Stephen G. Buffkin, Petitioner, v. Office of Personnel Management, Respondent, 79 F.3d 1164 (Fed. Cir. 1996)

The Office of Personnel Management (OPM) moves to reform the caption to designate the Merit Systems Protection Board as respondent.^*  OPM states that the Board consents. Stephen G. Buffkin has not responded. We sua sponte question whether Buffkin's petition for review should be summarily affirmed.

OPM denied Buffkin's request for a waiver of a $5,406 overpayment. Buffkin appealed to the Board. While the appeal was pending at the Board, OPM rescinded its decision and indicated that a new decision would be forthcoming. The administrative judge (AJ) dismissed Buffkin's appeal because OPM had rescinded its decision and proceedings at OPM were ongoing. This petition for review followed.

We consider, sua sponte, whether Buffkin's petition should be summarily affirmed. OPM is reconsidering the repayment issue. A decision on the merits of that issue will be forthcoming. If the decision is not in Buffkin's favor, then Buffkin can appeal to the Board and, if he does not prevail there, to this court. However, all that is at issue in this petition is whether the AJ properly dismissed Buffkin's case at the Board in view of OPM's rescission of its determination.

Summary disposition of a case "is appropriate, inter alia, when the position of one party is so clearly correct as a matter of law that no substantial question regarding the outcome of the appeal exists." Joshua v. United States, 17 F.3d 378, 380 (Fed. Cir. 1994). The Board has jurisdiction to hear appeals of final OPM decisions. See 5 U.S.C. § 8347(d). The Board has held that if OPM rescinds its decision while an appeal of that decision is pending at the Board, the Board does not retain jurisdiction. Schuster v. Office of Personnel Management, 56 M.S.P.R. 609 (1993); Brown v. Office of Personnel Management, 51 M.S.P.R. 261 (1991).

In this case, because OPM rescinded its decision, the AJ properly dismissed Buffkin's appeal. Thus, summary affirmance of the dismissal order is appropriate. We note that in his informal brief, Buffkin states that he seeks a "complete waiver" of the overpayment. That issue is not before this court.

Accordingly,

IT IS ORDERED THAT:

(1) Appeal no. 96-3047 is summarily affirmed.

(2) OPM's motion to reform the caption is moot.

(3) Each side shall bear its own costs.