Kenneth Junius v. Office of Personnel Management ( 2022 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
KENNETH JUNIUS, DOCKET NUMBER
Appellant, DA-0845-17-0031-I-1
v.
OFFICE OF PERSONNEL DATE: June 29, 2022
MANAGEMENT,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Kenneth Junius, New Orleans, Louisiana, pro se.
Jane Bancroft, Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed his Federal Employees’ Retirement System (FERS) overpayment
appeal for lack of jurisdiction. Generally, we grant petitions such as this one only
in the following circumstances: the initial decision contains erroneous findings
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
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.
BACKGROUND
¶2 The Office of Personnel Management (OPM) issued a reconsideration
decision on September 27, 2016, affirming its calculation of a $29,906
overpayment in FERS annuity benefits and denying the appellant’s request for a
waiver. Initial Appeal File (IAF), Tab 1 at 8-11. Based on a finding of financial
hardship, OPM adjusted the repayment schedule and indicated that it would
collect the overpayment in 664 monthly installments of $45, plus a final
installment of $26, beginning with the appellant’s annuity payment check dated
January 1, 2017. Id. at 11.
¶3 The appellant filed an appeal with the Board on October 17, 2016,
contesting OPM’s reconsideration decision. IAF, Tab 1. OPM filed a motion to
dismiss the appeal on November 15, 2016, stating that it had “rescinded the
decision under appeal, [and] there no longer remains any matter over which the
Board retains jurisdiction.” IAF, Tab 6 at 4. OPM also stated that it would cease
all collection attempts and issue a new decision after further review of the amount
of the overpayment. Id. The administrative judge granted OPM’s motion and
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dismissed the appeal for lack of jurisdiction based on his finding that OPM had
completely rescinded the final decision. IAF, Tab 9, Initial Decision (ID) at 2.
¶4 The appellant has filed a petition for review, arguing the merits of his
appeal. Petition for Review (PFR) File, Tab 1. The agency has responded to his
petition. PFR File, Tab 6.
DISCUSSION OF ARGUMENTS ON REVIEW
¶5 On review, the appellant does not address the administrative judge’s finding
that the Board has no jurisdiction over this appeal. Instead, he submits medical
documentation and asserts that he did not know that he needed to file this
evidence on appeal below. PFR File, Tab 1 at 3, Tab 3. He also submits
evidence and argument that he is in debt because of his election to take disability
retirement. PFR File, Tab 1 at 4, 6-9. He contends that he did not understand
how the disability retirement system works or that the money he received was not
his. Id. at 4. He further states that he only applied for disability retirement
because the Postal Service threatened him with removal based on his absences
from an on-the-job injury. Id. at 3-4. For the reasons discussed below, we find
that the administrative judge properly dismissed this appeal for lack of
jurisdiction.
¶6 The Board has jurisdiction over OPM determinations affecting an
appellant’s rights or interests under FERS after OPM has issued a fina l or
reconsideration decision. 5 U.S.C. § 8461(e)(1); Okello v. Office of Personnel
Management, 120 M.S.P.R. 498, ¶¶ 13-14 (2014); 5 C.F.R. § 841.308. If OPM
completely rescinds the reconsideration decision, however, the rescission divests
the Board of jurisdiction over the appeal in which the reconsideration decision is
at issue, and the appeal must be dismissed. Martin v. Office of Personnel
Management, 119 M.S.P.R. 188, ¶ 8 (2013). Here, OPM asserted that it had
completely rescinded the final decision and intended to issue a new decision
regarding the alleged overpayment. IAF, Tab 6 at 4. The appellant did not
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dispute these contentions below or on review, despite being expli citly informed
by OPM’s motion and the initial decision that such rescission divests the Board of
jurisdiction. ID at 3; IAF, Tab 6 at 4; see Boughton v. Department of Agriculture,
94 M.S.P.R. 347, ¶¶ 5‑6 (2003) (finding it sufficient that an agency’s motion to
dismiss or an initial decision put the appellant on notice of the Board’s
jurisdictional requirements, providing him with an opportunity to meet his burden
on review). Rather, the appellant argues the merits of his appeal, which is
immaterial to the jurisdictional issue before the Board on review. PFR File,
Tab 1 at 3-4; see Sapla v. Department of the Navy, 118 M.S.P.R. 551, ¶ 7 (2012)
(finding that an appellant’s arguments concerning defamation and the basis for
the agency’s withdrawal of a job offer were not relevant to issue of the Board’s
jurisdiction over the agency’s withdrawal of the job offer, the issue currently
before the Board). We therefore affirm the administrative judge’s decision to
dismiss this appeal for lack of jurisdiction.
¶7 As noted above, OPM indicated that it intends to issue a new decision
concerning the alleged overpayment. IAF, Tab 6 at 4. The dismissal of this
appeal does not preclude the appellant from filing another appeal if he disagrees
with OPM’s new reconsideration decision. Franklin v. Office of Personnel
Management, 62 M.S.P.R. 168, 169-70 (1994). The appellant must file any future
appeal within the limits set forth in the Board’s regulations. Id.; see 5 C.F.R.
§ 1201.22. Because the appellant’s arguments on review present no basis to
disturb the initial decision, we deny his petition for review.
NOTICE OF APPEAL RIGHTS 2
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
2
Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
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review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choice s of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general. As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particu lar
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, 10, and 11.
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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
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination. This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision—including a disposition of your discrimination
claims—by filing a civil action with an appropriate U.S. district court (not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board, 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court-appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at the ir respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues. 5 U.S.C. § 7702(b)(1). You must file any such request with the
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EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, t hen you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012. This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of competent jurisdiction. 3 The court of appeals must receive your
3
The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
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petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit 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, 10, 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
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
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Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
FOR THE BOARD: /s/ for
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.