Opinion

Doreen Kingsley v. Office of Personnel Management

Court: Merit Systems Protection Board
Filed: May 31, 2024
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 16.2%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

DOREEN K. KINGSLEY, DOCKET NUMBER

Appellant, SF-0845-19-0522-I-1

OFFICE OF PERSONNEL DATE: May 31, 2024

MANAGEMENT,

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Doreen K. Kingsley , Norco, California, pro se.

Michael Shipley , 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

affirmed the decision of the Office of Personnel Management (OPM) finding that

she had received an annuity overpayment and was not entitled to a waiver.

Generally, we grant petitions such as this one only in the following

circumstances: the initial decision contains erroneous findings of material fact;

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

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 suffered a compensable injury in January 2012, and received

Federal Employees’ Compensation Act (FECA) disability benefits from

the Office of Workers’ Compensation Programs (OWCP) beginning February 28,

2012. Initial Appeal File (IAF), Tab 5 at 72-73. Thereafter, the appellant applied

for disability retirement benefits from OPM, and OPM approved her application

in October 2015. Id. at 160-70, 179-81. On November 16, 2015, the appellant

elected to receive FECA benefits in lieu of FERS disability benefits. Id. at 98. In

March 2018, the appellant changed her election, opting to receive FERS

retirement benefits instead of FECA benefits, effective at the end of that month.

Id. at 89. On April 18, 2018, OWCP notified OPM of the appellant’s new

election, and instructed OPM to commence her monthly annuity payments on

April 1, 2018. Id. at 87-88.

On July 25, 2018, OPM authorized interim payments to the appellant while

it processed her application for benefits, issuing a gross payment of $19,411.00

covering the period from October 11, 2017, to July 30, 2018. Id. at 42. Less than

3 weeks later, on August 14, 2018, OPM notified the appellant that it had

overpaid her $12,549.44 in annuity benefits. Id. at 46. OPM set a repayment

schedule of 36 monthly payments of $348.59 and a final payment of 20 cents. Id.

at 40. The appellant requested that OPM reconsider the existence or the amount

of the overpayment and either waive the overpayment or allow her to repay it in

lower installments. Id. at 40-41. OPM issued a May 1, 2019 final decision

affirming its initial decision finding an overpayment of $12,549.44, but reducing

the collection schedule from $348.59 to $250.00 a month. Id. at 21-24.

The appellant subsequently filed this appeal. IAF, Tab 1. Among other

things, she argued that she was without fault with regard to the overpayment, and

that recovery would be unconscionable. IAF, Tab 7 at 2. The appellant argued

that the repayment schedule caused her financial hardship as it required her to

borrow from her family to survive. Id. at 4. She also contended that OPM

miscalculated her disability retirement annuity, which she argued contributed to

the amount of the overpayment, asserting that OPM should have paid her 60% of

her former salary, not 40%, after her OWCP payments stopped and she began

receiving OPM disability retirement benefits at the end of March 2018. Id. at 3.

The administrative judge held a telephonic hearing. IAF, Tab 18.

She found that OPM established the existence of the overpayment, in the amount

of $12,549.44. IAF, Tab 19, Initial Decision (ID) at 3-5. She also found that the

appellant was not entitled to a waiver of the overpayment, determining that the

appellant failed to establish by substantial evidence that she was not without fault

in creating it, because she should have known that OPM’s interim payment was

for more than she was entitled. ID at 5-6. Lastly, the administrative judge found

that adjustment of the repayment schedule was not warranted because the

appellant’s income exceeded her monthly expenses. ID at 6-10. Thus, the

administrative judge affirmed OPM’s reconsideration decision. ID at 10.

In her petition for review, the appellant argues that the administrative judge

failed to consider that her income has been reduced by OPM’s collection of the

overpayment. 2 Petition for Review (PFR) File, Tab 2 at 4. She asserts that the

monthly expenses considered by the administrative judge did not account for

taxes or a 10% tithe she contributes to her church. Id. at 5-6. The appellant also

argues that, because she turned 62 in April 2019, OPM should pay her a regular,

not disability, retirement annuity, but has failed to do so. Id. at 4-5.

She provides a calculation of what she believes should be her annuity at age 62,

which she acknowledges differs from OPM’s calculation, and she requests that

the Board have OPM resolve the discrepancy. Id. at 4-5, 17. The agency has

filed a response to the appellant’s petition for review. PFR File, Tab 5.

DISCUSSION OF ARGUMENTS ON REVIEW

The administrative judge correctly found that OPM proved the existence and

amount of the overpayment.

OPM bears the burden of proving the existence and amount of an annuity

overpayment by preponderant evidence. Vojas v. Office of Personnel

Management, 115 M.S.P.R. 502, ¶ 10 (2011); 5 C.F.R. § 845.307(a).

The administrative judge found that OPM met its burden to establish the

existence and amount of the overpayment, $12,549.44, which she determined had

resulted from OPM issuing the appellant an interim annuity payment that included

payment of FERS benefits covering a time period for which she had already

received FECA payments from OWCP, October 11, 2017, to March 31, 2018.

ID at 5-6; IAF, Tab 5 at 42, 72. On review, the appellant does not challenge the

existence or amount of the overpayment. PFR File, Tabs 1-2. We agree with the

administrative judge that OPM’s error as to the date on which to switch the

appellant from FECA benefits to OPM benefits resulted in the appellant’s

overpayment. ID at 5-6.

The appellant contends that OPM collected $348.59 from her annuity payment before

it suspended its collection efforts, and that, as of the October 25, 2019 date of her

petition for review, had not repaid her. Petition for Review (PFR) File, Tab 2 at 5.

However, OPM has submitted evidence with its response to the appellant’s petition for

review indicating that it repaid the $348.59 to the appellant on October 29, 2019.

PFR File, Tab 5 at 6. The appellant has not challenged OPM’s assertion.

The appellant also does not challenge the administrative judge’s finding

that OPM properly paid her a disability retirement annuity comprising 40% of her

average pay once she began receiving OPM retirement benefits instead of FECA

benefits on April 1, 2018. ID at 4-5. As the administrative judge observed,

because OPM granted the appellant’s disability retirement effective in

October 2015, had she not opted for OWCP benefits, she would have received

60% of her average salary for 12 months from that date, and then 40% of her

average salary until she reached 62 years of age. Id.; IAF, Tab 5 at 179-81; see

5 C.F.R. §§ 844.301, 844.302(b)(1), (c)(1). Because she chose to begin receiving

OPM disability retirement benefits as of April 1, 2018, which was more than

12 months after the approval of her disability retirement application,

OPM properly calculated her disability annuity as 40% of her average salary.

IAF, Tab 5 at 87-89, 179-80; 5 C.F.R. §§ 844.301, 844.302(b)(1), (c)(1).

Thus, we agree with the administrative judge that OPM correctly calculated the

appellant’s disability retirement annuity. ID at 4-5. As noted above, the

appellant does not challenge these findings on review, and we discern no reason

to disturb the administrative judge’s findings on these issues.

The administrative judge correctly found that the appellant is not entitled to a

waiver of the overpayment .

If OPM meets its burden, the appellant then has the burden of proving by

substantial evidence that she is entitled to a waiver or adjustment of the

overpayment. Vojas, 115 M.S.P.R. 502, ¶ 18; 5 C.F.R. §§ 845.307(b), 1201.56(b)

(2)(ii). Recovery of an overpayment may be waived when the annuitant is

without fault and recovery would be against equity and good conscience.

5 U.S.C. § 8470(b); Vojas, 115 M.S.P.R. 502, ¶ 18; 5 C.F.R. § 845.301. A

recipient of an overpayment is without fault if she performed no act of

commission or omission that resulted in the overpayment. Vojas, 115 M.S.P.R.

502, ¶ 19; 5 C.F.R. § 845.302. Recovery is against equity and good conscience

when it would cause financial hardship, the annuitant can show that she

relinquished a valuable right or changed positions for the worse, or recovery

would be unconscionable under the circumstances. Boone v. Office of Personnel

Management, 119 M.S.P.R. 53, ¶ 5 (2012); 5 C.F.R. § 845.303.

The administrative judge observed that OPM had inexplicably based its

July 25, 2018 interim payment to the appellant on a start date of

October 11, 2017, instead of the April 1, 2018 start date that OWCP instructed it

to use based on the appellant’s election to receive benefits under FERS rather

than FECA. ID at 5; IAF, Tab 5 at 42. 87, 89. For that reason, as noted above,

she found that the appellant should have known that OPM’s interim payment was

for more than she was entitled. ID at 5-6. OPM policy provides that individuals

who know or suspect that they are receiving overpayments are expected to set

aside the amount overpaid pending recoupment, and that in the absence of

exceptional circumstances, which do not include financial hardship, recovery in

these cases is not against equity and good conscience. Boone, 119 M.S.P.R. 53,

¶ 6.

Because the appellant indicated on her March 2018 election form that she

understood that she may not receive FECA and FERS benefits concurrently,

IAF, Tab 5 at 89, and OPM’s interim annuity payment indicated that it was based

on an October 11, 2017 start date, id. at 42, 72, we agree with the administrative

judge that the appellant should have suspected that she received an overpayment

and set it aside pending recoupment, ID at 6; Boone, 119 M.S.P.R. 53, ¶ 6.

Accordingly, there is no basis to waive recovery of the overpayment.

In her petition for review, the appellant asserts that the adjusted monthly

payments of $250.00, which OPM established in its final decision, are still too

much for her to afford. PFR File, Tab 2 at 5; IAF, Tab 5 at 23. She asserts that

the expenses reviewed by the administrative judge to determine her ability to

repay the overpayment neglected to consider taxes of $75.00 per month and a

$200.00 monthly tithe that she contributes to her church. PFR File, Tab 2 at 5.

The administrative judge found that the circumstances did not warrant adjustment

of the repayment schedule because the appellant’s monthly income exceeded her

reasonable monthly expenses. ID at 6-10. Specifically, she found that the

appellant had $3,178.00 in income, $2,021.00 from her FERS annuity and

$1,157.00 from Social Security, and that she had $2,348.27 in approved expenses,

such that her income exceeded her approved expenses by $829.73. ID at 7-9.

Thus, even if we were to add the $275.00 in additional expenses identified by the

appellant on review, her monthly income would still exceed her monthly expenses

by $554.73 ($3,178.00 - $2,623.27). Additionally, we observe that even adding

the $250.00 monthly installment established by OPM to repay the overpayment,

the appellant’s income still exceeds her approved expenses.

The Board lacks jurisdiction over the appellant’s claim that OPM has failed to

redetermine her annuity after age 62 .

Under 5 U.S.C. § 8452(b), a disability annuitant’s benefit is “redetermined”

upon reaching age 62 so that it would equal the regular annuity she would be

entitled to under 5 U.S.C. § 8415, if she had remained an employee during the

time she was receiving disability retirement benefits. The appellant turned 62 in

April 2019. ID at 7 n.5; PFR File, Tab 2 at 4, 9. At the hearing, the appellant

raised the redetermination issue, arguing that the income used to determine her

ability to pay was not accurate because OPM did not correctly recompute her

income at age 62. ID at 7 n.5; IAF, Tab 18, Hearing Compact Disc (testimony of

the appellant). The administrative judge observed that the appellant may seek an

adjustment of her repayment schedule in the future in accordance with OPM’s

guidelines. ID at 7 n.5.

On review, the appellant claims that OPM has still not redetermined her

annuity, despite her emails and phone calls requesting that it do so. PFR File,

Tab 2 at 4-5. She reiterates her argument that the administrative judge

determined her ability to repay the overpayment based on her disability

retirement income, not the income she expects to receive once her annuity is

redetermined based on her reaching 62 years of age. Id. at 5. She requests that

the Board either guarantee that her income will not be reduced, which she

acknowledges may cause another overpayment, or to “[o]therwise, fix it.”

Id. at 5.

However, the Board does not have the authority to order OPM to calculate

and pay an annuity absent a final decision by OPM, and, with exceptions not

pertinent in this matter, the Board generally lacks jurisdiction to hear an appeal of

a retirement matter when OPM has not issued a reconsideration decision on the

matter. See Ramirez v. Office of Personnel Management , 114 M.S.P.R. 511, ¶ 7

(2010). The record does not reflect that OPM has issued a final decision

concerning this issue, the calculation of the appellant’s regular retirement annuity

at age 62. When OPM does so, the appellant may appeal that decision to the

Board. 3 See 5 U.S.C. § 8461(e); 5 C.F.R. § 841.308.

NOTICE OF APPEAL RIGHTS 4

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

The appellant also argues on review, as she did below, that OWCP withheld more for

her life insurance premiums than it should have. PFR File, Tab 2 at 6; IAF, Tab 7

at 22-23. However, the Board lacks jurisdiction over such a claim. Kostishak v. Office

of Personnel Management, 101 M.S.P.R. 422, ¶ 5 (2006) (Board jurisdiction under

FERS does not authorize appeals from claims relating to the Federal Employees Group

Life Insurance Act, chapter 87, title 5, U.S. Code).

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.

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:

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. 5 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).

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.

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