                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     M. CARMEN LUNA,                                 DOCKET NUMBER
                  Appellant,                         DA-831M-14-0569-C-1

                  v.

     OFFICE OF PERSONNEL                             DATE: June 30, 2015
       MANAGEMENT,
                   Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Anthony Rogers, San Antonio, Texas, for the appellant.

           Lesley Gordon, 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 compliance initial
     decision, which denied her petition for enforcement.            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


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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     interpretation of statute or regulation or the erroneous application of the law to
     the facts of the case; the 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, and based on the following
     points and authorities, 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).
¶2         The administrative judge issued an initial decision on October 1, 2014,
     reversing the Office of Personnel Management’s (OPM’s) reconsideration
     decision finding that the appellant had received an annuity overpayment.             See
     Luna v. Office of Personnel Management, MSPB Docket No. DA-831M-14-0569-
     I-1, Initial Appeal File (IAF), Tab 14, Initial Decision (ID) at 1.                 The
     administrative judge found that OPM failed to submit any evidence to support its
     finding that the appellant received an overpayment of her annuity and ordered
     OPM to waive collection of the overpayment amount of $301,327.63. ID at 2-3.
     The administrative judge also ordered OPM to pay the appellant the amount of
     money (if any) that it had already deducted from her annuity based on the alleged
     overpayment. 2 ID at 3.
¶3         The appellant filed a petition for enforcement on December 3, 2014,
     arguing that OPM failed to inform her in writing of the actions taken to comply
     with the Board’s final order.      See Luna v. Office of Personnel Management,
     MSPB Docket No. DA-831M-14-0569-C-1, Compliance File (CF), Tab 1 at 3.
     2
       Neither party filed a petition for review of the initial decision; therefore, it became
     final on November 4, 2014.
                                                                                      3

     The appellant further stated that OPM failed to restore her annuity and her health
     insurance, which left her unable to pay for urgent medical care. Id. at 2-3.
¶4        OPM responded to the appellant’s petition by stating that it had fully
     complied with the Board’s order by waiving the overpayment of $301,327.63 and
     terminating all collection actions. CF, Tab 10 at 4. OPM also stated that “[t]here
     were no previously withheld deductions based on the overpayment,” and that
     OPM’s deductions for the Federal Employee Health Benefits Plan (FEHBP)
     premiums and income taxes are not related to the alleged overpayment recovery
     and are not reviewable by the Board. Id.; CF, Tab 14 at 5-7. In addition, OPM
     submitted a November 5, 2014 letter notifying the appellant that it had complied
     with the Board’s order. CF, Tab 10 at 6. In that letter, OPM further stated that it
     would issue a final decision concerning the appellant’s entitlement to an annuity
     and health coverage. Id.
¶5        The appellant argued in response that OPM notified her that it was
     withholding her annuity and terminating her health benefits. CF, Tab 11 at 4-5.
     She also submitted several documents including, inter alia, a May 29, 2014 letter
     from OPM denying her request to reinstate her annuity and FEHBP eligibility and
     a July 15, 2014 reconsideration decision from OPM affirming its initial
     determination that the appellant was overpaid $301,327.63 in annuity benefits.
     CF, Tab 12 at 5, 13.
¶6        The administrative judge issued a memorandum determining that the only
     issue in dispute was whether OPM complied with the Board’s October 1, 2014
     initial decision ordering OPM to waive the collection of $301,327.63 and to pay
     the appellant money (if any) that OPM had already deducted from her annuity
     based on the alleged overpayment. CF, Tab 16 at 1-2. The administrative judge
     also stated that, based on her review of the parties’ submissions, OPM showed
     that it had complied with the Board’s order in the October 1, 2014 initial
     decision. Id. at 2. The administrative judge further found that the record in this
     petition for enforcement did not include an OPM reconsideration decision
                                                                                        4

     terminating the appellant’s annuity and health benefits and that those matters
     were not the subject of her petition for enforcement. Id.; CF, Tab 17, Compliance
     Initial Decision (CID) at 3, n.2. Although the administrative judge directed the
     parties to file any objections or motions to supplement her memorandum in
     writing before February 13, 2015, neither party responded. CF, Tab 16 at 2.
¶7        The administrative judge subsequently denied the appellant’s petition for
     enforcement, finding that OPM proved by preponderant evidence that it had
     complied with the Board’s final order. CID at 3-4. The administrative judge also
     noted in the compliance initial decision that the appellant did not dispute OPM’s
     assertion that it did not make any prior deductions from her annuity based on the
     alleged overpayment or challenge OPM’s statement that it waived the alleged
     overpayment and terminated collection efforts. CID at 3. The appellant has filed
     a timely petition for review arguing that the administrative judge failed to
     recognize that OPM’s initial decision concerning her annuity and health benefits
     was a final appealable decision because OPM failed to act on those matters.
     Compliance Petition for Review (CPFR) File, Tab 1 at 6-7. OPM has filed a
     response in opposition to the appellant’s petition for review. CPFR File, Tab 3.
¶8        The appellant’s arguments on review present no reason to disturb the initial
     decision denying her petition for enforcement. On review, the appellant does not
     dispute that OPM proved by preponderant evidence that it complied with the
     Board’s order concerning the alleged overpayment.               Moreover, as the
     administrative judge noted in her compliance initial decision, the appellant filed a
     separate appeal challenging OPM’s November 12, 2014 reconsideration decision
     affirming its May 29, 2014 initial decision finding that the appellant was not
     entitled to reinstatement of her annuity or health benefits coverage. CID at 3 n.2;
     see Luna v. Office of Personnel Management, MSPB Docket No. DA-0831-15-
                                                                                        5

0253-I-1 (0253), IAF, Tab 1 at 4, 7-11. 3 We therefore find that the appellant’s
claims regarding her annuity and her health benefits are not properly before the
Board in this proceeding. 4 We therefore deny the appellant’s petition for review.

                 NOTICE TO THE APPELLANT REGARDING
                    YOUR FURTHER REVIEW RIGHTS
      You have the right to request review of this final decision by the United
States 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


3
  Although the administrative judge dismissed the 0253 appeal without prejudice on
May 15, 2015, she further ordered that the appeal would be refiled automatically within
30 days after the Board issues its decision on the appellant’s petition for review in this
enforcement action. Luna v. Office of Personnel Management, MSPB Docket No.
DA-0831-15-0253-I-1, Initial Decision (May 15, 2015).
4
  OPM decisions concerning federal health insurance benefits and its administration of
the FEHBP are final and are not reviewable by the Board. Lee v. Office of Personnel
Management, 32 M.S.P.R. 149, 152 (1987); see Richardson v. Office of Personnel
Management, 347 F. App’x 574, 577 (Fed. Cir. 2009) (“Jurisdiction over FEHBP claims
rests with the United States district courts and the Court of Federal Claims, not with the
Board. 5 U.S.C. § 8912.”).
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Title 5 of the United States 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 United
States     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 your appeal to
the 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 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.
