The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
CHERYL RICH, DOCKET NUMBER
Appellant, PH-0831-21-0067-I-1
v.
OFFICE OF PERSONNEL DATE: April 16, 2024
MANAGEMENT,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Cheryl Rich , Blackwood, New Jersey, pro se.
Carla Robinson , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
upheld the reconsideration decision of the Office of Personnel Management
(OPM) finding the appellant was overpaid $14,077 in annuity benefits and was
ineligible for a waiver of recovery of the overpayment, and adjusting the
repayment schedule from 36 monthly installments of $391.02 with a final
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).
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payment of $0.28, to 93 monthly installments of $150 with a final payment of
$127. 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 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 and AFFIRM the initial decision, which is now the Board’s final
decision. 5 C.F.R. § 1201.113(b).
BACKGROUND
The appellant retired from Federal service in April 2019 and began
receiving an annuity under the Federal Employees’ Retirement System (FERS).
Initial Appeal File (IAF), Tab 2 at 1, Tab 16 at 96-99. In May 2020, the appellant
became entitled to Social Security Disability Insurance (SSDI) benefits,
retroactive to October 1, 2019. IAF, Tab 2 at 1, Tab 16 at 28. Between
October 1, 2019, and May 1, 2020, the appellant’s FERS annuity benefit was not
reduced by the SSDI benefit as required by 5 U.S.C. § 8452, resulting in an
overpayment of $14,077. IAF, Tab 2. The appellant requested reconsideration of
OPM’s findings, and OPM issued a reconsideration decision that denied the
appellant’s request for a waiver. Id. OPM adjusted the repayment schedule from
36 monthly installments of $391.02 and a final payment of $0.28, to 93 monthly
installments of $150 and a final payment of $127. Id. at 4.
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The appellant filed an appeal with the Board. Petition for Review (PFR)
File, Tab 1. The administrative judge issued an initial decision upholding OPM’s
reconsideration decision, including the reduced repayment schedule of 93
monthly installments of $150 and a final payment of $127. IAF, Tab 19, Initial
Decision (ID). The appellant has filed a petition for review, and the agency has
filed a response. PFR File, Tabs 1, 4.
DISCUSSION OF ARGUMENTS ON REVIEW
The appellant’s petition for review does not dispute the existence or
amount of the overpayment. PFR File, Tab 1. The appellant requests to be
“responsible for half” the debt or, in the alternative, an adjustment to the
repayment schedule based on financial hardship. Id.
We construe the appellant’s request to be “responsible for half” the debt as
a request for waiver of one-half of the debt. However, once the Board finds that
an overpayment occurred and that the amount of the debt is correct, it lacks any
authority in statute or regulation to unilaterally reduce the amount of the debt.
Gott v. Office of Personnel Management, 97 M.S.P.R. 538, ¶ 10 (2004). The
Board has the statutory authority to order OPM to waive recovery of the entire
overpayment if the recipient shows both that she is without fault and that
recovery would be against equity and good conscience. 5 U.S.C. § 8470(b);
Boone v. Office of Personnel Management, 119 M.S.P.R. 53, ¶ 5 (2012); 5 C.F.R.
§ 845.301. When the appellant is not without fault in creating the overpayment,
she is not entitled to a waiver of the overpayment. Boring v. Office of Personnel
Management, 79 M.S.P.R. 600, ¶ 4 (1998).
We agree with the administrative judge’s finding that the appellant is not
without fault in creating the overpayment, and therefore she is not entitled to a
waiver of the debt. ID at 4-6; see id., ¶ 4. We also agree with the administrative
judge’s finding that the appellant knew or should have known that she was
receiving an overpayment, and therefore the set-aside rule applies, requiring the
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appellant to have preserved the overpaid funds for repayment to OPM. ID at 4-6;
see James v. Office of Personnel Management, 72 M.S.P.R. 211, 217 (1996).
Because the set-aside rule applies, financial hardship is not a basis for waiver.
See Dorrello v. Office of Personnel Management, 91 M.S.P.R. 535, ¶ 7 (2002).
Although the appellant is ineligible for waiver, she may be entitled to an
adjustment of the recovery schedule if she demonstrates that it would cause her
financial hardship to make payment at the scheduled rate. See id.; 5 C.F.R.
§ 845.301. The appellant’s request for the monthly repayment schedule to be
reduced from $391.02 appears to misunderstand OPM’s reconsideration decision
and the initial decision, which adjusted the repayment schedule from 36 monthly
installments of $391.02 with a final payment of $0.28, to 93 monthly installments
of $150 with a final payment of $127. PFR File, Tab 1 at 3; IAF, Tab 2; ID at 7.
The appellant does not assert, and we discern no basis to find, that the
repayment of $150 monthly would cause a financial hardship. The appellant
submitted a Financial Resource Questionnaire (FRQ) asserting a monthly income
of $4,341 and monthly expenses of $3,732.49, resulting in a monthly surplus of
$608.51. IAF, Tab 16 at 54-57. The administrative judge accepted these
representations and found the appellant’s expenses to be normal and ordinary
living expenses. ID at 6-7. The appellant asserts in her petition for review that
she recently accrued a monthly expense of $269 for her car in addition to her
other bills, that her monthly mortgage payment is $1,311, and that she will have
upcoming medical expenses and an increase to her insurance costs. PFR File,
Tab 1. The administrative judge considered the appellant’s mortgage payment 2 in
calculating her monthly expenses. ID at 6-7. Even considering the appellant’s
additional car payment of $269, which was not included in the FRQ, we find that
2
In calculating the appellant’s monthly income and expenses, the administrative judge
accepted the appellant’s asserted mortgage payment of $1,337.07 plus $95 in monthly
fees, which is higher than the mortgage payment asserted in the appellant’s petition for
review and the appellant’s credit report. IAF, Tab 16 at 29-30, 54; ID at 6-7; PFR File,
Tab 1 at 3.
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she has a monthly surplus of more than $300 and liquid assets totaling nearly
$10,000. IAF, Tab 16 at 54-56. Therefore, the appellant has failed to
demonstrate that repayment at a rate of $150 monthly will cause a financial
hardship. ID at 6-7. If the appellant’s financial circumstances change further,
she may seek an adjustment from OPM pursuant to its Policy Guidelines on the
Disposition of Overpayments under the Civil Service Retirement System and the
Federal Employees’ Retirement System § I.D.12. IAF, Tab 16 at 100-38.
Based on the foregoing, we deny the petition for review and affirm the
initial decision.
NOTICE OF APPEAL RIGHTS 3
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.
3
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.
6
(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
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
7
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:
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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. 4 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
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
4
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.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510.
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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.
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: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.