Laurel A. Pettress v. Office of Personnel Management ( 2016 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
LAUREL A. PETTRESS, DOCKET NUMBER
Appellant, CH-0845-15-0420-I-1
v.
OFFICE OF PERSONNEL DATE: April 12, 2016
MANAGEMENT,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Laurel A. Pettress, Detroit, Michigan, pro se.
Kristine Prentice, Washington, D.C., for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Mark A. Robbins, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
affirmed the reconsideration decision of the Office of Personnel Management
(OPM) finding that she was overpaid $20,889.40 in annuity benefits under the
Federal Employees’ Retirement System (FERS), but modified the OPM
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
repayment schedule. Generally, we grant petitions such as this one only when:
the initial decision contains erroneous findings 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. See 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(b).
¶2 The appellant filed an appeal of OPM’s reconsideration decision, which
found that she was overpaid $20,889.40 in annuity benefits under FERS and that
she was not entitled to a waiver of the overpayment. Initial Appeal File (IAF),
Tab 1. It is undisputed that the appellant was separated for disability retirement
on November 22, 2010, by her employing agency, the U.S. Postal Service. IAF,
Tab 5. While the appellant’s pay ceased on that date, she received disability
benefits from the Office of Workers’ Compensation Programs (OWCP) from
November 22 to December 2, 2010. IAF, Tab 5 at 6. In a letter dated
November 16, 2010, OPM granted the appellant’s application for disability
retirement and advised her that she was required to apply for social security
benefits. Id. at 78-139. OPM’s letter also explicitly notified the appellant that
her social security checks should be set aside until the FERS annuity had been
properly reduced and that those checks would be needed to pay OPM for the
reduction that should have been made in the FERS annuity. Id. at 79. In a letter
dated September 10, 2012, OPM notified the appellant that it had received
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information that she became entitled to social security benefits effective
December 3, 2010. Id. at 61-62. OPM advised the appellant that her annuity had
been adjusted because of her social security benefits and that, as a result, she had
been overpaid $20,889.40, and it notified her that her repayment schedule would
consist of 80 monthly payments of $257.97 with a final payment of $251.80. Id.
¶3 The appellant requested reconsideration of OPM’s decision, and she
requested a waiver of the overpayment. Id. at 59-60. The appellant submitted
two Financial Resources Questionnaires (FRQ), dated October 13, 2012, and
March 17, 2015, respectively, both forms showing that her average monthly
expenses exceeded her average monthly income. 2 Id. at 10-12, 16-20. OPM’s
reconsideration decision affirmed the overpayment and found that the appellant
was not entitled to a waiver of the overpayment. Id. at 6-9. However, OPM
adjusted the repayment schedule to 139 monthly payments of $150.00 and one
final payment of $39.40. Id. at 9.
¶4 On appeal, the appellant asked the Board to waive recovery of the
overpayment because of financial hardship. IAF, Tab 1. While the appellant
initially requested a hearing, she withdrew that request, and the administrative
judge decided the case on the written record. IAF, Tab 12, Initial Decision (ID)
at 1; IAF, Tab 10. The administrative judge found that OPM established the
existence and amount of the overpayment, $20,889.40, and that the appellant
was not entitled to waiver of collection of the overpayment under the set-aside
rule. ID at 4-7. However, the administrative judge found that, because the
overall record indicates that the appellant’s average monthly expenses exceeded
2
There was a substantial difference between the appellant’s FRQ forms. The 2012 FRQ
lists her average monthly income as $1,813.00 and her average monthly expenses as
$1,720.00, while the 2015 FRQ lists her average monthly income as $2,372.00 and her
average monthly expenses as $3,363.00. On the 2015 FRQ her average monthly taxes
are identified as $1,500.00, while there were no taxes included on the 2012 FRQ. IAF,
Tab 5 at 10-12, 16-20. The appellant did not provide any explanation for the
differences between the 2012 and 2015 FRQs.
4
her average monthly income, further reduction in the monthly repayment schedule
was reasonable. ID at 9. The administrative judge adjusted the repayment
schedule to 278 payments of $75.00 per month with a final payment of $39.40.
ID at 9. Thus, she affirmed OPM’s reconsideration decision as modified.
¶5 On review, the appellant appears to challenge the existence and the amount
of the FERS overpayment. Petition for Review File, Tab 1. In this connection,
the appellant asserts for the first time on review that, because of her injury, her
attendance at work was sporadic from June 2008 until her retirement and that,
while she was on OWCP’s rolls for some of that period, she was not being
compensated by OWCP. As a result, she contends that some of the payroll
information may have been incorrect and she does not think that she was
overpaid. Id.
¶6 However, because the appellant failed to raise this argument below and she
has made no showing that it is based on new and material evidence not previously
available despite her due diligence, we need not address it for a first time on
review. See Banks v. Department of the Air Force, 4 M.S.P.R. 268, 271 (1980).
Moreover, the applicable law and the record evidence support the administrative
judge’s findings that OPM established the existence and amount of the
overpayment with the “Paid and Due Calculation” provided to the appellant with
the overpayment notice, as well as the Explanation of Disability Annuity
Computation. ID at 4. Therefore, we discern no reason to disturb these explained
findings. See Crosby v. U.S. Postal Service, 74 M.S.P.R. 98, 105-06 (1997)
(finding no reason to disturb the administrative judge’s findings where she
considered the evidence as a whole, drew appropriate inferences, and made
reasoned conclusions); Broughton v. Department of Health & Human
Services, 33 M.S.P.R. 357, 359 (1987) (same).
¶7 Finally, although the appellant does not challenge the adjusted repayment
schedule, we have reviewed the administrative judge’s determination to adjust
OPM’s repayment schedule from 139 monthly payments of $150.00 and 1 final
5
payment of $39.40 to 278 payments of $75.00 per month with a final payment of
$39.40, and we agree with the administrative judge that, based on the appellant’s
average monthly income and expenses, the reduction in the repayment schedule is
warranted. Thus, we have found no basis upon which to disturb the adjusted
repayment schedule.
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
You have the right to request review of this final decision by the U.S.
Court of Appeals for the Federal Circuit. You must submit your request to the
court at the following address:
United States Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, DC 20439
The court must receive your request for review no later than 60 calendar days
after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec. 27,
2012). If you choose to file, be very careful to file on time. The court has held
that normally it does not have the authority to waive this statutory deadline and
that filings that do not comply with the deadline must be dismissed. See Pinat v.
Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).
If you need further information about your right to appeal this decision to
court, you should refer to the Federal law that gives you this right. It is found in
title 5 of the United States Code, section 7703 (5 U.S.C. § 7703) (as rev. eff.
Dec. 27, 2012). You may read this law as well as other sections of the
United States Code, at our website, http://www.mspb.gov/appeals/uscode.htm.
Additional information 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, 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 Merit Systems Protection Board neither endorses the services
provided by any attorney nor warrants that any attorney will accept representation
in a given case.
FOR THE BOARD: ______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.