The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
2016 MSPB 11
Docket No. CH-0845-15-0605-I-1
Angela Campbell,
Appellant,
v.
Office of Personnel Management,
Agency.
February 25, 2016
Kory D. Stubblefield, Esquire, Springfield, Missouri, for the appellant.
Cynthia Reinhold, Washington, D.C., for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Mark A. Robbins, Member
OPINION AND ORDER
¶1 The appellant has filed a petition for review of the initial decision that
dismissed her Federal Employees’ Retirement System (FERS) overpayment
appeal for lack of jurisdiction. For the reasons set forth below, we GRANT the
petition for review, VACATE the initial decision, and REMAND the appeal for
further adjudication.
BACKGROUND
¶2 The appellant is a FERS survivor annuitant. Initial Appeal File (IAF),
Tab 1 at 1, 16. On April 9, 2013, the Office of Personnel Management (OPM)
issued an initial decision informing her that it had overpaid her late husband’s
2
basic annuity by $13,361.90 because it neglected to reduce his annuity to account
for the survivor benefit election. Petition for Review (PFR) File, Tab 1 at 10-11.
OPM stated that it had collected some monies from the annuity payable to the
appellant’s late husband in the month of his death, leaving a balance of
$12,239.60, which it would collect by withholding in installments from the
appellant’s survivor annuity. Id. The appellant requested reconsideration, and on
July 14, 2015, OPM issued a final decision adjusting the collection schedule but
declining to waive the overpayment or otherwise modify the overpayment
amount. IAF, Tab 1 at 16-19.
¶3 The appellant filed a Board appeal, challenging OPM’s decision. Id.
at 7, 9. During the pendency of the appeal, OPM informed the administrative
judge that it had rescinded its decision, and it requested that the appeal be
dismissed. IAF, Tab 6. The administrative judge issued an order, directing the
appellant to show cause why her appeal should not be dismissed for lack of
jurisdiction in light of OPM’s rescission. IAF, Tab 7. After the appellant
responded, IAF, Tab 8, the administrative judge issued an initial decision finding
that OPM completely rescinded its final decision and dismissing the appeal for
lack of jurisdiction, IAF, Tab 9, Initial Decision.
¶4 The appellant has filed a petition for review, arguing that OPM’s rescission
is incomplete because OPM has not refunded the money that it collected from her
late husband’s basic annuity and that, within 1 week of issuance of the initial
decision, OPM began withholding amounts from her survivor annuity to collect
the overpayment. 1 PFR File, Tab 1 at 6-8. OPM has filed a response, arguing
that it refunded the money that it withheld from the appellant’s survivor annuity
1
We have considered all of the evidence and argument that the parties filed for the first
time on review because the appellant was not apprised of the dispositive jurisdictional
issue until the initial decision was issued. See Nevins v. U.S. Postal Service,
107 M.S.P.R. 595, ¶ 17 (2008).
3
payments and that it was authorized by statute to make withholdings from the
appellant’s late husband’s basic annuity pending due process. PFR File, Tab 4.
ANALYSIS
¶5 One way for OPM to recover a debt to the Civil Service Retirement and
Disability Fund is by an administrative offset against a FERS annuity payment.
5 C.F.R. §§ 845.205(a), .206(a). OPM has the authority to withhold money from
a survivor annuity to recover an overpayment of the deceased spouse’s basic
annuity. Simpson v. Office of Personnel Management, 96 M.S.P.R. 52, ¶¶ 7-15,
21 (2004). Normally, OPM will not commence collection until the administrative
review process of 5 C.F.R. § 845.204 has been completed, i.e., until OPM has
issued a final decision and the Board has acted on any appeal of that decision.
5 C.F.R. § 845.205(d)(1). However, 5 C.F.R. § 845.205(d)(1) provides that OPM
may commence collection before the administrative review process has been
completed if “failure to make an offset would substantially prejudice the
Government’s ability to collect the debt[] and the time before the payment is to
be made does not reasonably permit completion of the proceedings in § 845.204
or litigation.” 2
¶6 In this case, OPM collected the amount at issue, $1,122.30, pursuant to
these exigent collection provisions. PFR File, Tab 4 at 4-5. The fact that OPM
was authorized to commence collection before issuing a final decision does not
2
Section 845.205(d)(1) also provides that, if offset begins without the completion of
OPM’s administrative review process, that process will be completed “promptly.”
Unfortunately, it took OPM more than 2 years to issue its final decision in this case,
and it now represents to the Board that its administrative review process still is not
complete. See PFR File, Tab 4 at 4; IAF, Tab 1 at 16. Regardless, because we are
remanding for a determination of whether the Board has jurisdiction over this appeal,
we find it unnecessary at this time to examine whether OPM’s administrative review
process was “prompt.”
4
mean that once the final decision was issued, OPM could rescind it without
refunding the collection and thereby divest the Board of jurisdiction. 3
¶7 If OPM completely rescinds its final decision, the Board no longer has
jurisdiction over the appeal in which that decision is at issue. Martin v. Office of
Personnel Management, 119 M.S.P.R. 188, ¶ 8 (2013). A complete rescission
requires OPM to return the appellant to the status quo ante. See id., ¶ 10. Status
quo ante means placing the injured party, as near as possible, in the position she
would have held had “the wrong not been committed.” Kerr v. National
Endowment for the Arts, 726 F.2d 730, 733 n.3 (Fed. Cir. 1984) (quoting
Wicker v. Hoppock, 73 U.S. 94, 99 (1867)).
¶8 Thus, to rescind a final overpayment decision, OPM must, among other
things, refund any money that it already collected from the appellant to recoup
the alleged overpayment. See Martin, 119 M.S.P.R. 188, ¶¶ 2-5, 7, 10 (finding
that rescission of an OPM overpayment reconsideration decision was incomplete
where, in pertinent part, the Office of Workers’ Compensation Programs (OWCP)
had not repaid funds it had withheld from the appellant’s workers’ compensation
benefits at OPM’s direction); Butler v. Office of Personnel Management,
46 M.S.P.R. 288, 292-93 (1990) (remanding to provide the appellant with the
opportunity prove Board jurisdiction where he alleged, in pertinent part, that
OWCP had not repaid funds withheld from his workers’ compensation benefits at
OPM’s direction); see also Alexis v. Office of Personnel Management,
106 M.S.P.R. 315, ¶¶ 5, 7 (2007) (dismissing as moot an appeal where OPM, in
pertinent part, rescinded its overpayment reconsideration decision, including
refunding withheld funds).
¶9 In this case, it is undisputed that OPM has not refunded the $1,122.30 that
3
In reaching this determination, we assume, without deciding, that the exigent
collection provisions were lawful and that OPM properly invoked them.
5
it withheld from the appellant’s deceased husband’s basic annuity. 4 OPM appears
to argue that complete rescission does not require such a refund. PFR File, Tab 4
at 4-5. For the following reasons, we find that remand is necessary because we
are unable to make a determination as to whether OPM has provided status quo
ante relief.
¶10 Although OPM withheld the $1,122.30 from the appellant’s late husband’s
basic annuity payment before it issued the final decision under appeal, that
withholding was based on the same overpayment determination underlying the
final decision. IAF, Tab 1 at 16-19; PFR File, Tab 1 at 10-11. Complete
rescission of the decision and a return to the status quo ante requires OPM to
refund that money to the appellant if she has an interest in it under FERS.
Cf. 5 U.S.C. § 8461(e)(1) (providing for Board appeals of OPM determinations
affecting an individual’s rights or interests under FERS); Miller v. Office of
Personnel Management, 123 M.S.P.R. 68, ¶ 11 (2015) (observing in an appeal
arising under the Civil Service Retirement System that the Board’s jurisdiction
over retirement matters generally derives from an appellant’s rights or interests
under Federal retirement law); 5 C.F.R. § 1201.3(a)(2).
¶11 It appears likely that the appellant has such an interest in all or some of her
late husband’s accrued but unpaid annuity. OPM is to distribute such amounts to
the beneficiary properly designated by the annuitant. 5 U.S.C. § 8424(d), (g). If
there is no such beneficiary, payment is made to the widow or widower of the
deceased former employee. 5 U.S.C. § 8424(d). Because the record does not
reflect whether the appellant’s late husband made a designation for his accrued
but unpaid annuity, we cannot determine whether OPM has returned the appellant
4
In addition, OPM withheld one monthly installment from the appellant’s survivor
annuity after the initial decision was issued. PFR File, Tab 1 at 7, 12, Tab 4 at 5-6.
OPM asserts that it did so in error and that it refunded that money to the appellant. PFR
File, Tab 4 at 5-7. The appellant does not dispute OPM’s assertion.
6
to the position in which she would have been had the final decision not been
issued. If the administrative judge finds that the appellant has no entitlement to
the $1,122.30, then she may determine that OPM has afforded status quo ante
relief, and once again dismiss the appeal for lack of jurisdiction. 5 See 5 U.S.C.
§ 8442(d)(1) (providing that, as applicable here, a widow’s survivor annuity
“commences on the day after the death of the individual on whose service such
annuity is based”).
ORDER
¶12 We remand this appeal for further adjudication consistent with this Opinion
and Order.
FOR THE BOARD:
______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.
5
On remand, the appellant has the burden of proving jurisdiction by preponderant
evidence. 5 C.F.R. § 1201.56(b)(2)(i)(A).