Anthony v. Office of Personnel Management , 524 F. App'x 634 ( 2013 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
ROOSEVELT ANTHONY,
Petitioner,
v.
OFFICE OF PERSONNEL MANAGEMENT,
Respondent.
______________________
2013-3018
______________________
Petition for review of the Merit Systems Protection
Board in No. AT844E120345-I-1.
______________________
Decided: April 9, 2013
______________________
ROOSEVELT ANTHONY, of Waynesboro, Georgia, pro se.
CHRISTOPHER L. KRAFCHEK, Trial Attorney, Commer-
cial Litigation Branch, Civil Division, United States
Department of Justice, of Washington, DC, for respond-
ent. With him on the brief were STUART F. DELERY,
Principal Deputy Assistant Attorney General, JEANNE E.
DAVIDSON, Director, and PATRICIA M. MCCARTHY, Assis-
tant Director.
______________________
2 ROOSEVELT ANTHONY v. OPM
Before MOORE, BRYSON, and WALLACH, Circuit Judges.
PER CURIAM.
DECISION
Roosevelt Anthony seeks review of a decision of the
Merit Systems Protection Board dismissing an appeal
from a decision of the Office of Personnel Management
(“OPM”) for lack of jurisdiction. We affirm.
BACKGROUND
Mr. Anthony retired from the United States Postal
Service in June 2006. In January 2009, he asked OPM to
convert his retirement status from optional to retirement
based on disability. OPM approved his request and
recalculated his annuity retroactive to June 2006. As a
result, Mr. Anthony was paid $9,436.31 in additional
annuity benefits that had accrued but had not been paid
between June 2006 and August 2009.
Mr. Anthony disputed the recalculation. In Septem-
ber 2009, OPM recomputed his annuity, determined that
it was correct, and provided Mr. Anthony with supporting
documentation. Mr. Anthony requested reconsideration
of OPM’s initial decision, and on February 14, 2012, OPM
responded to that request and upheld its initial decision.
OPM’s letter stated that it represented “the final decision
of OPM” and was appealable to the Merit Systems Protec-
tion Board.
Mr. Anthony filed a timely appeal to the Board. On
March 20, 2012, however, OPM sent a letter informing
the administrative judge that the agency was “rescinding
[its] February 14, 2012, reconsideration decision” and
stating that the case would be sent to a particular section
within OPM to re-address the amount of Mr. Anthony’s
annuity after he switched to disability retirement. The
letter promised that “[n]ew reconsideration rights will be
given” following that decision, and it requested that the
ROOSEVELT ANTHONY v. OPM 3
Board dismiss Mr. Anthony’s appeal for lack of jurisdic-
tion.
The administrative judge dismissed the appeal. Cit-
ing Gale v. Office of Personnel Management, 59 M.S.P.R.
54, 56 (1993), and Bernardino v. Office of Personnel Man-
agement, 55 M.S.P.R. 615, 617 (1992), the administrative
judge held that “there is no final decision of OPM from
which [Mr. Anthony] may appeal and the Board no longer
retains jurisdiction over the appeal.” In August 2012, the
full Board denied Mr. Anthony’s petition for review. It
explained that OPM had the authority to correct its
previous decisions and that OPM’s determination to
rescind its reconsideration decision divested the Board of
jurisdiction over the appeal. The Board also noted that
“[w]hen OPM issues a new final or reconsideration deci-
sion, [Mr. Anthony] may file a new appeal if he disagrees
with [it].” Mr. Anthony appeals.
DISCUSSION
An individual whose rights or interests under the Civ-
il Service Retirement System or the Federal Employees
Retirement System are affected by a “final decision” of
OPM may appeal to the Board. See 5 C.F.R. §§ 831.110,
841.308; 5 U.S.C. §§ 8347(d)(1), 8461(e)(1). Reconsidera-
tion decisions qualify as such final, appealable decisions.
5 C.F.R. §§ 831.109(f); 841.306(e). We have recognized,
however, that OPM may “mak[e] an administrative
decision to correct what it viewed as its previous mistaken
and unlawful award.” Rogers v. Office of Pers. Mgmt., 87
F.3d 471, 475 (Fed. Cir. 1996). Because OPM’s rescission
of a reconsideration decision effectively erases that deci-
sion, the Board lacks jurisdiction over an appeal from a
rescinded decision. See, e.g., Nebblett v. Office of Pers.
Mgmt., 237 F.3d 1353, 1356 (Fed. Cir. 2001); Snyder v.
Office of Pers. Mgmt., 136 F.3d 1474, 1476 (Fed. Cir.
1998); Baniaga v. Office of Pers. Mgmt., 86 M.S.P.R. 207,
4 ROOSEVELT ANTHONY v. OPM
209 (2000); Brown v. Office of Pers. Mgmt., 51 M.S.P.R.
261, 263 (1991).
That is what happened here. Mr. Anthony appealed
OPM’s decision regarding the calculation of his annuity
benefits, and the agency subsequently rescinded that
decision on appeal. OPM stated that it was revisiting the
calculation and that “[n]ew reconsideration rights will be
given” after it has done so. The Board subsequently
explained that Mr. Anthony may appeal from OPM’s new
decision if he disagrees with it, and, in its brief to this
court, the government makes clear that Mr. Anthony “is
now free to press his claim with OPM that the annuity
calculation is incorrect.” Because the OPM decision about
which Mr. Anthony complains no longer has legally
operable effect, the Board correctly determined that there
was no final decision for it to review.
No costs.
AFFIRMED