The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
LAURIE V. ANSORGE, DOCKET NUMBER
Appellant, PH-0845-22-0194-I-1
v.
OFFICE OF PERSONNEL DATE: May 22, 2023
MANAGEMENT,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Kimberly H. Berry, Esquire, Reston, Virginia, for the appellant.
Karla W. Yeakle, Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
affirmed the final decision of the Office of Personnel Management (OPM) finding
that the appellant had been overpaid Federal Employee Retirement System
(FERS) annuity benefits. For the reasons discussed below, we GRANT the
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
appellant’s petition for review, VACATE the initial decision, and ORDER OPM
to cancel its final decision concluding that the appellant was overpaid $2,002.96
in interim annuity benefits and was not eligible for an annuity supplement and to
retroactively recalculate the appellant’s annuity pursuant to the new evidence
discussed below.
BACKGROUND
¶2 The appellant retired effective October 6, 2021, at age 57 from her position
as Supervisory IT Specialist for the Food and Drug Administration (FDA),
Department of Health and Human Services (DHHS). Initial Appeal File (IAF),
Tab 1 at 12. At the time of her retirement, she believed that she had 30 years plus
1 day of creditable Federal service and that she would be eligible to receive a
FERS annuity supplement. IAF, Tab 1 at 4-5, Tab 3 at 4. On March 22, 2022,
OPM notified the appellant that it had determined she had been overpaid
$2,002.96 in estimated interim annuity payments and that it would collect the
overpayment in seven monthly installments of $269.01 and one final installment
of $119.89. IAF, Tab 3 at 16-18. The appellant requested reconsideration of the
existence and amount of the overpayment, alleging that OPM had incorrectly
calculated her annuity by failing to include the annuity supplement she qualified
for based on her 30 years of service and her age at retirement, and that she had in
fact been underpaid. Id. at 19-20. On May 5, 2022, OPM issued a final decision
concluding that the appellant was not eligible for an annuity supplement because
it calculated that she only worked 29 years and 11 months , and it affirmed its
initial decision. IAF, Tab 1 at 8.
¶3 The appellant timely appealed to the Board, arguing that OPM erroneously
denied her entitlement to an annuity supplement. Id. at 4. After holding the
requested hearing with only the appellant because OPM failed to participate in the
appeal, the administrative judge issued an initial decision affirming OPM’s final
decision. IAF, Tab 17, Initial Decision (ID) at 1-2. The administrative judge
3
found that based on the language at 5 U.S.C. § 8411(a) 2 and in OPM guidance, 3
the 6 days that the appellant worked in October 2021 constituted a fractional part
of a month that did not count towards her creditable service . ID at 2-4. The
administrative judge further found that although the appellant relied on retirement
estimates provided by the FDA and online platforms that showed that she had just
over 30 years of service credit and would be entitled to an unreduced annuity,
erroneous advice could not serve to estop OPM from denying benefits prohibited
by law and that OPM was bound by the language in 5 U.S.C. § 8411(a). ID at 4
(citing Office of Personnel Management v. Richmond, 496 U.S. 414 (1990)).
¶4 The appellant filed a timely petition for review. Petition for Review (PFR)
File, Tab 1. She argued that the Board should grant her petition for review based
on new and material evidence coming forward in a constructive discharge case
she filed against the FDA as a result of the FDA’s error and misadvice in
calculating her retirement date. Id. at 5-8. She discussed the ongoing confusion
regarding her creditable service and specifically noted that her constructive
discharge case was in settlement negotiations that could lead to her retirement
date being recalculated or corrected to comply with OPM regulations, which
would directly affect OPM’s final decision in this case . Id. at 6. OPM filed a
response, maintaining that it correctly computed the appellant’s annuity and
overpayment based on the records contained in her retirement file at that time .
PFR File, Tab 5 at 4-8. In her reply, the appellant discussed additional new and
conflicting information regarding her retirement and also stated that she was
2
The relevant statute for determining creditable service for FERS retirement annuity
purposes states that “[t]he total service of an employee or Member is the full years and
twelfth parts thereof, excluding from the aggregate the fractional part of a month, if
any.” 5 U.S.C. § 8411(a)(1).
3
See Office of Personnel Management, Civil Service Retirement System (CSRS) and
Federal Employees’ Retirement System (FERS) Handbook for Personnel and Payroll
Offices (Handbook), Ch. C050, Sections 50A2.1-2, 50A2.1-3, (Apr. 1998),
https://www.opm.gov/retirement-center/publications-forms/csrsfers-handbook/c050.pdf
(last visited May 19, 2023).
4
awaiting receipt of a proposed settlement agreement in her constructive discharge
case that would result in there no longer being an overpayment . PFR File,
Tab 6 at 4-10.
¶5 After the record closed on review, the Clerk of the Board issued an order
seeking more information as to the impact of the appellant’s constructive
discharge appeal on the issues in this case and gave both parties the opportunity
to reply. PFR File, Tab 7; see also PFR File, Tabs 8-10. In her response, the
appellant submitted an executed settlement agreement between her and her former
agency that states that the DHHS will process the appellant’s retirement effective
November 30, 2021, and that the DHHS “is taking this action to ensure [the
a]ppellant has at least 30-years of Federal service for purposes of determining her
eligibility for the FERS Annuity Supplement and MRA [minimum retirement age]
+30 retirement.” PFR File, Tab 9 at 9. Both the appellant and OPM
acknowledged that the DHHS is taking action to implement this agreement, and
OPM indicated that it has already been in contact with the DHHS regarding the
documentation and other steps necessary to readjudicate the appellant’s
retirement. PFR File, Tab 9 at 5-6, Tab 10 at 6.
DISCUSSION OF ARGUMENTS ON REVIEW
¶6 An appellant bears the burden of proving her entitlement to the retirement
benefits she seeks by preponderant evidence. See Cheeseman v. Office of
Personnel Management, 791 F.2d 138, 140-41 (Fed. Cir. 1986); 5 C.F.R.
§ 1201.56(b)(2)(ii). Individuals that have reached a minimum retirement age
(MRA) based on their year of birth and have at least 30 years of Federal service
are entitled to an immediate unreduced retirement annuity under what OPM labels
as “MRA+30 retirement.” See 5 U.S.C. § 8412(a); Office of Personnel
Management, Civil Service Retirement System (CSRS) and Federal Employees’
Retirement System (FERS) Handbook for Personnel and Payroll Offices
(Handbook), Ch. C041, Section 41B1.1-2, Subpart F, (Apr. 1998),
5
https://www.opm.gov/retirement-center/publications-forms/csrsfers-handbook/
c041.pdf (last visited May 19, 2023); see also De Laet v. Office of Personnel
Management, 70 M.S.P.R. 390, 394 (1996) (recognizing that the Handbook is an
authoritative interpretation of employee rights and agency responsibilities under
Federal retirement laws); PFR File, Tab 5 at 5 n.3. In addition, individuals who
retire before age 62 and who are entitled to an immediate annuity are also eligible
for an annuity supplement to bridge the gap until the employee becomes eligible
for Social Security benefits. See 5 U.S.C. § 8421(a)(1); Handbook, Ch. C051,
Section 51A1.1-1, https://www.opm.gov/retirement-center/publications-forms/
csrsfers-handbook/c051.pdf (last visited May 19, 2023).
¶7 The Board may grant a petition for review when the petitioner establishes
that new and material evidence is available that, despite due diligence, was not
available when the record closed. 5 C.F.R. § 1201.115(d)(1). To constitute new
and material evidence, the information contained in the documents, not just the
documents themselves, must have been unavailable despite due diligence when
the record closed. Grassell v. Department of Transportation, 40 M.S.P.R. 554,
564 (1989). Evidence is material when it is of sufficient weight to warrant an
outcome different from that of the initial decision. Russo v. Veterans
Administration, 3 M.S.P.R. 345, 349 (1980); see also Banks v. Department of the
Air Force, 4 M.S.P.R. 268, 271 (1980) (finding that the Board will not consider
an argument raised for the first time in a petition for review absent a showing that
it is based on new and material evidence not previously available despite the
party’s due diligence). Here, we find that the appellant’s settlement agreement
with the DHHS is significant new evidence that warrants granting her petition for
review. To this end, it is clear that the appellant only filed her constructive
discharge appeal after the administrative judge issued the ini tial decision and that
she only executed her settlement agreement with the DHHS in November 2022,
after the close of the record on review. PFR File, Tab 1 at 6, Tab 9 at 11.
Furthermore, because the settlement agreement adjusts the appellant’s years of
6
creditable Federal service and thus her eligibility for certain retirement benefits
such as the annuity supplement at issue in this appeal, it is clearly material. 4 See
PFR File, Tab 9 at 9.
¶8 As discussed above, OPM found in its final decision that the appellant was
not eligible for an annuity supplement because she only worked 29 years and
11 months and that it correctly computed her FERS annuity, and thus that she had
been overpaid in estimated interim annuity payments. IAF, Tab 1 at 8. And the
administrative judge found that the appellant failed to show that OPM incorrectly
calculated her years of service or that its decision was otherwise erroneous.
ID at 3-4. However, as a result of the appellant’s new evidence, these decisions
are based on information that is now factually incorrect and they are therefore
erroneous. Specifically, the appellant has presented preponderant evidence
demonstrating that she now has at least 30 years of creditable service, is entitled
to retire under MRA+30 provisions, is eligible to receive a FERS annuity
supplement, and therefore would not have been overpaid in estimated interim
annuity payments. PFR File, Tab 9 at 9. As a result, OPM must cancel its final
decision and coordinate with the appellant and her former employing agency to
obtain the documentation and other information necessary to retroactively
4
Both parties also submitted additional documentation on review that was not
submitted below. Specifically, the appellant submitted more recent email
correspondence with the FDA/DHHS discussing the calculation of her retirement date ,
PFR File, Tab 1 at 10-12, OPM submitted documentation in its response regarding how
it calculated the appellant’s annuity, PFR File, Tab 5 at 11-13, and the appellant
submitted documentation in reply including personnel records, historical retirement
calculations from multiple agencies and online platforms, and correspondence regarding
her retirement. PFR File, Tab 6 at 11-36. However, we find that this evidence is either
not new or not material, especially now given our consideration of the appellant’s
settlement agreement with the DHHS. To the extent that some of these documents were
already submitted below, evidence that is already part of the record is not new evidence
that warrants granting review. Meier v. Department of the Interior, 3 M.S.P.R. 247,
256 (1980).
7
recalculate the appellant’s retirement benefits based on her new separation date of
November 30, 2021. 5, 6
ORDER
¶9 We ORDER OPM to cancel its final decision concluding that the appellant
was overpaid $2,002.96 in annuity benefits and was not eligible for an annuity
supplement. OPM must coordinate with the appellant and the FDA/DHHS
regarding the actions and documentation necessary to retroactively recalculate the
appellant’s retirement benefits based on her separation date of November 30,
2021, as discussed above, and readjudicate her case accordingly. OPM must
complete this action no later than 60 days after the date of this decision.
¶10 We further 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
5
Because we are ordering OPM to cancel its final decision and recalculate the
retirement benefits that the appellant is owed, we need not address the appellant’s
remaining argument on review that that she should not be held accountable for her
former agency’s failure to properly calculate her years of Federal service to assure she
met the requirements for MRA+30 retirement and in accordance with the appropriate
statutory language and other guidance as outlined in the ini tial decision. PFR File,
Tab 1 at 8.
6
In her petition for review, the appellant asked OPM to suspend its collection of the
overpayment in the installment payments outlined in OPM’s initial decision and to
refund the amounts collected until this matter is resolved. PFR File, Tab 1 at 5, 8;
see also IAF, Tab 3 at 17. In its response, OPM stated that it suspended its
overpayment collection and refunded the appellant $2,002.96 to return her to the status
quo ante. PFR File, Tab 5 at 5, 9-10. In her reply, the appellant explained that,
although OPM refunded her $2,002.96, the entire amount of overpayment it expected to
collect from her, OPM had actually only collected $807.03 from her. PFR File, Tab 6
at 9; see IAF, Tab 3 at 17. She noted that “there will need to be some accounting done
to properly settle [her] accounts.” PFR File, Tab 6 at 9. We believe that resolution of
this issue will necessarily come as a result of OPM recalculating the appellant’s
retirement benefits. As OPM stated in its response to the Clerk’s order, “[o]nce OPM
receives official amended records from the employing agency and recalculates the
appellant’s annuity based on a separation date of November 30, 2021, it will compute
all annuity paid and due to the appellant to determine any overpayment/underpayment
and will provide the appellant with appropriate due process rights.” PFR File, Tab 8
at 6.
8
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).
¶11 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 TO THE APPELLANT REGARDING
YOUR RIGHT TO REQUEST
ATTORNEY FEES AND COSTS
You may be entitled to be paid by the agency for your reasonable attorney
fees and costs. To be paid, you must meet the requirements set out at Title 5 of
the United States Code (5 U.S.C.), sections 7701(g), 1221(g), or 1214(g). The
regulations may be found at 5 C.F.R. §§ 1201.201, 1201.202, and 1201.203. If
you believe you meet these requirements, you must file a motion for attorney fees
and costs WITHIN 60 CALENDAR DAYS OF THE DATE OF THIS DECISION.
You must file your motion for attorney fees and costs with the office that issued
the initial decision on your appeal.
NOTICE OF APPEAL RIGHTS 7
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
7
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.
9
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 f ile 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:
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
10
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,
11
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. 8 The court of appeals must receive your
8
The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
12
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
following address:
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 we bsite 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.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
13
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
FOR THE BOARD: /s/ for
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.