                             UNITED STATES DISTRICT COURT
                             FOR THE DISTRICT OF COLUMBIA

                                               )
SHARLYN FOO,                                   )
                                               )
               Plaintiff,                      )
                                               )
       v.                                      )       Case No. 15-cv-2033 (TSC)
                                               )
REX TILLERSON,                                 )
Secretary, U.S. Department of State, et al.,   )
                                               )
               Defendants.                     )
                                               )

                                  MEMORANDUM OPINION

        Defendants have moved for reconsideration of the court’s March 23, 2017 decision,

granting in part and denying in part the parties’ cross-motions for summary judgment. Upon

consideration of the parties’ filings, and for the reasons stated herein, Defendants’ Motion for

Reconsideration will be DENIED.

I.      BACKGROUND

        The facts of this case are set forth in more detail in the court’s March 23, 2017

Memorandum Opinion. (ECF No. 24 (“Mem. Op.”)). Plaintiff SharLyn Foo’s father, Charles

Foo, received retirement annuity payments through the State Department’s Foreign Service

Retirement and Disability System from 1975, until he died in 1984. (See ECF No. 1 (“Compl.”)

¶¶ 17–18; ECF No. 15-4 at 1). After his death, Plaintiff’s mother, Lorna Foo, lawfully collected

survivor annuity payments, which were deposited monthly into a First Hawaiian bank account,

co-owned by Lorna Foo and Plaintiff. (ECF No. 1-3 at 3; Compl. ¶ 17). In May 2012, almost 15

years after her mother died, Plaintiff received a letter from the State Department informing her

that her mother’s survivor annuity payments had been overpaid, and that she was responsible for


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repaying the State Department. (Compl. ¶ 55; ECF No. 15-2). After unsuccessfully contesting

this repayment—first with the State Department directly and later before the Foreign Service

Grievance Board (“FSGB”)—Plaintiff filed a complaint with this court, arguing that the FSGB

violated the Administrative Procedure Act (“APA”), 5 U.S.C. § 706, when it: (1) misinterpreted

and misapplied the “substantial evidence” standard under 22 C.F.R. § 17.8(b); (2) misconstrued

22 U.S.C. § 4047(d) in ruling that she was ineligible for a waiver of repayment; and (3)

erroneously concluded that the State Department did not act ultra vires when it promulgated 22

C.F.R. § 17.7(a)(2). (Compl. at 19–21).

       Upon consideration of the parties’ cross-motions for summary judgment, the court found

that the State Department did not act ultra vires when it promulgated 22 C.F.R. § 17.7(a)(2), but

that the FSGB erred by: (a) applying an evidentiary standard higher than the “substantial

evidence” standard required under 22 C.F.R. § 17.8(b); and (b) finding that the annuity payments

were made to an estate under 22 C.F.R. § 17.7(a)(2). (Mem. Op. at 9, 12–13). As a result, the

court remanded this case to the FSGB for consideration of the merits of Plaintiff’s waiver

request. (ECF No. 25 (“Order”)). Defendants ask this court to reconsider its partial denial of

Defendants’ motion for summary judgment and its remand to the FSGB, arguing that the court

erroneously failed to consider “to whom” the annuity payments were addressed when rendering

its decision. (ECF No. 30 (“Defs. Mot.”) at 1–2).

II.    LEGAL STANDARD

       A court may “relieve a party or its legal representative from a final judgment, order, or

proceeding” for any of six enumerated reasons, including “any . . . reason that justifies relief.”

Fed. R. Civ. P. 60(b)(6); see also Salazar ex rel. Salazar v. District of Columbia, 633 F.3d 1110,

1116 (D.C. Cir. 2011). District courts are “‘vested with a large measure of discretion’” in ruling



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on Rule 60(b) motions. Owens v. Republic of Sudan, 864 F.3d 751, 818 (D.C. Cir. 2017)

(quoting Twelve John Does v. District of Columbia, 841 F.2d 1133, 1138 (D.C. Cir. 1988)).

Nonetheless, under Rule 60(b), the trial judge must strike a “‘delicate balance between the

sanctity of final judgments . . . and the incessant command of a court’s conscience that justice be

done in light of all the facts.’” Id. (quoting Good Luck Nursing Home, Inc. v. Harris, 636 F.2d

572, 577 (D.C. Cir. 1980)). The Supreme Court has noted that the party seeking relief under

Rule 60(b)(6) bears the burden of demonstrating that “extraordinary circumstances” justify relief.

Salazar, 633 F.3d at 1116 (quoting Gonzalez v. Crosby, 545 U.S. 524, 535 (2005)); see also

Ackermann v. United States, 340 U.S. 193, 199 (1950)). The D.C. Circuit has observed that Rule

60(b)(6) “‘should be only sparingly used.’” Kramer v. Gates, 481 F.3d 788, 792 (D.C. Cir.

2007) (quoting Good Luck Nursing Home, Inc., 636 F.2d at 577)).

III.   DISCUSSION

       Defendants argue that as a part of determining whether the State Department mistakenly

deposited annuity payments into Lorna Foo’s estate or into Plaintiff’s bank account, the court

should have also considered “to whom” the annuity payments were addressed. (Defs. Mot. at 1–

2). Defendants argue that such consideration would clarify “that because the funds were

designated to Lorna Foo after her death, they would have become payments to the estate of

Lorna Foo, making Plaintiff ineligible to seek a waiver of the recovery of those funds.” (Id. at

6).

       The court finds that as a threshold matter, Defendants have failed to clear the “high bar”

of demonstrating “extraordinary circumstances” warranting relief under Rule 60(b)(6). See

Kramer, 481 F.3d at 792 (“In short, plaintiffs must clear a very high bar to obtain relief under

Rule 60(b)(6).”). Defendants must show that, absent relief, “inequity or hardship” would occur.



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Twelve John Does, 841 F.2d at 1140. Rather than informing the court of a tangible, definite

hardship they will face absent a ruling in their favor, Defendants make blanket assertions

regarding the impact of the court’s decision. Specifically, they argue that as a result of the

court’s decision, “individuals who are not the intended beneficiaries of government funds can

claim ownership of those funds simply by the luck of being named on a joint account with the

intended beneficiaries.” (Defs. Mot. at 3). Defendants also argue that the court’s decision

“appears to support the proposition that anyone with an interest in an account can begin claiming

legal ownership of funds disbursed into that account after the designated beneficiary’s death and

made payable to the designated beneficiary despite the fact that they were never an intended

recipient.” (Id. at 3–4 (emphasis in original)). The State Department fails to present any

arguments regarding the hardship the court’s decision—whether or not it has the sweeping effect

Defendants claim—will cause the State Department specifically. Absent a showing of “inequity

or hardship,” Defendants are not entitled to relief under the “sparingly used” Rule 60(b)(6).

       Moreover, Defendants’ speculation regarding the consequences of the court’s decision is

unfounded. The question before the court was whether the FSGB violated the APA in finding

that Plaintiff’s failure to proffer substantial evidence that the annuity payments were not made to

her mother’s estate rendered her ineligible to request a waiver. The court found that the FSGB

did violate the APA, and that in this particular case, under Hawaiian law, Plaintiff provided

substantial evidence that the annuity overpayments were being paid into her bank account, not

her mother’s estate, and that she was therefore entitled to a waiver determination under 22

U.S.C. § 4047(d). The court did not find, as Defendants suggest, that: (1) in all instances in

which government funds are deposited into a joint account, a joint owner can claim entitlement

to any overpayments; or even that (2) in this specific case, Plaintiff is entitled to the annuity



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overpayments. Therefore, the court’s decision does not inevitably give rise to the proposition

that all unintended beneficiaries of government funds with an interest in an account are entitled

to overpayments, but rather that Plaintiff, in this particular case and under 22 U.S.C. § 4047(d), is

entitled to a waiver determination regarding the overpayments.

       Indeed, the court remanded the case to the FSGB “for consideration of the merits of

Plaintiff’s waiver request.” (Mem. Op. at 13 (emphasis added)). Pursuant to 22 U.S.C. §

4047(d), the FSGB must determine whether Plaintiff is “without fault” for the overpayments and

whether “recovery [of the overpayments] would be against equity and good conscience or

administratively infeasible.” 22 U.S.C. § 4047(d). Thus, even a finding in Plaintiff’s favor

under 22 U.S.C. § 4047(d) would not necessarily mean that Plaintiff was entitled to the

overpayments; rather, it would indicate that the State Department’s recovery of the

overpayments would be against equity and good conscience or administratively infeasible. The

court’s decision therefore does not have the sweeping effect Defendants claim, and they cannot

demonstrate “extraordinary circumstances” warranting relief under Rule 60(b)(6).

       In addition to failing to show the “extraordinary circumstances” necessary for relief under

Rule 60(b)(6), Defendants also offer no valid reason for the court to reconsider its prior decision.

See Murray v. District of Columbia, 52 F.3d 353, 355 (D.C. Cir. 1995) (“[A] Rule 60(b) motion

will not be granted unless the movant ‘can demonstrate a meritorious claim or defense.’”)

(quoting Lepkowski v. U.S. Dep’t of Treasury, 804 F.2d 1310, 1314 (D.C. Cir. 1986)). The court

based its decision on (1) the fact that the FSGB improperly applied a higher standard than

“substantial evidence,” and (2) the fact that under Hawaiian law, Plaintiff became the owner of

the bank account upon her mother’s death. (See Mem. Op. at 12). Instead of addressing these

findings, Defendants argue—for the first time—that the payments deposited into the First



                                                 5
Hawaiian bank account were “erroneous payments,” not “overpayments,” and therefore Plaintiff

is not entitled to a waiver determination. (Defs. Mot. at 6).

       The court finds Defendants’ argument unavailing. First, as a procedural matter,

Defendants cannot raise their “erroneous payments” versus “overpayments” argument for the

first time in a motion for reconsideration. See Carter v. Washington Metro. Area Transit Auth.,

503 F.3d 143, 145 n.2 (D.C. Cir. 2007) (finding that an argument was improperly raised when

first raised in the movant’s motion for reconsideration); see also Cincinnati Ins. Co. v. All

Plumbing, Inc. Serv., Parts Installation, 64 F. Supp. 3d 69, 78 (D.D.C. 2014) (“A motion for

reconsideration cannot be used as ‘a vehicle for presenting theories or arguments that could have

been advanced earlier.’”) (quoting Estate of Gaither ex rel. Gaither v. District of Columbia, 771

F. Supp. 2d 5, 10 (D.D.C. 2011)).

       Since May 2012, when the State Department first informed Plaintiff of its error,

Defendants have referred to the mistakenly-paid annuity payments as “overpayments.” In its

May 2012 letter, for example, the State Department informed Plaintiff that “the late Lorna Foo’s

Foreign Service Survivor Annuity account revealed an overpayment.” (ECF No. 15-2 (emphasis

added)). The State Department’s March 2014 letter informed Plaintiff that her waiver request

was denied because “[t]he Department is prohibited from waiving collection of an overpayment

to an estate under 22 C.F.R. 17.7(a)(2).” (ECF No. 15-4 at 3 (emphasis added)). Indeed,

Defendants first used the phrase “erroneous payments” in their Reply in support of their motion

for summary judgment. (See generally ECF No. 20). Even then, however, Defendants did not

argue that there was a difference between “erroneous payments” and “overpayments.”

Defendants cannot now, for the first time, argue that the payments were not “overpayments” for

purposes of 22 U.S.C. § 4047(d).



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       Second, even if Defendants could properly raise the argument at this stage of the

proceedings, it is unpersuasive. Defendants primarily rely on two Ninth Circuit decisions for

their argument: Powderly v. Schweiker, 704 F.2d 1092 (9th Cir. 1983), and Thomas v. Bowen,

791 F.2d 730 (9th Cir. 1986). In Powderly, the Court found that the erroneous benefits check

paid to the plaintiff’s deceased husband did not constitute an overpayment under the Social

Security Act, and therefore the plaintiff was not entitled to a hearing to determine her repayment

obligations. 704 F.2d at 1096. Relying on the decision in Powderly, the Court in Thomas found

that social security benefits payments mistakenly deposited into widows’ bank accounts—i.e.,

unintended beneficiaries of the benefits—were erroneous payments, not overpayments, and that

“appellees were therefore not entitled to waiver under section 404(b).” 791 F.2d at 734.

       Defendants suggest that these two cases support their argument that because the annuity

payments were addressed to Lorna Foo, they became a part of her estate, rendering Plaintiff

ineligible to seek a waiver of repayment. (Defs. Mot. at 6). The court disagrees. In Thomas and

Powderly, the Ninth Circuit did not address the issue of whether the benefits payments at issue

were paid to an estate, and—unlike this case—did not interpret a regulation that explicitly

prohibited waivers if an overpayment was made to an estate. 22 C.F.R. § 17.7(a)(2). Indeed,

aside from quoting the language in the governing statute, neither case mentions the term “estate”

at all. See Powderly, 704 F.2d at 1096 (quoting 42 U.S.C. § 404 of the Social Security Act).

       Instead, the Powderly and Thomas courts addressed a very specific question, which is not

before this court: whether the social security payments at issue constituted overpayments under

the Social Security Act. In finding that they did not, the Powderly court relied, in part, on a

Social Security Act claims manual, which provided specific guidance as to what constituted an

overpayment under the Social Security Act. 704 F.2d at 1096–97. Defendants, although



                                                  7
arguing, like in Powderly, that the payments at issue here are “erroneous payments” and not

“overpayments,” have not pointed to a similar regulation or provision in the Foreign Services

Act context. Accordingly, these Ninth Circuit decisions—which address a different question

based on different regulations—do not aid this court in determining whether the annuity

payments at issue in this case were paid into an estate, and the court can discern no reason in

their holdings to reconsider its earlier decision.

       The court finds Defendants’ reliance on Rossini v. Office of Pers. Mgmt., 101 M.S.P.R.

289 (2006), similarly unpersuasive. There, the Merit Systems Protection Board noted that

annuity payments deposited into the plaintiff’s deceased mother’s bank account were paid into

her mother’s estate. 101 M.S.P.R. at 295. In this case, however, the payments were deposited

into a joint bank account, to which Plaintiff had the right of survivorship under Hawaiian law,

not into an account solely owned by Plaintiff’s mother, and therefore they were not deposited

into an estate. Thus, Rossini, like Thomas and Powderly, does not convince the court of the need

to reconsider its decision that the annuity payments were not deposited into an estate.

IV.    CONCLUSION

       For the foregoing reasons, Defendants’ motion for reconsideration will be DENIED. The

court will remand the case to the FSGB for consideration of the merits of Plaintiff’s waiver

request. A corresponding Order will issue separately.


Date: January 19, 2018

                                               Tanya S. Chutkan
                                               TANYA S. CHUTKAN
                                               United States District Judge 




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