Mary D. Vance v. Office of Personnel Management ( 2016 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
MARY D. VANCE, DOCKET NUMBER
Appellant, CH-0845-15-0425-I-1
v.
OFFICE OF PERSONNEL DATE: February 5, 2016
MANAGEMENT,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Mary D. Vance, South Point, Ohio, pro se.
Patrick Jennings, Washington, D.C., for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Mark A. Robbins, 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) that denied her request for waiver of an overpayment of annuity benefits.
Generally, we grant petitions such as this one only when: the initial decision
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
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. Except as
expressly MODIFIED by our finding that the adjustment of the repayment
schedule affirms and does not modify the reconsideration decision, we AFFIRM
the initial decision.
BACKGROUND
¶2 In January 2009, the appellant retired pursuant to a disability retirement
under the Federal Employees Retirement System (FERS). Initial Appeal File
(IAF), Tab 6 at 13, 52. In its January 2009 disability retirement approval letter,
OPM informed the appellant that she was required to apply for Social Security
Administration (SSA) disability benefits and that she must immediately inform
OPM of the amount and effective date of such benefits. Id. at 13. OPM also
informed the appellant that the SSA disability checks would be needed to pay
OPM for the reduction that should have been made in her FERS annuity and that
they should not be negotiated until the FERS benefit has been reduced. Id. at 14.
¶3 The appellant was awarded SSA disability benefits effective July 2009. Id.
at 36. In September 2012, OPM informed the appellant that: (1) it received
information that she had received SSA disability benefits effective in July 2009;
(2) as a result, she had received an overpayment of $14,257.00 in disability
3
retirement benefits for the period from July 2009 to May 2012; and (3) OPM
would collect the overpayment in 51 monthly installments of $276.60 and a final
installment of $150.40. IAF, Tab 6 at 19-20. In response, in October 2012, the
appellant requested reconsideration of the existence and amount of the
overpayment, waiver of the overpayment, or lower installments. Id. at 25, 31. In
May 2015, OPM issued an amended reconsideration decision that affirmed its
initial decision, but found that the appellant was entitled to an adjustment of the
collection schedule to 190 monthly installments of $75.00 and one installment of
$7.00. 2 Id. at 7-9.
¶4 The appellant challenged the reconsideration decision before the Board.
IAF, Tab 1. She appeared to assert that she had informed OPM of her SSA
disability award by telephone and facsimile, but that OPM failed to reduce her
annuity at that point. Id. She did not request a hearing. Id. The administrative
judge issued an initial decision based upon the written record denying the
appellant’s request for waiver, but finding that OPM must adjust its collection
schedule to $75.00 per month for 190 months, with one final payment of $7.00.
IAF, Tab 28, Initial Decision (ID). 3 The appellant has filed a timely petition for
review in which she challenges the administrative judge’s finding that she was
aware that she had to set aside the SSA disability benefits and states that the
administrative judge incorrectly concluded that she did not notify OPM of her
2
OPM previously issued a reconsideration decision in April 2015 that did not adjust the
monthly payment. IAF, Tab 6 at 10-12.
3
The administrative judge found that OPM had offered a modified collection schedule
in response to the appeal and stated that, after reviewing the record, she found the
schedule to be reasonable. ID at 5-7; see IAF, Tab 19. In fact, OPM offered this
adjustment of the collection schedule in its amended reconsideration decision. IAF,
Tab 6 at 9. Therefore, we modify the initial decision to the extent that the
administrative judge stated she was modifying the reconsideration decision concerning
the repayment schedule and instead find that the administrative judge affirmed the
reconsideration decision in this respect.
4
receipt of SSA disability benefits. 4 Petition for Review (PFR) File, Tab 1. OPM
has filed a response in opposition to the appellant’s petition for review, PFR File,
Tab 4, and the appellant has filed a reply to OPM’s response, PFR File, Tab 5.
DISCUSSION OF ARGUMENTS ON REVIEW
¶5 OPM bears the burden of proving the existence and amount of an
overpayment by preponderant evidence. 5 Vojas v. Office of Personnel
Management, 115 M.S.P.R. 502, ¶ 10 (2011); see 5 C.F.R. § 845.307(a). If the
appellant claims that she is entitled to a waiver of the overpayment, she has the
burden of proving, by substantial evidence, that she is entitled to a waiver. 6
Vojas, 115 M.S.P.R. 502, ¶ 18; see 5 C.F.R. § 845.307(b). Generally, the
recovery of a FERS overpayment should be waived if the recipient is without
fault and recovery would be against equity and good conscience. Boone v. Office
of Personnel Management, 119 M.S.P.R. 53, ¶ 5 (2012); see 5 U.S.C. § 8470(b);
see also 5 C.F.R. § 845.301. Recovery is against equity and good conscience
when it would cause financial hardship, the annuitant can show that she
relinquished a valuable right or changed positions for the worse, or recovery
would be unconscionable under the circumstances. Boone, 119 M.S.P.R. 53, ¶ 5.
4
On review, the appellant appears to express her uncertainty about what is required to
demonstrate financial hardship. PFR File, Tab 1. It is unclear whether the appellant’s
statement is an attempt to challenge the repayment schedule. However, we see no
reason to disturb the administrative judge’s finding regarding the repayment schedule
and note that, should her financial situation change in the future, the appellant is free to
renew her request for a reduced repayment schedule. See Fearon v. Office of Personnel
Management, 109 M.S.P.R. 606, ¶ 9 n.2 (2008).
5
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).
6
Substantial evidence is defined as 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).
This is a lower standard of proof than preponderance of the evidence. Id.
5
¶6 OPM policy provides, however, that individuals who know or suspect that
they are receiving overpayments are expected to set aside the amount overpaid
pending recoupment and that, in the absence of exceptional circumstances,
recovery in these cases is not against equity and good conscience. OPM’s Policy
Guidelines on the Disposition of Overpayments under the Civil Service
Retirement System and FERS § 1.C.4 (hereinafter Policy Guidelines, located at
IAF, Tab 6 at 55-93); see Slater v. Office of Personnel Management, 42 M.S.P.R.
510, 516-17 (1989) (finding the set-aside rule “reasonable and appropriate”).
Pursuant to Board precedent and the Policy Guidelines, exceptional circumstances
involve extremely egregious errors or delays by OPM. See, e.g., Dorrello v.
Office of Personnel Management, 91 M.S.P.R. 535, ¶ 7 (2002); see also Policy
Guidelines § I.C.4. The set-aside rule goes to the question of whether recovery
would be against equity and good conscience. See Knox v. Office of Personnel
Management, 107 M.S.P.R. 353, ¶ 8 (2007).
¶7 Assuming, without deciding, that the appellant was without fault in the
overpayment, we find that the appellant has failed to establish that she is entitled
to a waiver because she should have set aside the overpayments in order to repay
the debt. OPM notified the appellant in January 2009 that if SSA awarded her
disability benefits, she would be receiving an overpayment and should set aside
her SSA disability benefits to reimburse OPM for the overpayment. IAF, Tab 6
at 13-14. We find that this notification by OPM provided the appellant with
sufficient notice of the set-aside rule and that she should have set aside the SSA
checks. See Gulan v. Office of Personnel Management, 86 M.S.P.R. 16, ¶¶ 2,
9 (2000).
¶8 The appellant argues that the administrative judge improperly concluded
that she did not notify OPM of her award of SSA disability benefits. PFR File,
Tab 1. To the contrary, the administrative judge noted the appellant’s contention
that she received notice of her SSA disability benefits on or around July 27, 2010,
and faxed notice of her benefits to OPM on July 30, 2010. ID at 4; see IAF,
6
Tab 15. She found that the appellant was without fault in creating the
overpayment, but also found that the set-aside rule was applicable, regardless of
whether the appellant was without fault in creating the overpayment. ID at 4.
We discern no basis for disturbing these well-reasoned findings on review. See
Knox, 107 M.S.P.R. 353, ¶¶ 7-9 (holding that the appellant was without fault in
creating the overpayment but that she still was not entitled to a waiver because
she should have set aside the overpayments).
¶9 Under the particular circumstances in this case, we find that recovery of
the overpayment would not be against equity and good conscience. See Knox,
107 M.S.P.R. 353, ¶¶ 8-9. We therefore affirm the initial decision affirming
OPM’s reconsideration decision that denied the appellant’s request for waiver of
an overpayment of annuity benefits.
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
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 have the right to
request review of this final decision by the U.S. Court of Appeals for the Federal
Circuit. You must submit your request to the court at the following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, DC 20439
The court must receive your request for review no later than 60 calendar days
after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec. 27,
2012). If you choose to file, be very careful to file on time. The court has held
that normally it does not have the authority to waive this statutory deadline and
that filings that do not comply with the deadline must be dismissed. See Pinat v.
Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).
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If you need further information about your right to appeal this decision to
court, you should refer to the Federal law that gives you this right. It is found in
title 5 of the U.S. Code, section 7703 (5 U.S.C. § 7703) (as rev. eff. Dec. 27,
2012). You may read this law as well as other sections of the U.S. Code, at our
website, http://www.mspb.gov/appeals/uscode.htm. Additional information 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, 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
Merit Systems Protection Board neither endorses the services provided by any
attorney nor warrants that any attorney will accept representation in a given case.
FOR THE BOARD: ______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.