M. Carmen Luna v. Office of Personnel Management

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

M. CARMEN LUNA, DOCKET NUMBER

Appellant, DA-831M-14-0569-C-1

v.

OFFICE OF PERSONNEL DATE: June 30, 2015

MANAGEMENT,

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Anthony Rogers, San Antonio, Texas, for the appellant.

Lesley Gordon, 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 compliance initial

decision, which denied her petition for enforcement. Generally, we grant

petitions such as this one only when: the initial decision contains erroneous

findings of material fact; the initial decision is based on an erroneous

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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

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 administrative judge issued an initial decision on October 1, 2014,

reversing the Office of Personnel Management’s (OPM’s) reconsideration

decision finding that the appellant had received an annuity overpayment. See

Luna v. Office of Personnel Management, MSPB Docket No. DA-831M-14-0569-

I-1, Initial Appeal File (IAF), Tab 14, Initial Decision (ID) at 1. The

administrative judge found that OPM failed to submit any evidence to support its

finding that the appellant received an overpayment of her annuity and ordered

OPM to waive collection of the overpayment amount of $301,327.63. ID at 2-3.

The administrative judge also ordered OPM to pay the appellant the amount of

money (if any) that it had already deducted from her annuity based on the alleged

overpayment. 2 ID at 3.

¶3 The appellant filed a petition for enforcement on December 3, 2014,

arguing that OPM failed to inform her in writing of the actions taken to comply

with the Board’s final order. See Luna v. Office of Personnel Management,

MSPB Docket No. DA-831M-14-0569-C-1, Compliance File (CF), Tab 1 at 3.

2

Neither party filed a petition for review of the initial decision; therefore, it became

final on November 4, 2014.

3

The appellant further stated that OPM failed to restore her annuity and her health

insurance, which left her unable to pay for urgent medical care. Id. at 2-3.

¶4 OPM responded to the appellant’s petition by stating that it had fully

complied with the Board’s order by waiving the overpayment of $301,327.63 and

terminating all collection actions. CF, Tab 10 at 4. OPM also stated that “[t]here

were no previously withheld deductions based on the overpayment,” and that

OPM’s deductions for the Federal Employee Health Benefits Plan (FEHBP)

premiums and income taxes are not related to the alleged overpayment recovery

and are not reviewable by the Board. Id.; CF, Tab 14 at 5-7. In addition, OPM

submitted a November 5, 2014 letter notifying the appellant that it had complied

with the Board’s order. CF, Tab 10 at 6. In that letter, OPM further stated that it

would issue a final decision concerning the appellant’s entitlement to an annuity

and health coverage. Id.

¶5 The appellant argued in response that OPM notified her that it was

withholding her annuity and terminating her health benefits. CF, Tab 11 at 4-5.

She also submitted several documents including, inter alia, a May 29, 2014 letter

from OPM denying her request to reinstate her annuity and FEHBP eligibility and

a July 15, 2014 reconsideration decision from OPM affirming its initial

determination that the appellant was overpaid $301,327.63 in annuity benefits.

CF, Tab 12 at 5, 13.

¶6 The administrative judge issued a memorandum determining that the only

issue in dispute was whether OPM complied with the Board’s October 1, 2014

initial decision ordering OPM to waive the collection of $301,327.63 and to pay

the appellant money (if any) that OPM had already deducted from her annuity

based on the alleged overpayment. CF, Tab 16 at 1-2. The administrative judge

also stated that, based on her review of the parties’ submissions, OPM showed

that it had complied with the Board’s order in the October 1, 2014 initial

decision. Id. at 2. The administrative judge further found that the record in this

petition for enforcement did not include an OPM reconsideration decision

4

terminating the appellant’s annuity and health benefits and that those matters

were not the subject of her petition for enforcement. Id.; CF, Tab 17, Compliance

Initial Decision (CID) at 3, n.2. Although the administrative judge directed the

parties to file any objections or motions to supplement her memorandum in

writing before February 13, 2015, neither party responded. CF, Tab 16 at 2.

¶7 The administrative judge subsequently denied the appellant’s petition for

enforcement, finding that OPM proved by preponderant evidence that it had

complied with the Board’s final order. CID at 3-4. The administrative judge also

noted in the compliance initial decision that the appellant did not dispute OPM’s

assertion that it did not make any prior deductions from her annuity based on the

alleged overpayment or challenge OPM’s statement that it waived the alleged

overpayment and terminated collection efforts. CID at 3. The appellant has filed

a timely petition for review arguing that the administrative judge failed to

recognize that OPM’s initial decision concerning her annuity and health benefits

was a final appealable decision because OPM failed to act on those matters.

Compliance Petition for Review (CPFR) File, Tab 1 at 6-7. OPM has filed a

response in opposition to the appellant’s petition for review. CPFR File, Tab 3.

¶8 The appellant’s arguments on review present no reason to disturb the initial

decision denying her petition for enforcement. On review, the appellant does not

dispute that OPM proved by preponderant evidence that it complied with the

Board’s order concerning the alleged overpayment. Moreover, as the

administrative judge noted in her compliance initial decision, the appellant filed a

separate appeal challenging OPM’s November 12, 2014 reconsideration decision

affirming its May 29, 2014 initial decision finding that the appellant was not

entitled to reinstatement of her annuity or health benefits coverage. CID at 3 n.2;

see Luna v. Office of Personnel Management, MSPB Docket No. DA-0831-15-

5

0253-I-1 (0253), IAF, Tab 1 at 4, 7-11. 3 We therefore find that the appellant’s

claims regarding her annuity and her health benefits are not properly before the

Board in this proceeding. 4 We therefore deny the appellant’s petition for review.

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

3

Although the administrative judge dismissed the 0253 appeal without prejudice on

May 15, 2015, she further ordered that the appeal would be refiled automatically within

30 days after the Board issues its decision on the appellant’s petition for review in this

enforcement action. Luna v. Office of Personnel Management, MSPB Docket No.

DA-0831-15-0253-I-1, Initial Decision (May 15, 2015).

4

OPM decisions concerning federal health insurance benefits and its administration of

the FEHBP are final and are not reviewable by the Board. Lee v. Office of Personnel

Management, 32 M.S.P.R. 149, 152 (1987); see Richardson v. Office of Personnel

Management, 347 F. App’x 574, 577 (Fed. Cir. 2009) (“Jurisdiction over FEHBP claims

rests with the United States district courts and the Court of Federal Claims, not with the

Board. 5 U.S.C. § 8912.”).

6

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 appeal to

the 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.