Opinion

Carmen Gonzalez v. Office of Personnel Management

Court: Merit Systems Protection Board
Filed: Jun 25, 2024
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 27.5%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

CARMEN M. GONZALEZ, DOCKET NUMBER

Appellant, DA-0845-19-0248-I-1

OFFICE OF PERSONNEL DATE: June 25, 2024

MANAGEMENT,

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Carmen M. Gonzalez , El Paso, Texas, pro se.

Karla W. Yeakle , Washington, D.C., for the agency.

BEFORE

Cathy A. Harris, Chairman

Raymond A. Limon, Vice Chairman

Henry J. Kerner, Member*

*Member Kerner did not participate in the adjudication of this appeal.

FINAL ORDER

The appellant has filed a petition for review of the initial decision, which

affirmed in part and modified in part a reconsideration decision issued by the

Office of Personnel Management (OPM) regarding an overpayment of Federal

Employees’ Retirement System (FERS) disability benefits made to the appellant.

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).

Specifically, the administrative judge affirmed OPM’s determination that the

appellant received an overpayment of FERS disability benefits in the amount of

$56,089, and that she is not entitled to a waiver of the overpayment. However,

the administrative judge modified the appellant’s repayment amount to $5 per

month due to her financial hardship. 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 and AFFIRM the initial

decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).

BACKGROUND

The factual findings made by the administrative judge in the initial decision

remain generally undisputed on review. Initial Appeal File (IAF), Tab 16, Initial

Decision (ID) at 2-4; Petition for Review (PFR) File, Tabs 1, 4. In a letter dated

August 2, 2012, OPM approved the appellant’s application for disability

retirement under FERS, which became effective on August 10, 2012. IAF,

Tab 10 at 104, 112-15. In the decision letter that OPM sent to the appellant, she

was told, inter alia, that she must apply for Social Security Disability Insurance

(SSDI) benefits and notify OPM of the specifics if she was awarded SSDI

benefits. Id. at 112-13. OPM further outlined to the appellant the requirement

that for annuitants, any monthly FERS disability benefit must be reduced by the

amount of any monthly SSDI benefit, 2 and to not negotiate any awarded SSDI

benefit check or payment until her FERS benefit has been properly reduced. Id.

at 113; see 5 U.S.C. § 8452(a)(2) (explaining the requirement for FERS disability

benefits to be reduced by the amount of SSDI benefits). In or around November

2015, the appellant’s application for SSDI benefits was approved, and she was

awarded SSDI benefits retroactive to December 1, 2011. IAF, Tab 5 at 24-25,

Tab 9 at 19, Tab 10 at 6. There is no evidence in the record that the appellant

contacted OPM to advise of her SSDI benefit award. See IAF, Tab 13 at 8-9 (call

logs from OPM showing that the appellant did not call to inquire about her

benefits from August 2015 through April 2018); ID at 6 n.4.

In December 2016, OPM notified the appellant of the overpayment of her

FERS disability benefits after factoring in the amount of SSDI benefits that she

received during the covered period. IAF, Tab 10 at 49-50. In total, from the

December 1, 2011 effective date of her SSDI disability benefits through

December 2016, the appellant received an overpayment of $56,089 in FERS

disability benefits. Id.; see ID at 3 n.1 (explaining that even though the

appellant’s SSDI benefits were retroactive to December 1, 2011, her FERS

disability benefit payments did not begin until August 2012, and OPM accurately

calculated the overpayment for the correct period). To recoup the overpayment,

OPM set a repayment schedule of 140 monthly installments in the amount of

$398.78 and 1 monthly installment of $259.80, to be deducted from the

appellant’s monthly FERS disability benefit payment. IAF, Tab 10 at 49-50. On

January 10, 2017, the appellant filed a request for reconsideration with OPM,

seeking to have the overpayment amount waived. IAF, Tab 5 at 22-23.

OPM issued its reconsideration decision on March 26, 2019, affirming its

determination of the existence and amount of the overpayment and finding that

The amount of reduction varies—for example, in the first 12 months of collection of

FERS disability benefits, payments are reduced by 100% of the SSDI monthly amount,

followed by a reduction of 60% of the SSDI monthly amount. 5 U.S.C. § 8452(a)(2).

the appellant was not entitled to a waiver of the overpayment. Id. at 7-11. After

taking the appellant’s Financial Resources Questionnaire (FRQ) and

accompanying documentation into account, OPM lowered her repayment amount

to 224 monthly installments of $250 and 1 monthly installment of $89. Id. at 10.

The appellant then filed this instant Board appeal contesting OPM’s

reconsideration decision. IAF, Tab 1.

During the adjudication of this Board appeal, the appellant submitted an

updated FRQ. IAF, Tab 13 at 4-6. After the appellant withdrew her hearing

request, the administrative judge issued an initial decision on the written record,

affirming in part and modifying in part OPM’s reconsideration decision. IAF,

Tab 11 at 2; ID at 1-11. Specifically, the administrative judge affirmed OPM’s

determination that after factoring in the amount of SSDI benefits that the

appellant was awarded, she received an overpayment of FERS disability benefits

in the amount of $56,089. ID at 3-5. While the appellant was not entitled to a

waiver of the overpayment, the administrative judge modified her repayment

amount to $5 per month due to her financial hardship, as her monthly expenses

exceeded her income by $56.46. 3 ID at 5-11.

The appellant filed a petition for review, contesting only the administrative

judge’s findings related to her FRQ, which he used as a basis to find a financial

hardship and to calculate the modified repayment amount of $5 per month. 4 ID

at 7-11; PFR File, Tab 1 at 3. OPM filed a response to the appellant’s petition for

review, in which it seeks affirmance of the initial decision. PFR File, Tab 4

at 4-5. OPM does not dispute the modified repayment amount on review. Id.

The appellant’s monthly income is $3,132 and her monthly expenses are $3,188.46.

IAF, Tab 13 at 4; ID at 9.

At no juncture during the adjudication of this appeal before the administrative judge,

or on review, has the appellant disputed the existence and amount of the overpayment.

ID at 4; PFR File, Tab 1.

ANALYSIS

OPM bears the burden of proving, by preponderant evidence, the existence

and amount of an overpayment of benefits. Sansom v. Office of Personnel

Management, 62 M.S.P.R. 560, 563 (1994); 5 C.F.R. § 845.307(a). If OPM meets

this burden, the appellant must establish by substantial evidence that she is

entitled to a waiver or adjustment of the overpayment. Stewart v. Office of

Personnel Management, 102 M.S.P.R. 272, ¶ 5 (2006); 5 C.F.R. § 845.307(b).

We agree with the administrative judge’s findings in the initial decision

that the agency proved by preponderant evidence the existence of an overpayment

of FERS disability benefits to the appellant in the amount of $56,089. ID at 3-5.

This overpayment occurred because the appellant received monthly FERS

disability benefit payments from August 2012 through December 2016 without an

adjustment for the amount of SSDI benefits she was awarded for this same time

period. IAF, Tab 10 at 49-50; ID at 2-5; see 5 U.S.C. § 8452(a)(2). As the

administrative judge also determined, while the appellant failed to show by

substantial evidence that she is entitled to a waiver of this overpayment, the

evidentiary record, to include the appellant’s updated FRQ, demonstrated a

financial hardship warranting a lower repayment amount, as the appellant’s

monthly expenses exceed her monthly income. IAF, Tab 13 at 4-6; ID at 5-11;

see 5 C.F.R. § 845.301 (outlining that an individual is entitled to an adjustment in

the recovery schedule for an overpayment from OPM when she shows a financial

hardship).

While in her petition for review the appellant takes issue with the manner

in which the administrative judge assessed her FRQ, our review of the record

demonstrates that the administrative judge accepted, without any reduction, the

full amount of average monthly expenses that the appellant listed on her updated

FRQ, and even added an additional $50 in emergency expenses in his calculation.

Ewing v. Office of Personnel Management, 100 M.S.P.R. 224, ¶ 7 (2005); IAF,

Tab 13 at 4-6; ID at 8-10; PFR File, Tab 1 at 3. The modified repayment amount

of $5 per month as set by the administrative judge, which is not contested by

OPM on review, falls in line with Board decisions in similar circumstances when

annuitants had to repay OPM to cover an overpayment of benefits. PFR File,

Tab 4 at 4-5; see, e.g., Dorrello v. Office of Personnel Management , 91 M.S.P.R.

535, ¶¶ 9-10 (2002) (reducing the appellant’s repayment to OPM to $5 per month

due to his negative monthly income/expense margin); Matthews v. Office of

Personnel Management, 85 M.S.P.R. 531, ¶ 11 (2000) (same). As a result, we

find no reason to disturb the well-reasoned and substantiated initial decision.

ORDER

We ORDER OPM to reduce the appellant’s repayment schedule to a rate of

$5.00 per month. OPM must complete this action no later than 20 days after the

date of this decision.

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).

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).

NOTICE OF APPEAL RIGHTS 5

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

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:

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.

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. 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

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. 6 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