So you have decided to appeal an unfavorable decision from the Office of Personal Management (“OPM”) to the Merit Systems Protection Board (“MSPB”), when OPM rescinds its final decision and moves that the MSPB dismiss your appeal for lack of jurisdiction to make you start over again. What can you do?
It is true that if OPM completely rescinds a final decision, the MSPB loses jurisdiction over the appeal. The key thing, however, is that OPM must “completely rescind” its decision. For this to truly occur, the employee must have received all of the relief that he/she would have had the MSPB adjudicated the matter and the employee won.
In some cases, OPM will abuse its ability to rescind its final decision by simply stating that it will rescind its decision in order to prompt the MSPB to dismiss the case, only to later issue the same or similar decision that does not grant the employee there quested disability retirement or overpayment waiver.
In cases where OPM notifies the MSPB that it is rescinding its final decision and moves for dismissal, it is important that an employee responds to the motion and articulates any concerns that OPM is not acting in good faith and demands clear assurance that OPM will indeed completely rescind its final decision before the MSPB grants dismissal.
The federal employment law attorneys at Melville Johnson, P.C. are highly be experienced in OPM and MSPB matters such as these, and are willing and able to assist you in your federal employment legal matters.