The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
CONNIE J. LATHAM, DOCKET NUMBER
Appellant, SF-0845-14-0559-C-1
v.
OFFICE OF PERSONNEL DATE: February 26, 2015
MANAGEMENT,
Agency.
THIS FINAL ORDER IS NO NPRECEDENTIAL ∗
Connie J. Latham, Placerville, California, pro se.
Michael Shipley, Washington, D.C., for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Anne M. Wagner, Vice Chairman
Mark A. Robbins, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the compliance initial
decision, which found the Office of Personnel Management (OPM) in compliance
with the initial decision in this matter. Generally, we grant petitions such as this
one only when: the initial decision contains erroneous findings of material fact;
∗
A nonprecedential order is one that the Board has determined does not add
sign ificantly 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 Parties may cite nonprecedential orders,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).
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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 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, and based on the following points and authorities, 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).
¶2 The appellant filed a timely appeal of OPM’s reconsideration decision in
which it found that, because she was restored to earning capacity, the appellant
was no longer entitled to her Federal Employees’ Retirement System disability
annuity after June 30, 2011, and that, as a result, it had overpaid her $47,049.12.
Latham v. Office of Personnel Management, MSPB Docket No. SF-0845-14-
0559-I-1, Initial Appeal File (IAF), Tab 1. Specifically, OPM had notified the
appellant that her earnings of $58,147 for 2010 and $65,828 for 2011 were in
excess of the applicable income limitation of $53,579 for those years, i.e., 80
percent of the $66,974 base salary of the GS-11, Step 6 Park Ranger position
from which the appellant retired. IAF, Tab 4 at 5-8; see 5 C.F.R. § 844.402.
¶3 After holding a telephonic hearing, the administrative judge found that
OPM established the existence and amount of the overpayment. IAF, Tab 9,
Initial Decision (ID). Nevertheless, because the appellant was not at fault in
creating the overpayment, and the record indicated that recovery of the
overpayment would be against equity and good conscience, the administrative
judge reversed OPM’s reconsideration decision and found that the appellant was
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entitled to a waiver of the overpayment under 5 U.S.C. § 8470(b). ID at 5. When
neither party petitioned for review, the initial decision became the Board’s final
decision on August 21, 2014. ID at 6; see 5 C.F.R. § 1201.113.
¶4 The appellant subsequently filed this petition for enforcement in which she
argued that, because she was found without fault in creating the overpayment at
issue, her annuity should have been reinstated and she should receive back
annuity payments. Compliance File (CF), Tab 1. The agency responded in
opposition. CF, Tab 3. The administrative judge found the agency in compliance
with the initial decision. CF, Tab 4, Compliance Initial Decision (CID). The
appellant has filed a petition for review of the compliance initial decision in
which she again requests that her annuity be reinstated. Petition for Review
(PFR) File, Tab 1. The agency has responded in opposition, and the appellant has
filed a reply to the agency’s response. PFR File, Tabs 3-4.
¶5 We agree with the administrative judge that the initial decision in this
matter did not find that OPM erroneously terminated the appellant’s disability
annuity. CID at 2. The record confirms the administrative judge’s observation
that the appellant failed to contest OPM’s findings regarding the amount she had
earned in 2010-11, and we also agree that there was no evidence in the record to
indicate that either the amount of those annual earnings or OPM’s determination
that the appellant had been restored to earning capacity based on the amount of
those earnings were incorrect. CID at 3; cf. Starr v. Office of Personnel
Management, 81 M.S.P.R. 633, ¶¶ 2, 4 (1999) (interpreting largely identical
provisions applicable to the Civil Service Retirement System). Moreover, it is
clear from the administrative judge’s finding that the appellant was no longer
entitled to her annuity and that OPM properly terminated it. See ID at 2-3.
Otherwise, the administrative judge would have determined that OPM had failed
to establish the existence of the overpayment. Nevertheless, as the administrative
judge commented in the compliance initial decision, OPM provided the appellant
with the information necessary for her to apply for reinstatement of her annuity in
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the event her earnings fall below the 80 percent threshold noted above. CID at 3;
CF, Tab 3 at 6-7; IAF, Tab 4 at 24-25. As a result, we deny the appellant’s
petition for review of the compliance initial decision.
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
You have the right to request review of this final decision by the United
States Court of Appeals for the Federal Circuit. You must submit your request to
the court at the following address:
United States 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).
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 United States 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 United
States 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 your court
appeal, you may visit our website at http://www.mspb.gov/probono for a list of
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attorneys who have expressed interest in providing pro bono representation for
Merit Systems Protection Board appellants before the court. 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.