                See Russo v. Veterans
     Administration, 3 M.S.P.R. 345, 349 (1980) (holding that the Board will not grant
     a petition for review based on new evidence absent a showing that it is of
     sufficient   weight     to   warrant   an   outcome   different   from   that   of   the
     initial decision).

                        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
                                                                                          4

      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 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
United States 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.
