Bonnie J. MacGregor v. Office of Personnel Management ( 2016 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
BONNIE J. MACGREGOR, DOCKET NUMBER
Appellant, PH-0845-15-0340-I-2
v.
OFFICE OF PERSONNEL DATE: July 27, 2016
MANAGEMENT,
Agency.
THIS ORDER IS NONPRECEDENTIAL 1
Bonnie J. MacGregor, Eastport, Maine, pro se.
Roxann Johnson, Washington, D.C., for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Mark A. Robbins, Member
REMAND ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
vacated the final decision of the Office of Personnel Management (OPM) and
remanded to OPM for issuance of a new final decision addressing the appellant’s
arguments regarding the calculation of her annuity. Generally, we grant petitions
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
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.
¶2 In 2012, OPM granted the appellant’s request for a disability retirement
annuity and began paying interim payments. Initial Appeal File (IAF), Tab 4.
When OPM finalized its calculation of the appellant’s disability annuity, it issued
a reconsideration decision finding that she had been overpaid $19,977.00. Id.
¶3 The appellant appealed the reconsideration decision. IAF, Tab 1. In an
initial decision, the administrative judge noted that during adjudication, most of
the appellant’s claims regarding the overpayment amount related to her assertion
that the disability annuity had been improperly calculated. Refiled Appeal File, 2
Tab 12, Refiled Initial Decision. He also noted that the appellant asserted that
her annuity had been improperly calculated in her request for reconsideration
decision to OPM. Id. The administrative judge found that the calculation of the
appellant’s annuity was material to the amount of her overpayment, and OPM
failed to address the issue in its reconsideration decision. Id. Thus, the
administrative judge remanded the appeal to OPM for issuance of a
2
The administrative judge dismissed the appellant’s initial appeal without prejudice to
allow her to gather information to challenge OPM’s calculation of her annuity. The
appeal was timely refiled.
3
reconsideration decision that addressed all of the appellant’s arguments regarding
the calculation of her annuity. Id.
¶4 In her petition for review, the appellant challenges the initial decision and
asks the Board to adjudicate her overpayment and to waive the overpayment
because OPM’s refusal to answer her questions about the calculation of her
annuity have caused her so much stress. Petition for Review (PFR) File, Tab 1.
OPM filed a response to the appellant’s petition. PFR File, Tab 4.
¶5 It is well settled that the Board only has jurisdiction over retirement issues
that have been the subject of an OPM reconsideration decision. Litzenberger v.
Office of Personnel Management, 88 M.S.P.R. 419, ¶ 9 (2001); Lewis v. Office of
Personnel Management, 69 M.S.P.R. 395, 397–98 (1996). Here, as the
administrative judge correctly found, OPM, in its reconsideration decision, did
not address the material question in this overpayment appeal that the appellant
raised in her request for reconsideration, namely, the proper calculation of her
annuity. Thus, he properly remanded the case to OPM for issuance of a new
reconsideration decision because OPM previously had not addressed all issues
necessary for adjudication of the appeal. Litzenberger, 88 M.S.P.R. 419, ¶¶ 9-10.
Consequently, the Board cannot adjudicate the appellant’s claims challenging the
overpayment until OPM issues a reconsideration decision addressing all of the
issues raised by the appellant in her request for reconsideration.
ORDER
We remand this case to OPM to issue a new reconsideration decision within
120 days of the date of this Order that includes findings on the appellant’s
arguments regarding the calculation of her annuity, as well as findings regarding
the overpayment. The reconsideration decision shall be subject to the appellant’s
further right to appeal to the Board if she disagrees with it. See, e.g.,
Litzenberger, 88 M.S.P.R. at 424; Walsh v. Office of Personnel
Management, 77 M.S.P.R. 494, 501 (1998).
4
We also ORDER OPM to tell the appellant promptly in writing when it
believes it has fully carried out the Board’s Order and to describe the actions it
took 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).
No later than 30 days after OPM tells the appellant 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 OPM has not fully carried out the
Board’s Order, and should include the dates and results of any communications
with OPM. See 5 C.F.R. § 1201.182(a).
FOR THE BOARD: ______________________________
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.