Opinion

Alphonso Brown v. Office of Personnel Management

Court: Merit Systems Protection Board
Filed: Nov 16, 2023
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 14.3%

finding that the Handbook is not entitled to the same weight as formal regulations

How later courts described this case

finding that the Handbook is not entitled to the same weight as formal regulations
“The essential requirements of due process . . . are notice and an opportunity to respond” prior to being deprived of a “constitutionally protected property interest.”

Written by the judges who cited it.

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

ALPHONSO BROWN, DOCKET NUMBER

Appellant, DC-0831-18-0238-I-1

OFFICE OF PERSONNEL DATE: November 16, 2023

MANAGEMENT,

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Alphonso R. Brown , Stafford, Virginia, pro se.

Carla Robinson , 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 reconsideration decision of the Office of Personnel Management

(OPM) regarding an overpayment. Generally, we grant petitions such as this one

only in the following circumstances: the initial decision contains erroneous

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

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

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. 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. Except as expressly

MODIFIED to address the appellant’s Federal Erroneous Retirement Coverage

Corrections Act (FERCCA) claim, we AFFIRM the initial decision.

BACKGROUND

¶2 The appellant was a District of Columbia (DC) employee from June 6, 1976,

to December 2, 1988, covered by the Civil Service Retirement System (CSRS).

Initial Appeal File (IAF), Tab 8 at 9, 48. Effective December 4, 1988, he was

hired as a Federal employee by the Environmental Protection Agency (EPA). Id.

at 9, 48, 60. The EPA originally designated the appellant as belonging in CSRS

Offset. IAF, Tab 1 at 144. However, in May 2010, it advised the appellant that

this designation was in error because when he was hired by the EPA he went from

one CSRS covered position to another. Id. The EPA informed him that he was

entitled to corrective action under FERCCA. Id. It placed the appellant in CSRS

and corrected his retirement records. Id. at 144, 148.

¶3 The appellant retired from the EPA effective December 2011. IAF, Tab 8

at 45. In processing the appellant’s retirement paperwork, the EPA treated both

his DC and Federal service as CSRS-covered. Id. at 48. In May 2012, OPM

advised the appellant, who was then 59 years old, that his retirement annuity

might be “subject to an offset” for Social Security benefits beginning when he

turned 62 years of age. Id. at 21. Approximately 2 years later, OPM alerted the

EPA to what it believed was a coverage error. Id. at 20. According to OPM, the

EPA should have placed the appellant in CSRS Offset rather than CSRS. Id.

¶4 In September 2017, OPM advised the appellant that it was reducing his

monthly annuity payments to offset for Social Security benefits, and also

assessing an overpayment due to its failure to begin the offset when the appellant

turned age 62. Id. at 12. The appellant requested reconsideration, disagreeing

with his placement in CSRS Offset, and asserting that he had not applied for

Social Security, which he intended to delay until age 66. Id. at 34-36. OPM

issued a reconsideration decision in December 2017, denying the appellant’s

request. Id. at 7-11. In pertinent part, it found that the appellant belonged in

CSRS Offset upon his appointment to the Federal Government because that

employment began after 1983, and therefore he was “covered by Social Security.”

Id. at 9-10. The appellant asserted below, and OPM does not dispute, that its

reconsideration decision was the first notification he received that his placement

in CSRS was in error. IAF, Tab 6 at 5.

¶5 The appellant filed the instant appeal, arguing that he does not owe an

overpayment because his placement in CSRS Offset was incorrect. IAF, Tab 1

at 8, Tab 6 at 4. He also requested a waiver of the overpayment. IAF, Tab 6 at 6,

Tab 10 at 5-6. The administrative judge issued an initial decision in which he

affirmed OPM’s determination that the appellant owed an overpayment. IAF,

Tab 14, Initial Decision (ID) at 3. He also concluded that although the appellant

was not at fault for the overpayment, he was not entitled to a waiver. ID at 3-5.

¶6 The appellant has filed a petition for review. Petition for Review (PFR)

File, Tab 1. He argues that the EPA and OPM are to blame for the creation of the

overpayment. PFR File, Tab 1 at 4-6. He also argues that he is entitled to a

financial hardship waiver of the overpayment. Id. at 6. OPM has not responded

to the petition for review. The Acting Clerk of the Board issued an order to OPM

to provide evidence and argument supporting its conclusion that the appellant

belongs in CSRS Offset, to which OPM has responded. PFR File, Tab 3 at 3,

Tab 5.

DISCUSSION OF ARGUMENTS ON REVIEW

The administrative judge erred in failing to address the appellant’s claim that he

belonged in Civil Service Retirement System (CSRS).

¶7 The administrative judge did not address the appellant’s arguments below

that he belonged in CSRS, not CSRS Offset. IAF, Tab 1 at 8, Tab 6 at 4. We

modify the initial decision to address this claim. Although the appellant does not

re-raise it on review, he questions the handling of the EPA’s error in placing him

in CSRS and the EPA and OPM’s failure to notify him of his placement in CSRS

Offset until September 2017. PFR File, Tab 1 at 4-6.

¶8 FERCCA, Pub. L. No. 106-265, Title II, 114 Stat. 770 (2000) (codified at

5 U.S.C. 8331 note), addresses the problems created when employees are in the

wrong retirement plan for an extended period. Archer v. Office of Personnel

Management, 120 M.S.P.R. 68, ¶ 6 (2013). An employee may seek relief under

FERCCA if he experienced a qualifying retirement coverage error. Id. A

“qualifying retirement coverage error” is “an erroneous decision by an employee

or agent of the Government as to whether Government service is CSRS covered,

CSRS Offset covered, FERS covered, or Social Security -Only covered that

remained in effect for at least 3 years of service after December 31, 1986.” Id.

(quoting 5 C.F.R. § 839.102 (defining this term for purposes of the regulations

implementing FERCCA)). An employee who has been the subject of a qualifying

retirement coverage error under FERCCA may be entitled to various forms of

relief, including a choice of retirement plans. Id.

¶9 An individual subject to a decision implicating FERCCA has the right to

appeal to the Board. 5 U.S.C. §§ 8347(d)(1), 8461(e)(1); 5 C.F.R.

§§ 839.1301(a), 839.1302(a); see Wible v. Department of the Army, 120 M.S.P.R.

333, ¶¶ 2, 7-8 (2013) (finding that the Board has jurisdiction to review whether an

agency correctly determined that a retirement coverage error was not covered by

FERCCA even though it appeared that the error lasted less than 3 years). OPM’s

determination that the EPA erred in placing the appellant in CSRS is such a

decision. IAF, Tab 8 at 9-10. Thus, the administrative judge should have made a

determination as to whether the appellant belonged in CSRS or CSRS Offset.

Here, the alleged error in the appellant’s retirement coverage lasted for more than

3 years, between his Federal appointment in 1988 and his retirement in 2011.

We agree with OPM that the appellant belongs in CSRS Offset.

¶10 The appellant’s DC service was covered by CSRS. IAF, Tab 8 at 48. While

he was still employed by the DC Government, in June 1986, President Ronald

Reagan signed the Federal Employees’ Retirement System Act of 1986 (FERSA)

into law. Pub. L. No. 99-335, 100 Stat. 514 (codified, as amended, primarily at

5 U.S.C. chapter 84). FERSA established a new retirement system, the Federal

Employees’ Retirement System (FERS). See 5 U.S.C. § 8402(a) (explaining that

chapter 84 of Title 5 comprises the FERS provisions). The definition of an

employee subject to FERS does not include “an individual first employed by the

government of the District of Columbia before October 1, 1987,” like the

appellant. IAF, Tab 8 at 48; 5 U.S.C. §§ 8331(1)(G), 8401(11); see S. Rep.

No. 99-166, at 40 (1985) (Comm.) (reflecting that the exclusion of DC employees

from FERS was intentional). Rather, such an individual is an employee for

purposes of CSRS. 5 U.S.C. § 8331(1)(G).

¶11 Federal employees whose service is subject to deductions for coverage

under both CSRS and the Social Security Old Age, and Survivors and Disability

Insurance program (OASDI) belong in CSRS Offset. Taxera v. Office of

Personnel Management, 95 M.S.P.R. 97, ¶ 2 (2003); 5 C.F.R. § 839.102. Thus, if

the appellant’s employment with the EPA was subject to OASDI, he belongs in

CSRS Offset.

¶12 The appellant became a Federal employee with the EPA on December 4,

1988. IAF, Tab 8 at 48. Had he begun Federal employment earlier, he may have

been continued to be exempt from OASDI during his Federal employment with

the EPA. 42 U.S.C. 410(a)(5) (excepting from the definition of employment

subject to OASDI continued service by certain Federal employees previously

covered by CSRS); 20 C.F.R. § 404.1018(a)(1) (same). However, this exception

is only available to individuals who worked for the United States or one of its

instrumentalities prior to December 31, 1983. 20 U.S.C. § 410(a)(5)(B)(i);

20 C.F.R. § 404.1018(a)(1)(i). “Instrumentality” is not defined for purposes of

the statute.

¶13 Although “instrumentality” is not defined, the statute defining employment

for purposes of OASDI separately addresses exemptions for certain DC

employees, including those covered by CSRS. 42 U.S.C. § 410(a)(7)(D). Thus, if

the appellant had continued with his DC employment, he would have remained in

CSRS without an offset. The fact that the same statute addresses DC employment

while separately addressing employment with the United States or its

instrumentalities indicates to us that Congress viewed those two types of

employment to be distinct. 42 U.S.C. § 410(a)(5), (7)(D); see Brodsky v. Office

of Personnel Management, 108 M.S.P.R. 228, ¶ 20 (2008) (inferring from the use

of two different words in the same act that the terms are intended to have

different meanings). Therefore, we conclude that Congress did not view DC

employment as equivalent to employment for the United States or its

instrumentalities, and former DC employees entering Federal service for the first

time after December 31, 1983, are not exempt from OASDI. Because the

appellant’s Federal service was not exempted from OASDI, OPM properly

determined that he belongs in CSRS Offset. 5 U.S.C. § 410(a)(5); see Taxera,

95 M.S.P.R. 97, ¶ 2; 5 C.F.R. § 839.102.

¶14 Both below and on review, OPM relied on its CSRS and FERS Handbook

for Personnel and Payroll Offices (Handbook) to argue that the appellant’s

retirement coverage for his EPA employment is CSRS Offset. IAF, Tab 8 at 23;

PFR File, Tab 5 at 6. In particular, the Handbook states that an individual with

5 years of CSRS creditable DC service is covered by CSRS Offset when he is first

hired by the Federal Government. IAF, Tab 8 at 23 (Handbook, § 12A4.1-1(H)).

Although we do not find it appropriate to defer to the Handbook, we do find that

it lends additional support to our conclusions here. See Roman v. Central

Intelligence Agency, 297 F.3d 1363, 1368-69 (Fed. Cir. 2002) (finding that the

Handbook is not entitled to the same weight as formal regulations); Hatch v.

Office of Personnel Management, 97 M.S.P.R. 669, ¶¶ 15-16 (2004) (finding that

an OPM letter was not entitled to the same deference as a regulations adopted

after public notice and comment, but was entitled to deference to the extent it was

persuasive) (citations omitted), recons. denied, 100 M.S.P.R. 204 (2005). Thus,

we agree with OPM that the appellant belongs in CSRS Offset. In the case of an

employee, like the appellant, who was erroneously placed under CSRS, but who

should have been placed under CSRS Offset, the correction of such a retirement

coverage error is mandatory. 2 FERCCA, 114 Stat. 770, 779 § 2142; Nasdahl v.

Department of Veterans Affairs, 119 M.S.P.R. 283, ¶¶ 4, 8 (2013); see 5 C.F.R.

§ 839.701 (providing that under both CSRS Full and CSRS Offset, the employee

may not elect their retirement coverage but rather must be placed in the correct

plan).

¶15 OPM properly corrected the EPA’s May 2010 error by placing the appellant

in CSRS Offset in 2014. IAF, Tab 8 at 20. Absent a retirement coverage error,

we are unable to consider the appellant’s claims regarding the EPA and OPM’s

delay in informing him of the error. See 5 C.F.R. § 839.1302(a) (limiting the

The appellant alleges that OPM violated his due process rights by failing to

communicate with him regarding the correction of his placement in CSRS Offset. PFR

File, Tab 1 at 5; IAF, Tab 10 at 5. However, he admits that OPM refunded the amounts

it originally collected. PFR File, Tab 1 at 5. Thus, we discern no basis to conclude that

he was denied his due process rights of notice and an opportunity to respond before

being required to repay the overpaid funds. See Cleveland Board of Education v.

Loudermill, 470 U.S. 532, 542, 546-48 (1985) (“The essential requirements of due

process . . . are notice and an opportunity to respond” prior to being deprived of a

“constitutionally protected property interest.”).

Board’s FERCCA jurisdiction to a decision affecting an individual’s retirement

coverage “rights and interests”).

The appellant is not entitled to a waiver of his overpayment.

¶16 The parties do not dispute on review the administrative judge’s finding that

the appellant received an overpayment. ID at 3. We discern no basis to disturb

that finding here. The administrative judge also determined that the appellant was

not entitled to waiver of the overpayment. ID at 3-5. We agree.

¶17 An appellant bears the burden of proving he is entitled to a waiver of an

overpayment by substantial evidence. Fearon v. Office of Personnel

Management, 109 M.S.P.R. 606, ¶ 5 (2008); 5 C.F.R. § 831.1407(b). Waiver of

recovery of an overpayment may be granted when the annuitant is without fault

and recovery would be against equity and good conscience. 5 U.S.C. § 8346(b);

Fearon, 109 M.S.P.R. 606, ¶ 5; 5 C.F.R. § 831.1401. Generally, recovery is

against equity and good conscience when it would cause financial hardship, the

annuitant can show that because of the overpayment he relinquished a valuable

right or changed positions for the worse, or recovery could be unconscionable

under the circumstances. Fearon, 109 M.S.P.R. 606, ¶ 5; 5 C.F.R. § 831.1403.

¶18 The administrative judge found that the appellant was without fault in the

overpayment. ID at 4. He also found that recovery of the overpayment was not

unconscionable. The parties do not dispute these findings, and we decline to

disturb them. 3 ID at 4; IAF, Tab 8 at 7, 10, 15. To the extent that the appellant is

alleging that OPM’s delay between when he first became eligible for Social

Security old-age benefits in December 2014 and when it notified him of the

Although the administrative judge did not address whether the appellant established

that he relied on the overpayment to his detriment, the appellant did not make such a

claim below or on review. IAF, Tab 10 at 5-6. Therefore, we find no need to address

this potential basis for waiver. To the extent that the appellant alleges that his

retirement was the result of misinformation by his employing agency, he may file a

separate appeal regarding an alleged involuntary retirement. IAF, Tab 1 at 8; see

Morrison v. Department of the Navy, 122 M.S.P.R. 205, ¶ 7 (2015) (explaining that

retirement is involuntary if it is obtained by agency misinformation or deception). We

make no findings here as to the merits or timeliness of such an appeal.

overpayment in September 2017 was unconscionable, we disagree. PFR File,

Tab 1 at 6; see Spinella v. Office of Personnel Management , 109 M.S.P.R. 185,

¶¶ 2, 8-10 (2008) (declining to find a 79-month delay in OPM’s discovery of its

error, which caused an overpayment, was unconscionable, even though OPM

failed to conduct a timely audit that would have uncovered its error sooner).

¶19 As to financial hardship, the administrative judge concluded that the

appellant failed to provide OPM with information regarding his income, assets, or

liabilities, and therefore was not entitled to a waiver on this basis. ID at 5. On

review, the appellant argues that financial hardship can be “assume[d]” from the

reduction of his “fixed pension serving as the sole source income.” PFR File,

Tab 1 at 6. We are not persuaded. OPM advised the appellant below of his

ability to seek a financial hardship waiver and instructed him to submit a

Financial Resources Questionnaire (FRQ) if he did so. IAF, Tab 8 at 16, 36. In

seeking reconsideration of OPM’s overpayment decision, the appellant did not

indicate he was requesting a waiver, and there is no evidence he submitted an

FRQ or other financial statement. Id. at 34-36. The file is devoid of any

information from which we can conclude that the appellant “needs substantially

all of . . . his current income and liquid assets to meet current ordinary and

necessary living expenses and liabilities,” as necessary to establish financial

hardship. 5 C.F.R. § 831.1404. Thus, we agree with the administrative judge that

the appellant is not entitled to a financial hardship waiver. 4

¶20 Accordingly, we affirm the initial decision as modified above.

OPM has advised the Board that it may seek recovery of any debt remaining upon an

appellant’s death from the appellant’s estate or other responsible party. A party

responsible for any debt remaining upon the appellant’s death may include an heir

(spouse, child or other) who is deriving a benefit from the appellant’s Federal benefits,

an heir or other person acting as the representative of the estate if, for example, the

representative fails to pay the United States before paying the claims of other creditors

in accordance with 31 U.S.C. § 3713(b), or transferees or distributers of the appellant’s

estate. Pierotti v. Office of Personnel Management, 124 M.S.P.R. 103, ¶ 13 (2016).

NOTICE OF APPEAL RIGHTS 5

The initial decision, as supplemented by this Final Order, constitutes the

Board’s final decision in this matter. 5 C.F.R. § 1201.113. 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 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 file

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:

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.

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

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,

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. 6 The court of appeals must receive your 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