Case: 22-1823 Document: 21 Page: 1 Filed: 10/17/2022
NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
DENNIS R. HRITZ,
Petitioner
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent
______________________
2022-1823
______________________
Petition for review of the Merit Systems Protection
Board in No. CH-0831-21-0334-I-1.
______________________
Decided: October 17, 2022
______________________
DENNIS R. HRITZ, Columbus, OH, pro se.
CALVIN M. MORROW, Office of the General Counsel,
United States Merit Systems Protection Board, Washing-
ton, DC, for respondent. Also represented by KATHERINE
MICHELLE SMITH.
______________________
Before MOORE, Chief Judge, CHEN and STOLL, Circuit
Judges.
Case: 22-1823 Document: 21 Page: 2 Filed: 10/17/2022
2 HRITZ v. MSPB
PER CURIAM.
Dennis R. Hritz appeals a decision of the Merit Sys-
tems Protection Board (MSPB) dismissing Mr. Hritz’s ap-
peal of an Office of Personnel Management (OPM) decision
for lack of jurisdiction. We affirm.
BACKGROUND
On May 10, 2021, OPM issued a reconsideration deci-
sion denying Mr. Hritz’s application for Civil Service Re-
tirement System annuity benefits based on his service in
the United States Postal Service. S. Appx. 21. According
to OPM, Mr. Hritz was not entitled to annuity benefits be-
cause he is no longer employed by the federal government
and had already filed for and received a refund of his re-
tirement deductions totaling $7,948.20. Id.
Mr. Hritz appealed to the MSPB, arguing that OPM
erred because he does not remember getting the refund and
because OPM did not provide him a cancelled check to sup-
port its decision. S. Appx. 23–24. OPM filed a response on
the merits, S. Appx. 25–30, then OPM rescinded the deci-
sion and transferred Mr. Hritz’s case to the appropriate
OPM services office for it to render a new decision with ap-
propriate appeal rights. S. Appx. 31–32. Because the de-
cision being appealed to the MSPB had been rescinded,
OPM moved to dismiss. Id.
The MSPB dismissed because OPM’s recission divested
it of jurisdiction. S. Appx. 1–3. Mr. Hritz sought review by
the full MSPB, which was denied. S. Appx. 12. Mr. Hritz
appeals. We have jurisdiction under
28 U.S.C.
§ 1295(a)(9).
DISCUSSION
We affirm MSPB decisions unless they are (1) arbi-
trary, capricious, an abuse of discretion, or otherwise not
in accordance with the law; (2) obtained without proce-
dures required by law, rule, or regulation having been
Case: 22-1823 Document: 21 Page: 3 Filed: 10/17/2022
HRITZ v. MSPB 3
followed; or (3) unsupported by substantial evidence.
5
U.S.C. § 7703(c). We review de novo whether the MSPB
has jurisdiction over an appeal. Hessami v. Merit Sys. Prot.
Bd.,
979 F.3d 1362, 1367 (Fed. Cir. 2020) (citing Forest v.
Merit Sys. Prot. Bd.,
47 F.3d 409, 410 (Fed. Cir. 1995)).
MSPB jurisdiction is limited to actions made appeala-
ble to it by law, rule, or regulation. Barrett v. Soc. Sec. Ad-
min.,
309 F.3d 781, 785 (Fed. Cir. 2002). Under
5 U.S.C.
§ 8347(d)(1), the MSPB has jurisdiction to review OPM de-
terminations affecting an appellant’s rights or interests
under civil service retirement law. OPM’s complete recis-
sion of a decision under appeal divests the MSPB of juris-
diction because that decision no longer affects the
appellant’s rights or interests. Nebblett v. Off. of Pers.
Mgmt.,
237 F.3d 1353, 1356 (Fed. Cir. 2001). Because OPM
rescinded its decision, the MSPB lacks jurisdiction. We
therefore affirm. 1
AFFIRMED
COSTS
No costs.
1 While the MSPB lacks jurisdiction to hear Mr.
Hritz’s current appeal, OPM indicated it will issue a new
decision, S. Appx. 32, which Mr. Hritz can appeal. OPM is
required to act diligently and within a reasonable time to
issue the new decision. If it does not, Mr. Hritz may file a
new appeal on that basis. McNeese v. Off. of Pers. Mgmt.,
61 M.S.P.R. 70, 74 (1994), aff’d,
40 F.3d 1250 (Fed. Cir.
1994) (unpublished table decision).
