Dennis W Trujillo v. Office of Personnel Management ( 2024 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
DENNIS W. TRUJILLO, DOCKET NUMBER
Appellant, DE-0845-20-0355-I-1
v.
OFFICE OF PERSONNEL DATE: November 14, 2024
MANAGEMENT,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Dennis W. Trujillo , Denver, Colorado, pro se.
Michael Shipley , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
affirmed a final decision of the Office of Personnel Management (OPM), found
that the appellant was overpaid by $47,619 in retirement annuity benefits, denied
the appellant’s request for a waiver of the debt, and denied an adjustment to the
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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 in the
following circumstances: 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. 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. We MODIFY the initial decision to
find that the appellant was without fault in the overpayment, but we still find that
the appellant is not entitled to a waiver of the overpayment. We VACATE the
portion of the initial decision finding that the appellant is not entitled to an
adjustment of the repayment schedule because the Board lacks jurisdiction to
consider an adjustment in this case. Except as so expressly MODIFIED, we
AFFIRM the initial decision.
BACKGROUND
The appellant applied for workers’ compensation benefits from the Office
of Workers’ Compensation Programs (OWCP) and disability retirement benefits
through the Federal Employees’ Retirement System (FERS). Initial Appeal File
(IAF), Tab 6 at 51-54. In his application for FERS benefits, the appellant stated
that his claim for OWCP benefits was pending, and he acknowledged that he
could not receive benefits from FERS and OWCP at the same time. Id. at 54. He
also checked a box authorizing OPM to collect any overpayment if he was found
to have received dual compensation from both FERS and OWCP. Id. On or
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about July 12, 2018, OPM notified the appellant that it authorized interim FERS
annuity payments. Id. at 8, 45-46; IAF, Tab 32 at 4. Eight days later, on July 20,
2018, the appellant mailed a letter to OPM requesting that it stop FERS payments
because he was electing to receive OWCP payments instead. IAF, Tab 6
at 47-48. OPM did not immediately stop the payments, and the appellant received
both FERS annuity payments and OWCP benefits for the time period between
January 1, 2018, and April 30, 2019, resulting in an overpayment of $47,619. Id.
at 20-21.
After OPM notified him of the overpayment, the appellant requested a
waiver. Id. at 14-18. OPM issued a final decision denying the appellant’s request
for a waiver because he should have known to set aside the erroneous payments
and finding that he was not entitled to an adjustment of the repayment schedule
because he failed to demonstrate financial hardship. Id. at 8-11. OPM advised
the appellant that, if he did not elect to enter into the installment repayment
agreement or file an appeal with the Board, the total balance would become due.
IAF, Tab 1 at 11-12. The appellant did not remit a lump sum or enter the
repayment agreement, but he elected to file a Board appeal. IAF, Tab 1. The
administrative judge affirmed OPM’s reconsideration decision. IAF, Tab 37,
Initial Decision (ID). The appellant has filed a petition for review, and OPM has
filed a response. Petition for Review (PFR) File, Tabs 1-4.
DISCUSSION OF ARGUMENTS ON REVIEW
On review, the appellant has not challenged the existence or amount of an
overpayment. PFR File, Tab 1. The appellant argues that he is entitled to a
waiver or, in the alternative, that he is entitled to an adjustment of the repayment
schedule because of financial hardship. Id. at 4-5. He also challenges the
administrative judge’s discovery rulings and requests that his doctor be permitted
to testify about his state of mind at the time of the overpayment. Id.4
The appellant is not entitled to a waiver.
Recovery of an overpayment may be waived if the appellant is “without
fault” for the overpayment and “recovery would be against equity and good
conscience.” 5 C.F.R. § 845.301. The prompt notification exception creates an
automatic finding of no fault for individuals who contact OPM within 60 days of
the receipt of an overpayment to question the correctness of the payment. IAF,
Tab 5 at 12; see Boyd v. Office of Personnel Management, 851 F.3d 1309,
1313-14 (Fed. Cir. 2017) (applying the prompt notification exception).
The administrative judge’s finding that the appellant delayed contacting
OPM by 6 months after the overpayment is erroneous. 2 ID at 2. OPM notified
the appellant on or around July 12, 2018, that it authorized interim payments.
IAF, Tab 6 at 8, 45-46, Tab 32 at 4. On July 20, 2018, the appellant mailed a
letter to OPM requesting to stop FERS payments because he was electing to
instead receive OWCP payments. IAF, Tab 6 at 47-48. Because the appellant
contacted OPM within 60 days of receiving notification of approval and the
commencement of benefits, we find that the prompt notification exception applies
and he is not at fault for the overpayment.
We next consider whether it would be against equity and good conscience
to require the appellant to repay the benefits. OPM’s guidelines state, “an
individual who accepted a payment which he/she suspected or knew to be
erroneous but who is found without fault under the Prompt Notification Exception
. . . is obliged to set the overpaid money aside pending recovery by OPM.” IAF,
Tab 5 at 15 (emphasis in original). This is known as the set-aside rule. Absent
exceptional circumstances, recovery by OPM in these cases is not against equity
and good conscience, and financial hardship is not an exceptional circumstance.
James v. Office of Personnel Management, 72 M.S.P.R. 211, 217 (1996). On
review, the appellant reasserts his argument that he did not know of the
2
To the extent that the administrative judge found that the erroneous 6-month delay
diminished the appellant’s credibility, we vacate that finding. ID at 2 n.2.
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overpayment. PFR File, Tab 1 at 4-5. The appellant alleges that he was receiving
various benefits around the same time and was unaware of the source of the
payments that were being deposited into his account. Id. We agree with the
administrative judge’s finding that the appellant knew or should have known that
he was receiving an overpayment based on his July 20, 2018 letter to OPM, as
well as his acknowledgment in his application for FERS benefits that he was not
entitled to receive FERS and OWCP benefits at the same time. ID at 4-5 & n.6.
Because the set-aside rule required the appellant to preserve the money for
repayment, we find that recovery is not against equity and good conscience. Id.Nevertheless, we are mindful that it was OPM that helped create this situation.
Specifically, instead of promptly processing the appellant’s request to cease
payments, OPM continued to pay the appellant for approximately 9 months and
now must use government resources to recover the substantial overpayment that
resulted from its lack of action.
The Board lacks jurisdiction to address the appellant’s possible entitlement to an
adjustment of the repayment schedule.
In Fearon v. Office of Personnel Management, 107 M.S.P.R. 122, ¶¶ 14-15
(2007), the Board held that it lacks jurisdiction to address an appellant’s possible
entitlement to an adjustment of the repayment schedule when there is no
repayment schedule in effect at the time the debt is to be collected. The Board
explained that its authority is limited to OPM actions or orders that affect the
appellant’s “rights or interests” under the Civil Service Retirement System
(CSRS). 3 Id. It concluded that because the appellant was no longer receiving an
annuity, OPM’s attempts to recover the overpayment by other means, either by
persuading her to enter into a voluntary repayment agreement or by referring the
matter to the Department of the Treasury or the Department of Justice, did not
affect her “rights or interests” under the CSRS. Id. The Board has recognized an
3
Because the “rights or interests” language of 5 U.S.C. § 8347(d)(1), under CSRS, is
identical to the language in 5 U.S.C. § 8461(e)(1), under FERS, we find that the
reasoning in Fearon is applicable to cases arising under FERS.
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exception to this general rule and has found jurisdiction when an appellant is
receiving a recurring payment from another source from which the debt can be
offset, such as OWCP benefits. See Martin v. Office of Personnel Management,
119 M.S.P.R. 188, ¶ 9 n.4 (2013); Alexander v. Office of Personnel Management,
114 M.S.P.R. 122, ¶¶ 11-12 (2010).
Here, it is undisputed that the appellant is not receiving an annuity and
there is no repayment schedule in effect at this time. IAF, Tab 11 at 3, Tab 32
at 4. Though the appellant is receiving OWCP benefits, the record reflects that
the overpayment is not being offset from the appellant’s OWCP benefits. IAF,
Tab 11 at 3. As in Fearon, OPM has stated that the debt will be collected by the
Department of the Treasury. Id.; see Fearon, 107 M.S.P.R. 122, ¶ 4.
Accordingly, we lack authority to adjudicate the appellant’s possible entitlement
to an adjustment to the repayment schedule, and we vacate the initial decision
regarding this finding. See Miller v. Office of Personnel Management,
123 M.S.P.R. 68, ¶ 13 (2015) (finding no jurisdiction to consider an adjustment
of the repayment schedule when there was no repayment schedule in effect at the
time of the action and there was no indication in the record that OPM was seeking
to offset another of the appellant’s recurring payments to recover the
overpayment).
The administrative judge did not abuse his discretion in denying the appellant’s
discovery requests.
On review, the appellant argues that the administrative judge erred by
denying various discovery requests. PFR File, Tab 1 at 5. An administrative
judge has broad discretion in ruling on discovery matters, and the Board will not
reverse an administrative judge’s rulings on discovery matters absent an abuse of
discretion. Kingsley v. U.S. Postal Service, 123 M.S.P.R. 365, ¶ 16 (2016). The
administrative judge denied the appellant’s request for discovery of “evidence
regarding other cases in which financial hardship was granted or denied” as
untimely without good cause and, in the alternative, because it is beyond the
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scope of permissible discovery for the agency. IAF, Tab 28 at 2. The appellant
did not object to the administrative judge’s denial and did not file a motion to
compel as required by 5 C.F.R. § 1201.73(c), (d)(3) (2020). The appellant does
not state in his petition for review that his request was timely, and he does not
explain why the requested information is relevant. We find that the
administrative judge did not abuse his discretion in denying the appellant’s
discovery request for this information. Fisher v. Department of Defense,
59 M.S.P.R. 165, 170-71 (1993) (finding the administrative judge did not err in
denying the appellant’s request for discovery when the request was not timely
made in accordance with the administrative judge’s order); Radziewicz v. U.S.
Postal Service, 42 M.S.P.R. 692, 695-97 (1990) (finding an administrative judge
did not err in denying discovery when the appellant failed to exercise due
diligence in pursuing discovery by filing a motion to compel).
The appellant also asserts that the administrative judge erred by not
allowing discovery of “prior cases the OPM representative worked on” and a
“special expense list.” PFR File, Tab 1 at 5. The administrative judge’s
acknowledgment order provided basic discovery instructions to the appellant and
referred him to the applicable regulations. IAF, Tab 2 at 3-4. There is no
indication in the record that the appellant requested these documents before the
deadline to initiate discovery expired. IAF, Tab 28 at 2. We find that the
appellant’s failure to avail himself of the opportunity to engage in discovery is
not attributable to the administrative judge. See Clark v. U.S. Postal Service,
123 M.S.P.R. 466, ¶ 16 (2016), aff’d per curium, 679 F. App’x 1006 (Fed. Cir.
2017), overruled on other grounds by Cronn v. U.S. Postal Service , 2022 MSPB
13, ¶ 20 n.11.
Finally, the appellant requests that his doctor be permitted to testify
regarding his mental state at the time of the overpayment. PFR File, Tab 1 at 4-5.
There is no evidence that the appellant made this request before the
administrative judge. See, e.g., IAF, Tab 33 at 1. The Board will not consider
8
evidence submitted for the first time in the petition for review absent a showing
that it was unavailable before the record closed despite the party’s due diligence.
Avansino v. U.S. Postal Service, 3 M.S.P.R 211, 214 (1980). The appellant has
not alleged that his doctor’s testimony was not available prior to the close of the
record, and we, therefore, deny the appellant’s request for his doctor to testify.
Brown v. U.S. Postal Service, 62 M.S.P.R. 76, 79-80 (1994) (finding the appellant
did not exercise due diligence in attempting to obtain evidence before the
administrative judge when he did not file a discovery request or a motion to
compel discovery, and, therefore, he was not permitted to present the evidence for
the first time in his petition for review).
The appellant’s remaining arguments dispute the administrative judge’s
findings regarding financial hardship and adjustment of the repayment schedule.
Because we lack jurisdiction to adjust the repayment schedule, we need not
address those arguments. Based on the foregoing, we vacate the findings in the
initial decision relating to the appellant’s request for an adjustment to the
repayment schedule and we affirm the initial decision as explicitly modified
herein.
NOTICE OF APPEAL RIGHTS 4
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
4
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.
9
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
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
10
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. 420 (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
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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
(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. 5 The court of appeals must receive your petition for
5
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.
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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.
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.
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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: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.