Rodriguez v. Office of Personnel Management , 427 F. App'x 878 ( 2011 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
__________________________
MARY F. RODRIGUEZ,
Petitioner,
v.
OFFICE OF PERSONNEL MANAGEMENT,
Respondent.
__________________________
2011-3035
__________________________
Petition for review of the Merit Systems Protection
Board in Case No. DC844E090636-I-1.
_________________________
Decided: April 12, 2011
_________________________
MARY F. RODRIGUEZ, of Cary, North Carolina, pro se.
ELLEN M. LYNCH, Trial Attorney, Commercial Litiga-
tion Branch, Civil Division, Classification Unit, United
States Department of Justice, Washington, DC, for re-
spondent. With her on the brief were TONY WEST, Assis-
tant Attorney General, JEANNE E. DAVIDSON, Director,
and DEBORAH A. BYNUM, Assistant Director.
__________________________
RODRIGUEZ v. OPM 2
Before RADER, Chief Judge, LINN and O’MALLEY, Circuit
Judges.
PER CURIAM.
Mary F. Rodriguez (“Rodriquez”) appeals the final de-
cision of the Merit Systems Protection Board (“the Board”)
affirming: (1) the Office of Personnel Management’s
(“OPM”) decision to terminate her disability retirement
annuity on grounds that she was restored to earning
capacity; and (2) OPM’s decision that she was overpaid
$7,430.88 in annuity benefits, and was required to repay
that amount. Rodriguez v. Office of Pers. Mgmt., No. DC-
844E-09-0636-I-1, 2010 MSPB LEXIS 32, *14 (Jan. 6,
2010) (“Initial Decision”); Rodriguez v. Office of Pers.
Mgmt., 2010 MSPB LEXIS 5709 (Sept. 30, 2010) (“Final
Decision”). For the reasons explained below, we affirm.
BACKGROUND
From September 13, 1998 until September 30, 2006,
Rodriguez worked as a Staff Nurse for the Department of
Veteran’s Affairs (“DVA”) in Durham, North Carolina.
Although she initially worked as a full-time employee,
beginning in April 2000, Rodriguez reduced her schedule
to 36 hours per week. On August 22, 2004, she decreased
her work schedule to 30 hours per week. Finally, from
October 31, 2004 until her retirement on September 30,
2006, Rodriguez worked a part-time schedule of 24 hours
per week.
Rodriguez submitted an application for a disability re-
tirement annuity under the Federal Employees Retire-
ment System (“FERS”). By letter dated June 14, 2006,
OPM approved her application, and, on September 30,
2006, Rodriguez retired under FERS due to disability.
Under FERS, an employee who retires due to disabil-
ity can work in the private sector while receiving a dis-
3 RODRIGUEZ v. OPM
ability annuity benefit, as long as the annuitant’s income
does not exceed “80 percent of the current rate of pay of
the position occupied immediately before retirement.” 5
U.S.C. § 8455(a)(2). Although the record is not clear as to
its source, it is undisputed that Rodriguez’s income for
2006 was $45,479.
On October 31, 2007, OPM sent Rodriguez a letter no-
tifying her that she had received an overpayment of
annuity benefits. The letter explained that her earnings
in 2006 exceeded 80% of the current salary for the posi-
tion she held prior to retirement. OPM indicated that she
was restored to earning capacity effective July 1, 2007,
and therefore was not entitled to the benefits she received
between July 1, 2007 and September 30, 2007. This
resulted in an overpayment of $7,492, which, after deduc-
tion of the life insurance premiums recoverable from other
sources, resulted in a net overpayment of $7,430.88. As
the government concedes, this initial correspondence
regarding overpayment failed to advise Rodriguez of her
right to seek reconsideration and her right to seek a
waiver.
By letter dated November 9, 2007, OPM notified Rod-
riguez that she was not entitled to continued disability
annuity payments because she was restored to earning
capacity. The letter explained that, under FERS, “a
disability annuitant who is under age 60 and earns, in
any calendar year, at least 80 percent of the current rate
of basic pay for the position occupied immediately before
retirement is considered to be restored to earning capac-
ity.” Because Rodriguez’s income for 2006 – $45,479 –
exceeded 80% of rate of basic pay on December 31, 2006
for the position she occupied immediately prior to retire-
ment, she was considered restored to earning capacity
and was therefore no longer entitled to receive a disability
RODRIGUEZ v. OPM 4
annuity benefit, “even though [her] medical condition may
not have changed.”
On March 14, 2008, Rodriguez, through counsel,
sought reconsideration of OPM’s initial decision. In the
request for reconsideration, Rodriguez argued that OPM
incorrectly compared her post-retirement earnings to the
basic rate of pay for a part-time position when, in fact, the
“position she retired from was staff nurse, not staff nurse
(part-time).” Rodriguez explained that she reduced her
schedule to part-time, and eventually had to retire, be-
cause she suffers from erosive osteoarthritis in her hands.
As such, she argued, OPM should have compared her
post-retirement earnings “to the actual pay for the full-
time position she would have occupied if her medical
condition, which forced her into retirement, had not forced
her first to go to part time and then to retire.” According
to Rodriguez, this method of calculation would be “consis-
tent with the policy of the Rehabilitation Act that the
employee and the government work together to try to
keep the employee at work.”
OPM subsequently issued a second notice informing
Rodriguez that she received an overpayment of annuity
benefits. This time, OPM explained that she had a right
to request reconsideration of the overpayment decision or
waiver of repayment. Enclosed with the letter was:
(1) information regarding the process for requesting a
waiver due to financial hardship; (2) a form document
entitled “Request for Reconsideration, Waiver, Compro-
mise, Deferral or Repayment Agreement;” and (3) a
Financial Resources Questionnaire (“FRQ”), which, if
completed, would be used to assess her ability to make
repayment. On December 10, 2008, Rodriguez completed
the “Request for Reconsideration” form indicating that
she sought reconsideration of the overpayment decision.
5 RODRIGUEZ v. OPM
She did not request a waiver, submit a FRQ, or otherwise
indicate that she was unable to make repayment.
On June 1, 2009, OPM issued a reconsideration deci-
sion affirming its decision to terminate Rodriguez’s dis-
ability retirement annuity. In the decision, OPM
explained that, as of December 31, 2006, the base salary
for a DVA nurse at grade and step AD-02 was $73,800.
Because Rodriguez worked 24 hours per week, OPM pro-
rated the full-time base salary of $73,800 to reflect her
part-time status, and concluded that her basic pay as of
December 31, 2006 would have been $44,280 (60% of
$73,800). The statutory 80% limit, as of December 31,
2006, was $35,424 (80% of $44,280 is $35,424). Because
Rodriguez’s reported income for 2006 was $45,479, she
earned more than the 80% limit, and her annuity should
have terminated on June 30, 2007. See 5 CFR
§ 844.402(a) (“The disability annuity will terminate on the
June 30 after the end of the calendar year in which earn-
ing capacity is restored.”).
On June 23, 2009, Rodriguez, through counsel, ap-
pealed the OPM’s final decision to the Board. In her
appeal, Rodriguez argued that OPM improperly used her
“last salary at DVA to calculate the 80% restoration to
earning capacity.” According to Rodriguez, OPM “should
have used the full salary of [her] regular position,” be-
cause her last salary at DVA was reduced due to her
medical condition.
In an initial decision dated January 6, 2010, the Ad-
ministrative Judge (“AJ”) affirmed OPM’s decision to
terminate Rodriguez’s disability annuity because she was
restored to earning capacity. The AJ conducted a hearing,
during which Rodriguez testified that “her erosive os-
teoarthritis made it difficult for her to use her hands,
which adversely affected her ability to perform her job
RODRIGUEZ v. OPM 6
duties.” Initial Decision, 2010 MSPB LEXIS 32 at *6-7.
She also testified that “her physician recommended that
she become a permanent part-time employee, which she
did.” Id. at *7. Because it was undisputed that Rodriguez
was working part-time prior to retirement, the AJ found
that “OPM properly determined her base salary and
adjusted it to reflect that she occupied a part-time posi-
tion.” Id. at *10. 1 And, because her 2006 earnings ex-
1 During the hearing, Rodriguez testified that she
sought accommodation for her medical conditions. Initial
Decision, 2010 MSPB LEXIS 32 at *7. In a footnote in his
initial decision, the AJ noted that, if the DVA
improperly documented her status as part time
and now certifies an amended individual retire-
ment record to OPM, OPM might be required to
reconsider this matter. Moreover, it appears that
if the agency placed the appellant in a part-time
status as a reasonable accommodation for a dis-
abling condition and provided notice to OPM, a
higher rate of basic pay might have been estab-
lished. See 5 C.F.R. § 831.1209(b). In either
event, it seems the appellant would be required to
obtain further documentation from her former
employing agency.
Initial Decision, 2010 MSPB LEXIS 32 at *9 n.3. Section
831.1209 applies to disability retirement under the Civil
Service Retirement System (“CSRS”). It provides, in part,
that,
A disability annuitant’s income for a calendar
year is compared to the gross annual rate of basic
pay in effect on December 31 of that year for the
position occupied immediately before retirement.
The income for most disability annuitants is based
on the rate for the grade and step which reflects
the total amount of basic pay (both the grade and
step and any additional basic pay) in effect on the
date of separation from the agency for disability
retirement. . . . A higher grade and step will be es-
tablished if it results from using either the date of
7 RODRIGUEZ v. OPM
ceeded 80% of the current rate of pay for the position she
held immediately prior to retirement, the AJ found that
Rodriguez was restored to earning capacity. The AJ
further found that Rodriguez was not entitled to a waiver
of recovery for the overpayments she received between
July 1, 2007 and October 30, 2007, because she: (1) failed
to submit evidence that she was without fault and that
recovery would be against equity and good conscience;
and (2) failed to demonstrate financial hardship.
Rodriguez filed a petition for review, requesting that
the full Board reconsider the AJ’s initial decision. Specifi-
cally, Rodriguez argued that OPM’s use of a pro-rated
salary, rather than a full-time salary, “penalizes her
because of her disability.” Final Decision, 2010 MSPB
LEXIS 5709 at *1-2. She also argued that the AJ failed to
“address her argument below that it is the policy of the
Rehabilitation Act of 1973 to keep employees at work and
unfair to penalize an employee for reducing her work
hours.” Id. at *1. The Board found that Rodriguez failed
to either: (1) present new or previously unavailable evi-
dence; or (2) show that the AJ made an error interpreting
the law or regulation. Accordingly, the Board denied
Rodriguez’s petition for review, and the AJ’s initial deci-
sion became final.
Rodriguez timely appealed to this court. We have ju-
risdiction pursuant to 28 U.S.C. § 1295(a)(9).
application for disability retirement or the date of
reasonable accommodation, as adjusted by any in-
creases in basic pay that would have been effected
between each respective date and the date of final
separation.
§ 831.1209(b)(1). Neither party argued that CSRS, rather
than FERS, should have applied, or that OPM should
have considered § 831.1209(b) in determining whether
Rodriguez was restored to earning capacity.
RODRIGUEZ v. OPM 8
STANDARD OF REVIEW
Our review of the Board’s decisions is limited. Hamel
v. President’s Comm’n on Exec. Exch., 987 F.2d 1561, 1564
(Fed. Cir. 1993) (“We review Board decisions under a very
narrow standard.”). By statute, we must affirm a decision
from the Board unless it is “(1) arbitrary, capricious, an
abuse of discretion, or otherwise not in accordance with
law; (2) obtained without procedures required by law,
rule, or regulation having been followed; or
(3) unsupported by substantial evidence.” 5 U.S.C.
§ 7703(c). Substantial evidence is “such relevant evidence
as a reasonable mind might accept as adequate to support
a conclusion.” McEntee v. Merit Sys. Prot. Bd., 404 F.3d
1320, 1325 (Fed. Cir. 2005) (quoting Consol. Edison Co. v.
NLRB, 305 U.S. 197, 229 (1938)). The petitioner bears
the burden of establishing any errors in the Board’s
decision. Harris v. Dep’t of Veterans Affairs, 142 F.3d
1463, 1467 (Fed. Cir. 1998); see also Cheeseman v. Office
of Pers. Mgmt, 791 F.2d 138, 140 (Fed. Cir. 1986).
DISCUSSION
On appeal, Rodriguez argues that the Board erred in
affirming OPM’s decision to terminate her disability
retirement annuity because it: (1) failed to consider
certain facts; and (2) applied the wrong law. With respect
to the facts, Rodriguez alleges that the Board should have
considered the fact that she was working part-time prior
to retirement because her disability prevented her from
continuing in a full-time position. With respect to the
law, Rodriguez argues that the Board should have applied
the Rehabilitation Act of 1973. Finally, as to the Board’s
overpayment decision, Rodriguez submits that she did not
realize she needed to request a waiver of recovery of the
overpaid amounts.
9 RODRIGUEZ v. OPM
In response, the government argues that: (1) the
Board properly determined that Rodriguez was restored
to earning capacity because her post-retirement income
exceeded 80% of the basic pay for the part-time position
from which she retired; (2) nothing in the language of the
relevant FERS statute requires the Board to consider the
Rehabilitation Act when determining whether an annui-
tant is restored to earning capacity; and (3) Rodriguez
failed to present any evidence that she was entitled to a
waiver of recovery of the overpayment.
For the reasons set forth below, we find the govern-
ment’s arguments well-taken. Because we find no error in
the Board’s decision, we affirm.
I.
Under FERS, a disability retirement annuity will
terminate when the annuitant is restored to earning
capacity. Specifically, 5 U.S.C. § 8455(a)(2) provides, in
part, that,
if an annuitant receiving a disability annuity from
the Fund, before becoming 60 years of age, is re-
stored to an earning capacity fairly comparable to
the current rate of pay of the position occupied at
the time of retirement, payment of the annuity
terminates 180 days after the end of the calendar
year in which earning capacity is so restored.
Earning capacity is restored if, “in any calendar year the
income of the annuitant from wages or self-employment or
both equals at least 80 percent of the current rate of pay
of the position occupied immediately before retirement.”
Id. OPM’s regulation governing restoration of earning
capacity provides that:
A disability annuitant’s income for a calendar
year is compared to the gross annual rate of basic
RODRIGUEZ v. OPM 10
pay in effect on December 31 of that year for the
position occupied immediately before retirement.
The income limitation for most disability annui-
tants is based on the rate for the grade and step
that reflects the total amount of basic pay (both
the grade and step and any additional basic pay)
in effect on the date of separation from the agency
for disability retirement.
5 CFR § 844.402(b)(1).
As the Board recognized in its final decision, neither
the FERS statute, 5 U.S.C. § 8455, nor the related OPM
regulation, 5 C.F.R. § 844.402, directly address the issue
of pro-rating an annuitant’s rate of pay for a full-time
position to reflect the fact that she worked part-time. In
its final decision, however, the Board cited to this court’s
decision in Crockett v. Office of Pers. Mgmt., 783 F.2d 193,
195 (Fed. Cir. 1986) for the proposition that “the proper
comparison [i]s between an appellant’s income and the
part-time rate of pay in his prior position.” Final Deci-
sion, 2010 MSPB LEXIS 5709 at *3; see also Initial Deci-
sion, 2010 MSPB 32 at 10 (citing Crockett and finding
that “OPM properly determined her base salary and
adjusted it to reflect that she occupied a part-time posi-
tion”).
In Crockett, the annuitant was employed part-time
and retired with a disability retirement annuity under the
Civil Service Retirement System, 5 U.S.C. § 8337(d)
(“CSRS”). 2 After retirement, he began working full-time
2 FERS was created to replace CSRS. See Roman v.
Central Intelligence Agency, 297 F.3d 1363, 1370 (Fed.
Cir. 2002). Both statutes contain identical language
regarding restoration to earning capacity in the disability
retirement context. Compare 5 U.S.C. § 8337(d) (“Earn-
ing capacity is deemed restored if in any calendar year
the income of the annuitant from wages or self-
11 RODRIGUEZ v. OPM
in a non-government position, and OPM found that he
was restored to earning capacity because his post-
retirement income exceeded his pre-retirement salary.
Crockett, 783 F.2d at 194. The annuitant first argued
that OPM erred in comparing his full-time post-
retirement income to the salary from his prior part-time
government position. According to the annuitant, OPM
should have compared the “rate of pay” for his current
work with that of his former position. Id. at 195. The
court dismissed this argument, finding that “the statute
requires a calculation based on income from wages or self-
employment in the years following retirement, not the
rate of pay for that work. ‘Rate of pay’ enters into the
calculations only in determining the current wages of his
former position.” Id. (emphasis in original). The court
emphasized that the CSRS “requires use of the current
rate of pay of the position occupied by the annuitant
immediately before retirement.” Id. at 195. (emphasis in
original). Because the annuitant “occupied a part-time,
not full-time position,” the court found “no error in a
comparison with the yearly rate of pay for a part-time
position since that is the position he occupied.” Id.
employment or both equals at least 80 percent of the
current rate of pay of the position occupied immediately
before retirement”) with 5 U.S.C. § 8455(a)(2) (same). In
Crockett, the court cited to an earlier version of § 8337(d),
which provided that “[e]arning capacity is deemed re-
stored if in each of 2 succeeding calendar years the income
of the annuitant from wages or self-employment or both
equals at least 80 percent of the current rate of pay of the
position occupied immediately before retirement.” 783
F.2d at 194 (citing § 8337(d)). Section 8337(d) was
amended in 1982 to substitute “any calendar year” for
“each of 2 succeeding calendar years.” With that amend-
ment, the provisions regarding restored earning capacity
under § 8337(d) and § 8455(a)(2) are identical.
RODRIGUEZ v. OPM 12
Applying this court’s reasoning from Crockett, the
Board has affirmed an OPM decision pro-rating an annui-
tant’s base salary to reflect his pre-retirement part-time
tour of duty. See Harvey v. Office of Pers. Mgmt., No. CH-
0831-07-0143-I-1, 2007 MSPB LEXIS 2358, *3 (Feb. 28,
2007) (applying Crockett and finding that, because “the
appellant occupied a part-time position, working 40 hours
per pay period at the time he retired . . . OPM did not err
in using his 40-hour-per-pay-period assignment to deter-
mine his rate of basic pay”).
Although neither party cites to it, and it is not binding
on this court, we recognize that, in a recent Board deci-
sion, an AJ found that OPM erred in pro-rating the an-
nuitant’s baseline salary due to her temporary part-time
schedule. Dillman v. Office of Pers. Mgmt., No. AT-0831-
10-0111-I-1, 2010 MSPB LEXIS 3499, *7-8 (Mar. 22,
2010). In Dillman, the annuitant, who was employed as a
registered nurse, sought and obtained a modified part-
time duty schedule during the final months of her em-
ployment due to her failing health. Id. at *1-2. OPM,
applying Crockett, pro-rated her annual salary based on
her reduced duty schedule, and found that she was re-
stored to earning capacity because her post-retirement
income exceeded her part-time pro-rated earnings. Id. at
*5-6. The AJ reversed, finding that “the statute and
regulation both indicate that OPM should look to the rate
of pay for the annuitant’s position – not her accommo-
dated duty schedule – to determine her current base pay.”
Id. at *5. In reaching this decision, the AJ distinguished
Crockett on grounds that the annuitant in that case
occupied a part-time position prior to retirement, while
the annuitant in Dillman occupied a full-time position
with a temporary part-time accommodated duty schedule.
See id. at *5-7. The AJ also noted that there is a strong
public interest in “encouraging injured and ill individuals
13 RODRIGUEZ v. OPM
to remain employed and productive as long as possible,”
and that “OPM’s practice of ratcheting down an em-
ployee’s baseline earning capacity figure due to the em-
ployee’s medically-reduced duty schedule contravenes this
policy by penalizing sick employees who try a part-time
duty schedule in a laudable effort to remain in the work-
force.” Id. at *7-8.
While the analysis in Dillman has some force, the cir-
cumstances here are materially different. Unlike in
Dillman, where the annuitant was merely on a temporary
part-time accommodated duty schedule for a few months
prior to retirement, here, it is undisputed that Rodriguez
occupied a part-time position for several years prior to
retirement. Indeed, in her Informal Brief, Rodriguez
concedes that “the position [she] occupied immediately
before retirement was part time.” Although Rodriguez
argues that the Board should have considered the reason
she switched from a full-time to a part-time position, she
fails to identify any facts in the record that support her
assertion that her job status was the result of a medical
accommodation. As the AJ noted in his initial decision,
moreover, if the DVA
improperly documented her status as part time
and now certifies an amended individual retire-
ment record to OPM, OPM might be required to
reconsider this matter. Moreover, it appears that
if the agency placed the appellant in a part-time
status as a reasonable accommodation for a dis-
abling condition and provided notice to OPM, a
higher rate of basic pay might have been estab-
lished. See 5 C.F.R. § 831.1209(b). In either
event, it seems the appellant would be required to
obtain further documentation from her former
employing agency.
RODRIGUEZ v. OPM 14
Initial Decision, 2010 MSPB LEXIS 32 at *9 n.3.
We find that, on the facts before it, the Board cor-
rectly looked to the current rate of pay for the “position
occupied immediately before retirement.” § 8455(a)(2).
As this court has previously found, § 8455 “does not
provide for any exceptions or waivers in its application.
Neither OPM nor the Board has authority to waive statu-
tory requirements or to estop the government from deny-
ing benefits as required by law.” Daniel v. Office of Pers.
Mgmt., 245 Fed. Appx. 969, 971 (Fed. Cir. 2007) (citing
Office of Pers. Mgmt. v. Richmond, 496 U.S. 414, 416
(1990)). Nothing in the language of this statute requires
the Board to investigate why the annuitant occupied the
position she did prior to retirement. Because it is undis-
puted that Rodriguez occupied a part-time position at the
time she retired, and there is no evidence in the record to
support the conclusion that her designation as part-time
was inappropriate, the Board did not err in pro-rating her
basic pay to reflect her part-time rate of pay before com-
paring it to her post-retirement income.
II.
With respect to the applicable law, Rodriguez does not
contend that the Board should have ignored § 8455(a) in
assessing whether she was restored to earning capacity.
Instead, she argues that the Board failed to consider the
Rehabilitation Act of 1973 in its application of the FERS
statute. Specifically, Rodriguez contends that the Reha-
bilitation Act should have applied because, “by calculating
80 percent of the current rate of pay using my part time
salary, rather than calculating 80 percent of the current
rate of pay for a full time position,” OPM “is penalizing
me for reducing my work hours in an attempt to stay at
work.”
15 RODRIGUEZ v. OPM
Rodriguez fails to explain how the Rehabilitation Act
is relevant to the question of whether she was restored to
earning capacity under FERS, however, and she has not
asserted a claim under that Act. The Rehabilitation Act
protects federal employees from discrimination based on
their disabilities. See 29 U.S.C. § 791 et seq. Rodriguez
has not identified any provision of the Rehabilitation Act
that either refers, or specifically applies, to FERS. See
Attmore v. Office of Pers. Mgmt., 163 Fed. Appx. 885, 887
(Fed. Cir. 2006) (in a case dealing with OPM’s adjustment
of retirement benefits, noting that, although the peti-
tioner argued that the Board should have applied the
Rehabilitation Act, he failed to explain its relevance to the
issue before the court). As the government correctly
notes, moreover, Rodriguez has not asserted a disability
discrimination claim under the Rehabilitation Act, and,
even if she had, it would be beyond the jurisdiction of this
court. See Dedrick v. Office of Pers. Mgmt., 573 F.3d 1278,
1280-81 (Fed. Cir. 2009) (“Section 7703 of Title 5 provides
for judicial review of decisions of the Board, vesting
jurisdiction in this court except in “[c]ases of discrimina-
tion subject to the provisions of section 7702.”).
While it is certainly true that employees should not be
penalized for reducing their work schedule in an effort to
continue working, the statutory language set forth in
§ 8455(a)(2) makes it clear that earning capacity is re-
stored if the annuitant’s income equals “at least 80 per-
cent of the current rate of pay of the position occupied
immediately before retirement.” § 8455(a)(2) (emphasis
added). Because this court is required to follow the statu-
tory and regulatory provisions that apply to disability
retirement benefits under FERS, we are unable to disturb
the Board’s decision.
RODRIGUEZ v. OPM 16
III.
Turning to the issue of overpayment, the Board found
that Rodriguez was not entitled to waiver of recovery,
particularly since she failed to present any evidence on
the issue to the AJ. We find no error in the Board’s
analysis.
To be entitled to waiver, an annuitant must show
that: (1) she is without fault in creating the overpayment;
and (2) recovery of the overpayment would be against
equity and good conscience. 5 U.S.C. § 8470(b). 3 Even if
an annuitant is not eligible for waiver, he or she is “never-
theless entitled to an adjustment in the recovery schedule
if he or she shows that it would cause him or her financial
hardship to make payment at the rate scheduled.” 5
C.F.R. § 845.301. Financial hardship may exist where an
individual “needs substantially all of his or her current
income and liquid assets to meet current ordinary and
necessary living expenses and liabilities.” 5 C.F.R.
§ 845.304.
The AJ found that collection of the overpayment was
not unconscionable because Rodriguez “failed to provide
substantial evidence she was without fault or that recov-
ery would be against equity and good conscience.” Initial
Decision, 2010 MSPB LEXIS 32 at *12. The AJ further
found that Rodriguez failed to request a change in the
repayment schedule due to financial hardship.
3 In the Initial Decision, the AJ incorrectly cites to
5 U.S.C. § 8346(b), which applies to civil service retire-
ment annuities under CSRS. Because this case involves a
disability retirement annuity under FERS, the AJ should
have cited to 5 U.S.C. § 8470(b), which applies in FERS
cases. Because the standards are the same under both
retirement systems, the court finds no prejudicial error.
17 RODRIGUEZ v. OPM
In her Informal Reply Brief, Rodriguez explains that
she did not submit a FRQ because she thought it was
unnecessary. According to Rodriguez, since she had
requested reconsideration of the Board’s decision, she did
not think she needed to request waiver. As previously
indicated, however, OPM sent Rodriguez information
detailing her right to request waiver of the overpayment
and a form entitled “Request for Reconsideration, Waiver,
Compromise, Deferral or Repayment Agreement.” The
form instructed Rodriguez to “check all that apply and
provide all information requested.” The form listed
several options, including: (1) “I am not able to repay the
debt. My completed Financial Resources Questionnaire is
enclosed”; (2) “I would like to request that the debt be
waived. My completed [FRQ] is enclosed”; (3) “I would
like to defer payment of this debt until I become eligible
for a benefit administered by the” OPM; and (4) “I request
reconsideration.” It is undisputed that Rodriguez, who
was represented by counsel at the time, checked only the
box requesting reconsideration. She neither submitted a
FRQ nor provided any other evidence regarding her
financial ability to make repayments. Accordingly, there
was no basis for the Board to conclude she was entitled to
waiver. Nor was there any evidence from which the
Board could assess whether she was entitled to an ad-
justment in the repayment schedule.
Because Rodriguez failed to present any evidence on
the issue of financial hardship, we cannot say that the
Board erred in affirming OPM’s overpayment decision.
As the Board noted in its final decision, if Rodriguez
“experience[s] any changes in her financial circumstances
that affect her ability to meet OPM’s repayment schedule,
she may make a request to OPM to adjust her payments
at that time.” Final Decision, 2010 MSPB LEXIS 5709 at
*4.
RODRIGUEZ v. OPM 18
CONCLUSION
For the foregoing reasons, the final decision of the
Board is affirmed.
AFFIRMED
COSTS
No costs.