The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
TAMARA C. LUSK, DOCKET NUMBER
Appellant, DE-0845-15-0178-B-1
v.
OFFICE OF PERSONNEL DATE: April 14, 2016
MANAGEMENT,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
David W. Parker, Esquire, Salt Lake City, Utah, for the appellant.
Roxann Johnson, 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 remand initial decision,
which found that the Office of Personnel Management (OPM) established the
existence and amount of an overpayment and that OPM must issue a
reconsideration decision regarding the issue of waiver of the overpayment and
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
adjustment of the repayment schedule. 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 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 and AFFIRM the initial decision as to the existence and amount of the
overpayment, which is now the Board’s final decision concerning this
issue. 5 C.F.R. § 1201.113(b). We agree with the administrative judge that it is
necessary for OPM to issue a reconsideration decision regarding the issue of
waiver of the overpayment, and, if applicable, the adjustment of a repayment
schedule. Thus we FORWARD the appellant’s claim regarding her possible
entitlement to a waiver of the overpayment and adjustment of a repayment
schedule to OPM.
BACKGROUND
¶2 OPM approved the appellant’s application for disability retirement under
the Federal Employees’ Retirement System (FERS) in October 2008. Lusk v.
Office of Personnel Management, MSPB Docket No. DE-0845-15-0178-I-1,
Initial Appeal File (IAF), Tab 4 at 38-39. In March 2010, the Social Security
Administration (SSA) awarded the appellant benefits retroactive to April 2009,
and monthly benefits beginning in March 2010. Id. at 21. Later in March 2010,
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the appellant notified OPM that she had been awarded Social Security disability
benefits. Id. at 20.
¶3 OPM notified the appellant in April 2011, that she had been overpaid for
the period from April 2009 to April 2011, in the amount of $20,505, and that it
would collect this overpayment in monthly installments beginning in
August 2011. IAF, Tab 4 at 11-12. In May 2011, the appellant sought
reconsideration. Id. at 9-10. OPM did not issue its reconsideration decision until
January 2015. Id. at 5-7. In its decision, OPM determined that the appellant was
overpaid $20,505. Id. at 5.
¶4 The appellant timely appealed OPM’s reconsideration decision. IAF, Tab 1.
After holding a telephonic hearing, the administrative judge issued an initial
decision reversing OPM’s reconsideration decision. IAF, Tab 12, Initial Decision
(ID). Specifically, he found that the appellant was overpaid due to her receipt of
Social Security disability benefits but that OPM failed to establish an amount
certain owed by the appellant as a result of the overpayment. ID at 5. The
administrative judge found that OPM erred in its FERS Paid and Due Calculation
worksheet because, although the worksheet stated that the appellant was paid for
the period from April 1, 2010 through April 30, 2011, only one such monthly
payment was included in the calculation of payments received. ID at 4.
Additionally, the administrative judge found, by applying the standard for
computing a disability annuity rate under 5 U.S.C. § 8452(a)(2)(A), that the
worksheet contained an error in its calculation of the rate that the appellant
should have received per month when considering the offset for her Social
Security disability benefits. Id.
¶5 OPM timely petitioned for review. Lusk v. Office of Personnel
Management, MSPB Docket No. DE-0845-15-0178-I-1, Petition for Review File,
Tab 1. In its petition, OPM asserted that, although the administrative judge
correctly found that it miscalculated the number of months the appellant was
overpaid from April 1, 2010 through April 30, 2011, OPM correctly calculated
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the appellant’s annuity rate under 5 U.S.C. §§ 8415, 8452(d)(1), which generally
provides that, if the calculation under 5 U.S.C. § 8452 for a disability annuity rate
is less than the computation of the appellant’s earned annuity rate under 5 U.S.C.
§ 8415, then OPM must pay the appellant the earned annuity rate. Id. at 6. OPM
therefore asserted that the Board should reverse the initial decision to the extent
that it foreclosed the recovery of the $20,505 overpayment. Id. OPM noted that
this amount was less than the overpayment that it should have alleged because it
only included 1 month for the period from April 1, 2010 through April 30, 2011,
but asserted that this was the amount certain that it had established on appeal. Id.
¶6 The Board vacated the initial decision and remanded the appeal for further
adjudication. Lusk v. Office of Personnel Management, MSPB Docket No.
DE-0845-15-0178-I-1, Remand Order (Sept. 11, 2015) (Remand Order).
Specifically, we found that the record did not allow us to determine whether OPM
had proven an amount certain and thus remanded the appeal to: (1) allow OPM to
submit additional evidence and argument regarding how it calculated the
overpayment; and (2) give the appellant the opportunity to present additional
evidence and argument in response to any submission by OPM. Id. at 7. We also
found that, to the extent that the appellant was raising the issue of waiver of any
overpayment and the adjustment of any repayment schedule, if the administrative
judge found that OPM proved an amount certain in overpayment, he should order
OPM to issue a reconsideration decision regarding waiver of the overpayment,
and, if applicable, the adjustment of the repayment schedule. Id.
¶7 On remand, on October 6, 2015, the administrative judge ordered OPM to
submit additional evidence and argument regarding how it calculated the
overpayment no later than October 21, 2015, and stated that the appellant may,
but was not required to, respond to OPM’s submission no later than November 2,
2015. Remand File (RF), Tab 2. OPM responded. RF, Tab 4. However, the
appellant did not respond. The administrative judge issued an initial decision
finding that OPM met its burden of establishing the amount of the overpayment
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by preponderant evidence. RF, Tab 5, Remand Initial Decision (RID) at 7.
Specifically, he found that OPM established that the appellant was overpaid
$30,261 and thus he concluded that the agency met its burden of establishing, by
a preponderance of the evidence, the lesser amount of $20,505. Id. He also
found that OPM must issue a reconsideration decision regarding the issues of
waiver of the overpayment and/or the adjustment of the repayment schedule. Id.
¶8 The appellant has filed a timely petition for review. Remand Petition for
Review (RPFR) File, Tab 1. OPM has responded in opposition to the appellant’s
petition. RPFR File, Tab 4.
DISCUSSION OF ARGUMENTS ON REVIEW
¶9 The appellant argues on review that the new documentation submitted by
OPM did not comply with the Board’s order to explain the gaps or inconsistencies
in its records and that the hearsay evidence provided by OPM is inherently
unreliable, untrustworthy and noncredible and should therefore be inadmissible.
RPFR File, Tab 1 at 5, 9-10. These are not arguments that the appellant raised
below, and therefore, the Board need not consider them for the first time on
review. See Banks v. Department of the Air Force, 4 M.S.P.R. 268, 271 (1980).
¶10 However, even if we did consider these arguments, they would not provide
a basis for disturbing the initial decision. On remand, OPM submitted an
explanation of how it computed the appellant’s annuity, a payment history from
SSA, a part-time computation worksheet, and a corrected paid and due
calculation. RF, Tab 4 at 4-9. We find that this evidence is responsive to the
Board’s remand order. Specifically, the order stated that we could not discern
how OPM calculated an average salary of $49,648, Federal service of 20 years
and 9 months, and a .98 part-time proration factor and thus we could not
determine whether OPM proved an amount certain. Remand Order at 6-7. We
find that this information is responsive, because, along with the salary
information from the appellant’s individual retirement record, it is possible to
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calculate her average pay, her years of service, and her part-time proration factor.
IAF, Tab 4 at 33-37; see 5 U.S.C. § 8401(3).
¶11 Additionally, to assail hearsay evidence, an appellant needs to offer specific
inaccuracies or discrepancies, show the material was not routinely made in the
ordinary course of business, or establish the material is inherently unreliable,
untrustworthy, or noncredible. See Wisecup v. Office of Personnel
Management, 30 M.S.P.R. 191, 193-94, aff’d, 809 F.2d 790 (Fed. Cir. 1986)
(Table). The appellant asserts that OPM submitted paid and due calculations that
were prepared specifically for litigation, contradict one another, and do not show
what OPM actually paid to her. 2 RPFR File, Tab 1 at 10. However, a master
printout and other documents produced by OPM in the ordinary course of
business are sufficient to establish by a preponderance of the evidence that the
appellant was overpaid. See Harris v. Office of Personnel Management, 55
M.S.P.R. 21, 23 (1992). These calculations, which would have been prepared in
the ordinary course of business, were corrected to reflect that the appellant was
paid for 13 months between April 1, 2010 through April 30, 2011, RF, Tab 4 at 9,
as opposed to the prior paid and due calculations that showed that she was paid
for 1 month during that time, IAF, Tab 4 at 8. This correction does not
demonstrate that the paid and due calculation is otherwise unreliable. Thus, the
appellant’s general argument that this evidence does not “actually show what has
been paid,” RPFR File, Tab 1 at 10, also does not provide a basis for discrediting
the evidence.
2
The appellant cites Levine v. Office of Personnel Management, 72 M.S.P.R. 549, 552
(1996), in which the Board found that, where an annotated computer printout submitted
by OPM did not contain entries for the annuity that accrued for a certain time period,
OPM’s representative’s unsworn pleading did not establish an overpayment for that
period. RPFR File, Tab 1 at 10. We find that Levine is not applicable here because
OPM is not seeking to recover an overpayment for a period not covered by its paid and
due calculations.
7
¶12 Furthermore, we agree with the administrative judge that OPM established
the existence and amount of the overpayment. ID at 5-7. OPM has the burden of
proving, by a preponderance of the evidence, 3 the existence and amount of an
overpayment. Vojas v. Office of Personnel Management, 115 M.S.P.R. 502, ¶ 10
(2011); 5 C.F.R. § 845.307(a). OPM submitted a paid and due calculation
indicating that it paid the appellant $2,482 per month from April 1, 2009 to
March 30, 2010, and $1,654 per month from April 2010 to April 2011, for a total
of $51,286, when it should have paid her $841 per month in annuity benefits
during this period for a total of $21,025, thus resulting in a $30,261 overpayment.
RF, Tab 4 at 9.
¶13 We find that the values in the paid and due calculation are supported by the
record. OPM computed the appellant’s average pay as $49,648. Id. at 5. This
computation is supported by the individual retirement record that OPM previously
submitted, id. at 34-36, along with the part-time computation that OPM submitted
on remand, id. at 8. See 5 U.S.C. § 8415(a),(g). OPM further explained that,
consistent with 5 U.S.C. § 8452(d)(1), it used the appellant’s earned annuity rate
in its calculation of her monthly annuity benefit, as computed under 5 U.S.C.
§ 8415, as opposed to her disability retirement annuity rate, because her earned
annuity rate was greater. RF, Tab 4 at 4. OPM stated that it calculated the
appellant’s monthly earned annuity rate as follows: $49,648 (the appellant’s
average annual salary) x 20.75 (retirement factor reflecting the appellant’s 20
years and 9 months of service) x 1% (the appellant’s earned rate under 5 U.S.C.
§ 8415) x .98 (the appellant’s part-time proration factor consistent with 5 U.S.C.
§ 8415(g)(1)(B)) = $10,095 ÷ 12 months = $841 (the appellant’s new monthly
rate). RF, Tab 4 at 5-6. These inputs also are supported by the record. IAF,
3
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).
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Tab 4 at 33-37; RF, Tab 4 at 8. Accordingly, the record supports OPM’s
determination that it should have paid the appellant $841 per month in FERS
disability annuity benefits for a total of $21,025 for the period from April 1, 2009
to March 30, 2010. Instead, OPM paid the appellant $51,286, resulting in an
overpayment of $30,261. RF, Tab 4 at 9. Thus, we agree with the administrative
judge that, even though the amount OPM seeks to recover appears to be less than
the total overpayment, OPM has met its burden of establishing that the appellant
received the $20,505 overpayment. See Grasso v. Office of Personnel
Management, 76 M.S.P.R. 299, 301 (1997) (holding that, where OPM shows that
an annuitant received an overpayment in an amount certain for a period covered
by the reconsideration decision under appeal, it may recover that amount, even if
the amount is less than the total overpayment amount claimed in the
reconsideration decision).
¶14 We have considered the appellant’s argument that the overpayment amount
should be offset by the attorney’s fees she has incurred. RPFR File, Tab 1
at 13-15. However, as previously stated, the appellant has cited no authority, and
we can find none, for the proposition that she is entitled to such a reduction in
repaying any overpayment based upon her payment of attorney’s fees and costs.
See 5 U.S.C. § 8452.
¶15 We also have considered the appellant’s arguments on review that: (1) she
is entitled to waiver of the overpayment; (2) recovery would be unconscionable
under the circumstances; and (3) if the overpayment is not waived, the repayment
schedule should be adjusted. RPFR File, Tab 1 at 11-12. However, the Board
does not have jurisdiction over the issues of waiver and/or adjustment of the
repayment schedule because OPM did not issue a final reconsideration decision
regarding those issues. See Godbout v. Office of Personnel
Management, 466 F.3d 1375, 1379 (Fed. Cir. 2006). Therefore, we agree with the
administrative judge that it is necessary for OPM to issue a reconsideration
decision and we FORWARD to OPM the appellant’s claim regarding her possible
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entitlement to a waiver of the overpayment and adjustment of a repayment
schedule. See, e.g., Ruskin v. Office of Personnel Management, 73 M.S.P.R. 544,
551 (1997).
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
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:
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 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
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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.