Charlie Salaita v. Office of Personnel Management ( 2023 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
CHARLIE SALAITA, DOCKET NUMBER
Appellant, DC-0845-17-0108-I-1
v.
OFFICE OF PERSONNEL DATE: February 13, 2023
MANAGEMENT,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Charlie Salaita, Midlothian, Virginia, pro se.
Carla Robinson, 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
affirmed the reconsideration decision of the Office of Personnel Management
(OPM). Generally, we grant petitions such as this one only in the following
circumstances: the initial decision contains erroneous findings of material fact;
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
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 p etitioner’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(b).
BACKGROUND
¶2 In a reconsideration decision, OPM found that the appellant had been
overpaid $284.70 in annuity benefits under the Federal Emp loyees’ Retirement
System and denied his request for waiver of recovery of the overpayment. Initial
Appeal File (IAF), Tab 9 at 6-9. OPM explained that this overpayment occurred
because it overestimated the amount of the appellant’s annuity when he retired
and paid him the overestimated amount as interim payments between the date that
he retired and the date that OPM calculated his proper annuity payment. Id.OPM explained further that interim payments to the appellant had not been
reduced to account for his receipt of Social Security Administration Disability
Insurance Benefits (SSADIB). Id. OPM set a collection schedule to recover the
overpayment in nine monthly installments of $30 each and a final installment of
$14.70. Id. at 8.
¶3 The appellant appealed to the Board. He challenged the reconsideration
decision, arguing that OPM’s calculation of his overpayment was erroneous
because it made its calculation based on the assumption that he received SSADIB,
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a benefit that he never received. IAF, Tab 1. He explained that, although he
applied for disability benefits from the Social Security Administration, he did not
receive such benefits because he applied after he was 62 years of age and was
eligible for old-age Social Security benefits. Id. The appellant did not request a
hearing. Id. The administrative judge found that, contrary to what OPM stated in
its reconsideration decision, it had not based its overpayment calculation on the
appellant’s receipt of SSDIB benefits. IAF, Tab 16, Initial Decision (ID) at 5.
The administrative judge relied on OPM’s “Special Notice” of overpayment that
informed the appellant that the “gross interim payments paid to you exceed your
actual earned annuity payable from the date of your retirement to the present. ”
ID at 5; IAF, Tab 9 at 17-19.
¶4 The administrative judge found further that, because OPM’s calculations
appeared correct, and the appellant offered no evidence to indicate otherwise,
OPM established the existence of the overpayment and its correct amount. ID
at 5. Additionally, the administrative judge found that the appellant did not
establish an entitlement to waiver of recovery of the overpayment amount. ID
at 6-8. The administrative judge noted that the appellant never submitted a
Financial Resources Questionnaire (FRQ) setting forth his monthly income and
expenses, despite numerous opportunities to do so. ID at 7-8. Thus, he found
that the appellant was not entitled to a waiver of his overpayment. ID at 8.
¶5 In his petition for review, the appellant asserts that the request for
reconsideration form supplied by OPM contained a page for estimated monthly
expenses that he completed and submitted with his request. Petition for Review
(PFR) File, Tab 1. He argues that his submission was an FRQ and th at his
completed FRQ is “somewhere at OPM.” Id. at 1. OPM has responded in
opposition to the petition for review. PFR File, Tab 4.
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DISCUSSION OF ARGUMENTS ON REVIEW
The administrative judge properly found that OPM proved that the appellant had
received an overpayment.
¶6 OPM bears the burden of proving, by a preponderance of the evidence, the
existence and amount of an annuity overpayment. Siefring v. Office of Personnel
Management, 94 M.S.P.R. 547, ¶ 3 (2003). In his petition, the appellant does not
contest the administrative judge’s finding that OPM met its burden to prove the
amount of the overpayment. He no longer argues that OPM’s calculation of his
overpayment was based on an erroneous assumption that he was receiving
SSADIB. We thus agree with the administrative judge that OPM has met its
burden of proof regarding the amount of the overpayment.
The administrative judge properly found that the appellant failed to show that he
is entitled to waiver of recovery of the overpayment.
¶7 On review, the appellant appears to be asserting that he is entitled to waiver
of recovery of the overpayment or adjustment of the repayment schedule based on
financial hardship. PFR File, Tab 1. Recovery of an overpayment will be waived
when the annuitant is without fault and recovery would be against equity and
good conscience. 5 U.S.C. § 8346(b); 5 C.F.R. § 831.1401. A recipient of an
overpayment is without fault if he has performed no act of commission or
omission that resulted in the overpayment. 5 C.F.R. § 831.1402; see Wright v.
Office of Personnel Management, 105 M.S.P.R. 419, ¶ 4 (2007). Recovery is
against equity and good conscience when it would cause financial hardship, the
annuitant can show that because of the overpayment he relinquished a valuable
right or changed positions for the worse, or recovery could be unconscionable
under the circumstances. 5 C.F.R. § 831.1403(a).
¶8 The appellant bears the burden of establishing his entitlement to a waiver
by substantial evidence. 5 C.F.R. § 831.1407(b); 5 C.F.R. § 1201.56(b)(2)(ii).
Substantial evidence is defined as the degree of relevant evid ence that a
reasonable person, considering the record as a whole, might accept as adequate to
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support a conclusion, even though other reasonable persons might disagree.
5 C.F.R. § 1201.4(p).
¶9 Here, we agree with the administrative judge that the appellant is without
fault. The record contains no evidence to show that the appellant should have
known that his interim annuity payments were erroneously calculated. Thus, he
could be entitled to waiver of recovery of the overpayment based on a showing of
financial hardship. To show that recovery of an annuity overpayment should be
waived based on financial hardship, an appellant must prove that he needs
substantially all of his current income and liquid assets to meet current ordinary
and necessary living expenses and liabilities. See 5 C.F.R. §§ 831.1404,
831.1405, 831.1407(b). In analyzing a claim of financial hardship, the
administrative judge must compare monthly income and monthly expenses
throughout the period during which collection is proposed. See Fusco v. Office of
Personnel Management, 42 M.S.P.R. 501, 506 (1989). Overpayment recipients
often supply a comparison of income and expenses by submitting an FRQ.
¶10 The appellant’s assertion that he submitted personal financial hardship
information to OPM is unavailing. In the record, there is a blank copy of an FRQ
as part of OPM’s Policy Guidelines submitted as a part of OPM’s response file.
IAF, Tab 9 at 76-79. There is nothing in OPM’s response file, however, to
support the appellant’s assertion on petition for review that he submitted a
completed FRQ or other evidence of his estimated monthly expenses to OPM.
¶11 Further, the appellant knew or should have known that he could submit
evidence of financial hardship for consideration by the administrative judge. The
administrative judge’s acknowledgment order informed the appellant that he
could claim that collection of the overpayment would cause him financial
hardship. IAF, Tab 2 at 10. It also informed him that, to establish such a claim,
he must prove by substantial evidence that he needed substantially all of his
current income and liquid assets to meet current ordinary and necessary living
expenses and liabilities, and that to establish such expenses and liabilities he
6
needed to provide specifically identified information “supported by an affidavit
and whatever documentary evidence” he possessed. Id. Notwithstanding being
provided with this information, the appellant did not submit any evidence that
collection of the overpayment would cause him financial hardship. Additionally,
although the initial decision repeats much of the information provided in the
acknowledgment order, the appellant on review states only the amount of his
monthly income; he does not state the amount of his liquid assets or his current
ordinary and necessary living expenses and liabilities. Under these
circumstances, we find that the administrative judge properly found that the
appellant failed to show that he is entitled to waiver of recovery of the
overpayment on the basis of financial hardship.
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
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 choices of review
below to decide which one applies to your particular case. If you have questions
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.
7
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 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.
(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
8
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 their 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
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, then 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
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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 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:
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 b y the President on
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 c ompetent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
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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 webs ite 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.
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.