Elena Finch v. Office of Personnel Management ( 2022 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ELENA G. FINCH, DOCKET NUMBER
Appellant, AT-0845-16-0722-I-1
v.
OFFICE OF PERSONNEL DATE: July 14, 2022
MANAGEMENT,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Elena G. Finch, Lutz, Florida, pro se.
Karla W. Yeakle, 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), finding that she received an overpayment of disability retirement benefits
under the Federal Employees’ Retirement System (FERS) in the amount of
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
$4,318.47. For the reasons set forth below, we GRANT the petition for review
but still AFFIRM, as MODIFIED, the initial decision. Specifically, we MODIFY
the initial decision to reduce the amount of the overpayment to $3,304.07, which
accounts for the appellant’s out-of-pocket payment of Federal Employees Health
Benefits (FEHB) premiums during the overpayment period. We further MODIFY
the initial decision to find that the set-aside rule does not apply to preclude
waiver based on financial hardship but still find that the appellant is not entitled
to waiver of the overpayment amount or to further adjustment of the repayment
schedule.
BACKGROUND
¶2 In January 2015, the appellant applied for a disability retirement annuity
under FERS and entered leave without pay (LWOP) status pending a decision on
her application. Initial Appeal File (IAF), Tab 9 at 42-44, 50-51. OPM approved
her application and, by notice dated October 14, 2015, informed her that it had
placed her in an interim payment status while it completed processing her
application. Id. at 39, 60. OPM advised her that, if the total annuity due to her
was less than the interim payments, it would make adjustments to balance her
account and that, if she was overpaid, she would be “notified and offered the
opportunity to respond before [OPM began] to withhold the excess from future
annuity payments.” Id. at 39.
¶3 In a letter dated March 16, 2016, OPM notified the appellant that her gross
interim payments had exceeded the actual earned annuity payable to her from the
date of her retirement and that she had received an overpayment of $4,318.47. Id.
at 22-23. OPM further advised her that it would collect the overpayment through
monthly deductions of $119.95 from her FERS annuity payments. Id. The
appellant requested reconsideration of the existence and amount of the
overpayment and a waiver of the overpayment collection. Id. at 14. In a June 30,
2016 reconsideration decision, OPM affirmed its initial decision regarding the
3
existence and amount of the overpayment and denied the appellant’s request for a
waiver but agreed to lower the monthly installments to $50.00 , with a final
installment of $18.47. Id. at 7-10.
¶4 The appellant filed this appeal of OPM’s reconsideration decision to the
Board, challenging the amount of the overpayment and requesting waiver of the
overpayment collection or, in the alternative, a compromise on the amount owed.
IAF, Tab 1 at 1-3, 8. In support of her challenge to the amount of the
overpayment, the appellant argued that OPM should deduct from its overpayment
calculation her October 2015 payment of $1,014 to the National Finance Center
(NFC) for FEHB premiums not collected while she was in a nonpay status. Id.
at 1, 3, 24-26. In an initial decision based on the written record, the
administrative judge found that OPM established the amount of the overpayment
by preponderant evidence, that the appellant did not establish that she was
eligible for a waiver of the overpayment collection based on financial hardship or
unconscionability, and that she did not show that she was eligible for a further
adjustment of OPM’s repayment schedule on the basis of financial hardship. IAF,
Tab 17, Initial Decision (ID). Regarding the FEHB premium payment, the
administrative judge deferred to OPM’s assertion that the appellant must obtain
reimbursement from NFC, not from OPM. ID at 3-4.
¶5 The appellant has filed a petition for review of the initial decision
challenging these findings. Petition for Review (PFR) File, Tab 1 at 1-2. 2
2
The appellant has attached a number of documents to her petition for review that are
already contained in the record. PFR File, Tab 1 at 6-22. In addition, she has
submitted for the first time a November 16, 2016 letter informing her that her rent
would be increased by $24 per month, beginning on December 30, 2016. Id. at 23.
Because this letter was unavailable before the close of the record below, we will
consider it for the first time on review. See Avansino v. U.S. Postal Service, 3 M.S.P.R.
211, 214 (1980) (stating that the Board generally will not consider evidence submitted
for the first time with the petition for review absent a showing that it was unavailable
before the record was closed despite the party’s due diligence). The appellant also has
filed a motion for leave to file additional pleadings. PFR File, Tab 5. In this mot ion,
the appellant is seeking leave to submit additional evidence that, according to her, was
4
ANALYSIS
We modify the initial decision to find that OPM only proved that the appellant
was overpaid $3,304.07, which accounts for her out-of-pocket payment of
$1,014.40 in FEHB premiums.
¶6 OPM bears the burden of showing the existence and the amount of an
annuity overpayment by a preponderance of the evidence. 3 Vojas v. Office of
Personnel Management, 115 M.S.P.R. 502, ¶ 10 (2011); see 5 C.F.R.
§ 845.307(a). In the initial decision, the administrative judge found that the
calculations provided by OPM supported its determination that the appellant
received an overpayment of $4,318.47. ID at 3. In addition, as noted above, he
found that the appellant must seek reimbursement of her October 2015 FEHB
premium payment from NFC, not from OPM, and that OPM need not deduct the
payment from its overpayment calculation. ID at 3-4. In so finding, he relied on
OPM’s statement that “the appellant must request a letter from OPM for
reimbursement from NFC for health insurance premiums that have been collected
from her FERS [d]isability annuity. The recovery of payments from NFC is
between the appellant and NFC only.” ID at 4; IAF, Tab 9 at 5. Thus, he
concluded that OPM established the amount of the overpayment by the requisite
preponderant evidence. ID at 4.
¶7 On review, the appellant argues that she contacted NFC and was told that
“they do not reimburse.” PFR File, Tab 1 at 2. As such, she reiterates her
not readily available before the record closed and “adds proof to [her] pleadings.” Id.Although the availability of the evidence she seeks to submit may postda te the close of
the record and therefore may be considered new, she has failed to explain how the
evidence is material and would warrant an outcome different from that of the initial
decision. Russo v. Veterans Administration, 3 M.S.P.R. 345, 349 (1980); Avansino,
3 M.S.P.R. at 214. Accordingly, the appellant’s motion for leave to submit additional
evidence is denied.
3
A preponderance of the evidence is that degree of relevant evidence that a reasonable
person, considering the record as a whole, would accept as sufficient to find that a
contested fact is more likely to be true than untrue. 5 C.F.R. § 1201.4(q).
5
argument that her health insurance premium payment should be deducted from
her overpayment. Id.¶8 In its reconsideration decision, OPM found that it paid the appellant
$16,475 in interim payments from January 11, 2015, through February 30, 2016, 4
but that it only should have paid her $12,156.53, resulting in an overpayment of
$4,318.47. IAF, Tab 9 at 8. In calculating the amount the appellant was
overpaid, OPM included $1,908.69 in FEHB premiums that it paid on the
appellant’s behalf. Id.¶9 The record reflects, however, that the appellant paid FEHB premiums
out-of-pocket for part of that same time period. IAF, Tab 1 at 24-26.
Specifically, on October 19, 2015, she submitted a check in the amount of
$1,014.40 to NFC in response to its October 1, 2015 letter demanding payment of
past-due FEHB premiums, which were not collected while she was in a nonpay
status from pay period 2 through pay period 17, i.e., January through
August 2015. Id. OPM does not dispute that the appellant paid her own FEHB
premiums for this period but simply avers, without citation to any authority, that
the appellant must seek reimbursement from NFC. IAF, Tab 9 at 5.
¶10 We disagree with OPM’s assertion, on which the administrative judge
relied, that the appellant must seek reimbursement of her out -of-pocket FEHB
premium payment from NFC and that her FEHB premium payment in
October 2015 is irrelevant to OPM’s overpayment calculation. To the contrary,
the Board previously has held that OPM must reduce the amount of the
overpayment to account for the employee’s out-of-pocket payment of FEHB
premiums during the overpayment period. Deutsch v. Office of Personnel
Management, 93 M.S.P.R. 261, ¶¶ 4-7 (2003). Therefore, we modify the initial
decision to find that OPM failed to establish by preponderant evidence that its
overpayment calculation is correct. We find instead that the appellant’s actual
4
OPM’s reference to “February 30, 2016” is inaccurate, as February does not have
30 days. February 29th was the last day of February in 2016.
6
overpayment is $3,304.07, which accounts for her out-of-pocket payment of
$1,014.40 in FEHB premiums during the overpayment period.
We modify the initial decision to find that the set-aside rule does not apply to the
appellant but find that she has not proven her entitlement to a waiver based on
financial hardship.
¶11 An appellant seeking waiver of an overpayment bears the b urden of
establishing her entitlement to such a waiver by substantial evidence. 5 5 C.F.R.
§ 845.307(b). OPM may waive collection of an annuity overpayment when the
annuitant is without fault and recovery would be against equity and good
conscience. 5 U.S.C. § 8470(b); Zucker v. Office of Personnel Management,
114 M.S.P.R. 288, ¶ 7 (2010). Here, it is undisputed that the appellant was not at
fault in creating the overpayment. IAF, Tab 9 at 10. The administrative judge
found, however, that the appellant was not entitled to waiver because she did not
show that recovery of the overpayment would be against equity and good
conscience. ID at 4-7.
¶12 Generally, recovery of an overpayment is against equity and good
conscience when any of the following conditions are met: (a) recovery would
cause the annuitant financial hardship; (b) the annuitant can show that, due to the
notice that such payment would be made or because of the incorrect payment , she
either has relinquished a valuable right or has changed positions for the worse ; or
(c) recovery would be unconscionable under the circumstances. 5 C.F.R.
§ 845.303; see Zucker, 114 M.S.P.R. 288, ¶ 7. When an annuitant knew or
suspected that she was receiving an overpayment, however, OPM’s set-aside rule
applies, and the annuitant is expected to set aside the overpaid money pending
recovery by OPM. See Boyd v. Office of Personnel Management, 851 F.3d 1309,
1313 (Fed. Cir. 2017) (quoting OPM’s Policy Guidelines on the Disposition of
5
Substantial evidence is the degree of relevant evidence that a reasonable person,
considering the record as a whole, might accept as adequate to support a conclusion,
even though other reasonable persons might disagree. 5 C.F.R. § 1201.4(p).
7
Overpayments under the Civil Service Retirement System and the Federal
Employees’ Retirement System (Policy Guidelines) § I.C.4 (1995)). In such a
case, recovery of the overpayment will not be waived absent “exceptional
circumstances.” Id. Financial hardship is not an “exceptional circumstance”
under the set-aside rule. Id.
¶13 The administrative judge found that the set-aside rule applied to the
appellant because OPM informed her that the interim payments were an estimate
and that she would have to repay the difference to OPM if she received more in
interim payments than her actual annuity. ID at 6. Thus, he did not consider
whether the appellant is entitled to waiver based on financial hardship. Id. On
review, the appellant argues that OPM never told her that she needed to set aside
any money for overpayment and, to the contrary, informed her that her interim
payments would be less than her actual annuity to ensure that she would not be
overpaid. PFR File, Tab 1 at 2.
¶14 While we agree with the administrative judge’s finding that OPM’s
October 14, 2015 interim pay letter placed the appellant on notice of the fact that
her interim payments were only an estimate and that adjustment would be
necessary in the event of an overpayment or underpayment , IAF, Tab 9 at 39, we
find no basis to conclude that the appellant knew or suspected that she was
receiving an overpayment so as to implicate OPM’s set-aside rule, see Policy
Guidelines § I.C.4. The U.S. Court of Appeals for the Federal Circuit has
emphasized that “[t]he set-aside rule does not apply to individuals who do not
know or suspect they are being overpaid. Those individuals do not know that the
money does not belong to them, and may act in good faith when they fail to set
aside the overpayments.” Boyd, 851 F.3d at 1315; see Okonski v. Office of
Personnel Management, 63 M.S.P.R. 446, 453 (1994) (finding that the appellant
could not reasonably have been expected to set aside money if he did not have a
reason to know that it was an overpayment). As such, “[t]o place unknowing
individuals in the same position as knowing individuals is an unreasonable
8
interpretation of the guidelines, as it renders the language requiring knowledge
superfluous.” Boyd, 851 F.3d at 1315; see Policy Guidelines § I.C.4 (stating that
“[i]ndividuals who are aware that they are receiving overpayments are obligated
by the principles of equity and good conscience to set aside the amount overpaid
pending recoupment by OPM” and that “an individual who accepted a payment
which he/she suspected or knew to be erroneous . . . is obliged to set the overpaid
money aside”).
¶15 Here, OPM’s interim payment notice specifically advised the appellant that,
although any overpayment would be deducted from future annuity payments, her
interim payments “should be less than her actual earned annuity” in order to
avoid an overpayment. IAF, Tab 9 at 39. Moreover, there is no indication that
the appellant knew or suspected that she was receiving an overpayment at any
time prior to March 16, 2016, when OPM notified her of the overpayment and
provided her the calculations relevant to her annuity. Id. at 22. In addition,
according to OPM’s reconsideration decision, the appellant received over $1,200
gross each month in interim payments for the first year while she was entitled to
only $1,058 each month before her health benefits and life insurance premiums
were taken out. Id. at 9. We find that a difference of $142 per month is not so
substantial that the appellant may be assumed to have known or suspected that her
interim payments were erroneous. See Policy Guidelines § I.C.4. Thus, we find
that the appellant reasonably assumed that she would not receive an overpayment.
IAF, Tab 1 at 1.
¶16 We further note that OPM did not argue below that the set-aside rule should
be applied in the instant case. IAF, Tab 9 at 4-6. Rather, OPM discussed the
set-aside rule only in connection with the appellant’s application for Social
Security benefits, stating that it had notified the appellant that, if she received an
award of Social Security benefits, she must set aside any payments in anticipation
of a request for recovery of the FERS overpayment. Id. at 4-5. It is undisputed,
however, that the Social Security Administration denied the appellant’s
9
application for Social Security benefits and that the overpayment at issue did not
result from a payment of such benefit. Id. at 5, 28, 38. In addition, in its
reconsideration decision, OPM denied the appellant’s reque st for waiver based on
financial hardship because she did not prove that she was unable to repay the
overpayment, not because of the set-aside rule. Id. at 10.
¶17 In light of the foregoing, we find that the appellant did not know or suspect
that she was receiving an overpayment during the overpayment period and that
the set-aside rule does not apply in this case. Therefore, financial hardship can
serve as a basis for finding that recovery is against equity and good conscience.
See Boyd, 851 F.3d at 1315; 5 C.F.R. § 831.1403(a)(1).
¶18 To show financial hardship, the annuitant must show that she “needs
substantially all of [her] current income and liquid assets to meet current ordinary
and necessary living expenses and liabilities.” 5 C.F.R. § 845.304; Policy
Guidelines § I.D.1. According to OPM’s Policy Guidelines, “[a] debtor shall
generally be deemed to need ‘substantially’ all of [her] current income to meet
current ordinary and necessary expenses if [her] monthly income does not exceed
monthly expenses by more than approximately $50 after including repayment of
the overpayment as an expense.” Policy Guidelines § I.D.9. Therefore, to
determine an annuitant’s total monthly expenses, $50 of “emergency expenses”
must be added to the annuitant’s ordinary and necessary monthly expenses . Id.;
see Davis v. Office of Personnel Management, 109 M.S.P.R. 48, ¶ 12 (2008). The
total monthly expense figure is then subtracted from total monthly income to
ascertain the annuitant’s income/expense margin. Davis, 109 M.S.P.R. 48, ¶ 12.
Even when an annuitant has a zero or negative monthly income/expense ma rgin, a
financial hardship finding may not be warranted depending on the amount of
available liquid assets. 6 Policy Guidelines § I.D.9.
6
A liquid asset is defined as cash or an asset that is readily convertible to cash with
little or no loss of value, such as a checking or savings account. Policy Guidelines
§ I.D.6.
10
¶19 Here, the appellant submitted a Financial Resources Questionnaire (FRQ),
dated October 31, 2016, reflecting a monthly income of $2,071.42 and monthly
expenses in the amount of $1,931. IAF, Tab 15 at 4-6. As noted above, she has
submitted a November 16, 2016 notice informing her that her rent would increase
from $784 per month to $808 per month, effective December 30, 2016. PFR File,
Tab 1 at 23. Therefore, her total monthly expenses now amount to $1,955.
Allowing for $50 in emergency expenses per OPM guidelines, the reported
figures yield an income/expense margin of $66.42 per month, providing the
appellant a surplus of $16.42 after paying the $50 monthly installment towards
her overpayment.
¶20 The appellant also reported on her FRQ that she has $63,000 in a checking
account. IAF, Tab 15 at 5. She argues on review, however, that this amount is
from past due child support for her two children, who are now adults, and that it
is all she has towards her retirement. PFR File, Tab 1 at 3. Thus, she appears to
contend that this liquid asset should not be considered in determining whether
recovery of the overpayment would cause her financial hardship. Id. As a
general rule, nonliquid assets and the first $5,000 in liquid assets should be
considered unavailable for recovery of an overpayment. Davis, 109 M.S.P.R. 48,
¶ 12; Policy Guidelines § I.D.8. The Policy Guidelines allow that it may be
appropriate to exclude more than $5,000 of liquid assets from consideration for
debt repayment if the annuitant’s expenses exceed her income or if she has
significant current liabilities that are not reflected in the expenses. Policy
Guidelines § I.D.8. Here, the appellant’s expenses do not exceed her income, and
she has not alleged that she has current significant liabilities that are not reflected
in her expenses. Therefore, we conclude that $58,000 of the appellant’s checking
account (i.e., $63,000 minus $5,000) constitutes available liquid assets that may
properly be considered in determining her total financial condition. See Maples
v. Office of Personnel Management, 48 M.S.P.R. 572, 577 (1991).
11
¶21 Under these circumstances, we find that the appellant has not demonstrated
that recovery of the $3,304.07 overpayment will cause her financial hardship and,
therefore, find that she is not entitled to waiver of the overpayment collection
based on financial hardship. See 5 C.F.R. § 845.304; cf. Hudson v. Office of
Personnel Management, 87 M.S.P.R. 385, ¶ 12 (2000) (finding that an annuitant
showed that recovery of annuity overpayment would be a financial hardship, and
thus against equity and good conscience, when he had no liquid assets, and his
monthly living expenses exceeded his monthly income by approximately $290);
Tatum v. Office of Personnel Management, 82 M.S.P.R. 96, ¶ 21 (1999) (stating
that an annuitant was entitled to waiver of recovery of annuity overpayment based
on financial hardship when her monthly living expenses exceeded her monthly
income by approximately $443).
The administrative judge correctly determined that the appellant is not entitled to
waiver based on unconscionability.
¶22 As noted above, an annuitant also may be entitled to waiver if she shows
that she detrimentally relied on the overpayment or that recovery of the
overpayment would be unconscionable under the circumstances. 5 C.F.R.
§ 845.303; see Zucker, 114 M.S.P.R. 288, ¶ 7. The appellant has not alleged that
she detrimentally relied on the overpayment but has argued that recovery would
be unconscionable under the circumstances because OPM cau sed the overpayment
and failed to remedy the situation in a timely manner. IAF, Tab 1 at 2, Tab 4
at 2. The administrative judge found that the appellant failed to prove that she
was entitled to waiver based on unconscionability because OPM’s delay of less
than 8 months in finalizing her annuity computation and delay of 3 months in
adjudicating her reconsideration request were not unreasonable. ID at 7. The
administrative judge also noted that the appellant did not raise her age or physical
or mental condition in asserting unconscionability. Id. On review, the appellant
argues that OPM’s delay was actually 16 months and that she did raise her age
(61 years old) and a physical disability. PFR File, Tab 1 at 2.
12
¶23 The standard for unconscionability is a high one and is granted only under
exceptional circumstances. Taylor v. Office of Personnel Management,
87 M.S.P.R. 214, ¶ 18 (2000). In assessing unconscionability, the Board
considers all relevant factors under a totality-of-the-circumstances approach.
Vojas, 115 M.S.P.R. 502, ¶ 22. Such circumstances may include, but are not
limited to, cases in which: (1) OPM delayed an exceptionally long time to adjust
an annuity; (2) OPM failed to respond within a reasonable length of time to an
annuitant’s inquiries regarding an overpayment; (3) OPM failed to act
expeditiously to adjust an annuity in the face of the specific notice; or (4) OPM
was otherwise grossly negligent in handling the case. Id. The Board also will
consider an annuitant’s personal limitations, such as lack of education, physical
or mental disability, or other factors that would make the collection of an
overpayment manifestly unfair. Aguon v. Office of Personnel Management,
42 M.S.P.R. 540, 550 (1989). In addition, in determining whether recovery of a
debt would be unconscionable under the circumstances, the Board may consider
whether collection of the overpayment would have a negative impact on an
annuitant because of her medical conditions or whether those medical conditions
require expenditure of a portion of the installment amount. Boone v. Office of
Personnel Management, 119 M.S.P.R. 53, ¶ 9 (2012).
¶24 Here, the appellant applied for disability retirement under FERS in
January 2015, and OPM notified her that it had approved her application on
August 5, 2015. IAF, Tab 9 at 42-44, 60. On October 14, 2015, OPM advised the
appellant that she had been placed in an interim payment status while it finished
processing her application. Id. at 39. On March 16, 2016, OPM notified the
appellant that she had received an overpayment in the amount of $4 ,318.47 and
provided her a repayment schedule. Id. at 22-23. The appellant requested
reconsideration on April 2, 2016, and OPM issued a reconsideration decision on
June 30, 2016. Thus, the entire process took approximately 18 months. The
Board has held that substantially longer delays, without more, do n ot render
13
recovery unconscionable. See, e.g., Spinella v. Office of Personnel Management,
109 M.S.P.R. 185, ¶¶ 7-10 (2008) (finding that OPM’s delay of 79 months to
adjust the appellant’s annuity did not render recovery of the overpayment
unconscionable); Newcomb v. Office of Personnel Management, 42 M.S.P.R. 552,
558‑59 (1989) (determining that OPM’s delay of 3 years and 10 months to render
a decision on an annuitant’s request for waiver did not render recovery of the
overpayment unconscionable).
¶25 In addition, the appellant is approximately 61 years old and has a left
shoulder impingement. IAF, Tab 4 at 2, 4. She has not shown, however, that
repayment of the monthly installment of $50 would have any negative impact on
her because of her age or medical condition and has not shown that her medical
condition requires expenditure of any of the installment amount. See Boone,
119 M.S.P.R. 53, ¶ 9; Dixon v. Office of Personnel Management, 63 M.S.P.R.
607, 610-11 (1994) (finding that recovery of an $8,994 overpayment was not
unconscionable because, among other things, the annuitant failed to show that
repayment in monthly installments of $149.90 would have any negative impact on
him because of his advanced age of 85 years, numerous medical conditions, or
low education level).
¶26 In light of the foregoing, we find that there has been no excessive delay or
other egregious conduct on OPM’s part and that the appellant’s age and left
shoulder impingement do not warrant waiver of the overpayment based on
unconscionability. Therefore, we do not disturb the administrative judge’s
determination that the appellant is not entitled to waiver of the overpayment
based on unconscionability.
The administrative judge correctly determined that the appellant is not entitled to
further adjustment of the repayment schedule.
¶27 An annuitant who is ineligible for a waiver may nonetheless be entitled to
an adjustment in the recovery schedule if she shows that it would cause her
financial hardship to make payment at the rate scheduled. Maseuli v. Office of
14
Personnel Management, 111 M.S.P.R. 439, ¶ 10 (2009); 5 C.F.R. § 845.301. As
discussed above, a financial hardship exists, for the purpose of determining
whether waiver is warranted, when the debtor needs substantially all of her
current income and liquid assets to meet current ordinary and necessary living
expenses. 5 C.F.R. § 845.304; Policy Guidelines § I.D.1. In determining whether
an individual is entitled to an adjustment of the repayment schedule based on
financial hardship, the standard is ordinarily not applied as strictly as it is in
determining entitlement to waiver. Wagner v. Office of Personnel Management,
83 M.S.P.R. 355, ¶ 6 (1999).
¶28 In its reconsideration decision, OPM agreed to reduce the appellant’s
monthly installment from $119.95 to $50. IAF, Tab 9 at 10. T he administrative
judge found that the appellant was not eligible for further adjustment of OPM’s
repayment schedule because a monthly installment of $50 did not exceed her
demonstrated monthly income/expense margin. ID at 9. As discussed above, the
appellant has since experienced a rent increase, but her reported monthly
expenses, including the monthly installment of $50, still do not exceed her
monthly income, and she has $58,000 in a checking account that is considered
available for repayment of the debt. PFR File, Tab 1 at 23. Therefore, we find no
basis to disturb the administrative judge’s determination that the appellant is not
entitled to further adjustment of the repayment schedule based on financial
hardship. 7
7
Our decision in this matter does not preclude the appellant from exercising any right
that she may have to make a mid-collection request to OPM for modification of the
repayment schedule, compromise, suspension, or write -off, as provided for under any
applicable law, rule, regulation, or OPM guideline. See 5 C.F.R. § 845.301; see also
Hundley v. Office of Personnel Management, 83 M.S.P.R. 632, ¶ 16 (1999) (finding that
any effects of a future medical emergency could be addressed by a mid -collection
request to OPM for lower payments, compromise, suspension, or write -off).
15
ORDER
¶29 We ORDER OPM to modify the amount of the appellant’s assessed
overpayment to $3,304.07. 8 OPM must complete this action no later than 20 days
after the date of this decision.
¶30 We also ORDER OPM to tell the appellant promptly in writing when it
believes it has fully carried out the Board’s Order and of the actions it has taken
to carry out the Board’s Order. We ORDER the appellant to provide all necessary
information OPM requests to help it carry out the Board’s Order. The appellant,
if not notified, should ask OPM about its progress. See 5 C.F.R. § 1201.181(b).
¶31 No later than 30 days after OPM tells the appellant that it has fully carried
out the Board’s Order, the appellant may file a petition for enforcement with the
office that issued the initial decision on this appeal if the appellant believes that
OPM did not fully carry out the Board’s Order. The petition should contain
specific reasons why the appellant believes that OPM has not fully carried out the
Board’s Order, and should include the dates and results of any communications
with OPM. 5 C.F.R. § 1201.182(a).
NOTICE TO THE APPELLANT REGARDING
YOUR RIGHT TO REQUEST
ATTORNEY FEES AND COSTS
¶32 You may be entitled to be paid by OPM for your reasonable attorney fees
and costs. To be paid, you must meet the requirements set forth at title 5 of the
United States Code (5 U.S.C.), sections 7701(g), 1221(g), or 1214(g). The
regulations may be found at 5 C.F.R. §§ 1201.201, 1201.202, and 1201.203. If
8
OPM has advised the Board that it may seek recovery of any debt remaining upon an
appellant’s death from the appellant’s estate or other responsible party. A party
responsible for any debt remaining upon the appellant’s death may include an heir
(spouse, child, or other) who is deriving a benefit from the appellant’s Federal benefits,
an heir or other person acting as the representative of the estate if, for example, the
representative fails to pay the United States before paying the claims of other creditors
in accordance with 31 U.S.C. § 3713(b), or transferees or distributers of the appellant’s
estate. Pierotti v. Office of Personnel Management, 124 M.S.P.R. 103, ¶ 13 (2016).
16
you believe you meet these requirements, you must file a motion for attorney fees
and costs WITHIN 60 CALENDAR DAYS OF THE DATE OF THIS DECISION.
You must file your motion for attorney fees and costs with the office that issued
the initial decision on your appeal.
NOTICE OF APPEAL RIGHTS 9
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. 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
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
9
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.
17
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
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
18
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
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
19
(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. 10 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:
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.
10
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
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.
20
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.
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.