                         UNITED STATES OF AMERICA
                      MERIT SYSTEMS PROTECTION BOARD
                                      2015 MSPB 63

                            Docket No. DE-0845-15-0148-I-1

                                   Sandra K. Miller,
                                       Appellant,
                                            v.
                          Office of Personnel Management,
                                         Agency.
                                    December 16, 2015

           Christine Wolfe, Topeka, Kansas, for the appellant.

           Patrick Jennings, Washington, D.C., for the agency.

                                        BEFORE

                            Susan Tsui Grundmann, Chairman
                               Mark A. Robbins, Member



                                OPINION AND ORDER

¶1         The appellant has filed a petition for review of the initial decision, which
     dismissed her appeal for lack of jurisdiction. For the reasons discussed below,
     we DENY the appellant’s petition for review, VACATE the initial decision, and
     DISMISS the appeal for lack of jurisdiction for the reasons set forth in this
     Opinion and Order.

                                     BACKGROUND
¶2         The appellant’s mother received Civil Service Retirement System (CSRS)
     annuity payments from the Office of Personnel Management (OPM) until her
     death on December 29, 2011. Initial Appeal File (IAF), Tab 1 at 8. OPM asserts
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     that, following her death, it erroneously continued to send annuity payments
     totaling $2,433.40 to the appellant’s mother at the assisted living center where
     she had resided. Id. According to the appellant, after her mother’s death, she
     received a check in the amount of $2,212.97 from the assisted living center on
     behalf of her mother’s estate. Id. at 7. She asserts that she returned the check
     with a letter indicating that she believed the check consisted partly of funds from
     OPM that were not the property of her mother’s estate, but rather were properly
     due to the U.S. Department of the Treasury. Id. at 7, 14. The appellant later
     received a new check from the assisted living center in the amount of $1,215.82.
     Id. at 7; Petition for Review (PFR) File, Tab 6 at 9. The appellant cashed the
     check and divided the proceeds among herself and the other two heirs of her
     mother’s estate, with the appellant receiving $607.91. IAF, Tab 1 at 7, 12-13.
¶3         OPM subsequently informed the appellant that she was overpaid $1,215.82 1
     in CSRS annuity benefits and that it intended to collect the overpayment. Id.
     at 8. The appellant requested reconsideration, and on December 9, 2014, OPM
     issued a reconsideration decision affirming its initial decision and denying the
     appellant’s request for a waiver of the overpayment collection.           Id. at 8-11.
     OPM’s reconsideration decision advised the appellant that she could either pay
     the full amount of $1,215.82 in one lump sum or complete the enclosed
     repayment agreement and repay that amount, plus 1% interest, in 48 monthly
     installments of $25.00 and one final installment of $15.82. Id. at 10.
¶4         The appellant filed the instant appeal of OPM’s December 9, 2014
     reconsideration decision. IAF, Tab 1.       In response, OPM asserted that it was
     rescinding its reconsideration decision because it erroneously gave the appellant
     notice of Board appeal rights. IAF, Tab 10 at 4. OPM also moved to dismiss the
     appeal on the basis that, even absent its rescission, the Board lacks jurisdiction

     1
       OPM asserts that it recovered $1,217.40, the remainder of the overpaid funds, through
     the U.S. Department of the Treasury. IAF, Tab 1 at 8.
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     because OPM had not issued a decision affecting the appellant’s rights under the
     CSRS, but instead was attempting to collect an improper payment constituting a
     debt collectable under 5 U.S.C. title 31.    Id. at 4-5.   The administrative judge
     issued an initial decision finding that OPM’s rescission of its reconsideration
     decision divested the Board of jurisdiction and therefore dismissed the appeal for
     lack of jurisdiction. IAF, Tab 11, Initial Decision.
¶5         The appellant filed a petition for review of the initial decision in which she
     asserts that the administrative judge improperly dismissed the appeal because
     OPM did not rescind its decision entirely, did not return her to the status quo
     ante, and is continuing to collect the overpayment. PFR File, Tab 1 at 5-6. The
     appellant further asserts that she did not receive adequate jurisdictional notice or
     an opportunity to respond to the agency’s jurisdictional arguments.        Id. at 7.
     Lastly, the appellant argues that recovery would cause her financial hardship and
     asserts that the Board has jurisdiction over a request that recovery of an annuity
     overpayment be waived even absent jurisdiction over the propriety of the
     overpayment itself. Id. at 9. OPM opposed the appellant’s petition. PFR File,
     Tab 4 at 4.
¶6         Because the administrative judge dismissed the appeal on the basis of
     OPM’s rescission of its reconsideration decision and the appellant did not have an
     opportunity to develop the record on the relevant jurisdictional issue, the Board
     issued a show cause order permitting the appellant an opportunity to submit
     evidence and argument establishing that OPM’s decision to collect the alleged
     debt from her constitutes “an administrative action or order affecting the rights or
     interests of an individual or of the United States” under the CSRS. PFR File,
     Tab 5. In response, the appellant argues that a factual dispute over the existence
     and amount of the overpayments that OPM purports to collect under the authority
     of the CSRS affects the rights and interests of the parties and OPM’s
     reconsideration decision constitutes an “administrative action or order” under
     5 U.S.C. § 8347(d)(1). PFR File, Tab 6 at 4-5.
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                                        ANALYSIS
¶7         The Board’s jurisdiction is limited to those matters over which it has been
     given jurisdiction by law, rule, or regulation.        Maddox v. Merit Systems
     Protection Board, 759 F.2d 9, 10 (Fed. Cir. 1985).        The appellant bears the
     burden of proving, by a preponderance of the evidence, 2 that the Board has
     jurisdiction over her appeal.    5 C.F.R. § 1201.56(b)(2)(i)(A).      Generally, the
     Board has jurisdiction over OPM’s determinations affecting an appellant’s rights
     or interests under the CSRS only after OPM has issued a reconsideration
     decision, and OPM’s complete rescission of its reconsideration decision divests
     the Board of jurisdiction over the appeal. See, e.g., Morin v. Office of Personnel
     Management, 107 M.S.P.R. 534, ¶ 8 (2007), aff’d, 287 F. App’x 864 (Fed. Cir.
     2008). However, the Board has held that, if OPM rescinds its reconsideration
     decision after the appellant files a Board appeal and it is apparent that OPM
     does not intend to issue a new decision, the Board retains jurisdiction to
     adjudicate the merits.     See Triplett v. Office of Personnel Management,
     100 M.S.P.R. 571, ¶¶ 5-7 (2005).
¶8         Here, OPM has not asserted that it intends to issue a new reconsideration
     decision, and its claim in rescinding its reconsideration decision that this is a
     collection matter outside of the Board’s jurisdiction suggests that it does not
     intend to do so. IAF, Tab 10 at 4-5. Therefore, we find that OPM’s rescission of
     its reconsideration decision did not divest the Board of jurisdiction over this
     appeal. However, we find that the Board nonetheless lacks jurisdiction over this
     appeal under 5 U.S.C. § 8347(d)(1) for the reasons set forth below.
¶9         The Board’s jurisdiction concerning retirement matters involving the CSRS
     is defined at 5 U.S.C. § 8347(d)(1), which provides that “an administrative action


     2
       Preponderance of the evidence is the degree of relevant evidence that a reasonable
     person, considering the record as a whole, would accept as sufficient to find that a
     contested fact is more likely to be true than untrue. 5 C.F.R. § 1201.4(q).
                                                                                          5

      or order affecting the rights or interests of an individual or of the United States
      under this subchapter [(i.e., the CSRS)] may be appealed to the Merit Systems
      Protection Board under procedures prescribed by the Board.” We find that the
      appellant has not established that OPM’s decision to collect the debt from her
      constitutes “an administrative action or order affecting the rights or interests of
      an individual or of the United States” under the CSRS. The appellant has not
      identified, and we are otherwise unaware of, any right or interest she has to the
      funds under the CSRS.       The appellant was not the annuitant or a designated
      survivor annuitant with obvious rights or interests under the applicable
      provisions. See 5 U.S.C. § 8331(9)-(11). The appellant also did not receive the
      funds either directly, as a representative of her mother’s estate, or as a third party
      with rights under the applicable provisions. See 5 U.S.C. §§ 8341, 8345(e), (j).
      Although the appellant argues generally that “a factual dispute over the existence
      and amount of overpayment affects the rights and interests of the parties,” she
      has not identified any right she has to the funds under the CSRS. PFR File, Tab 6
      at 4.   Because the appellant received the funds via a check payable to her
      mother’s estate, her claim to the funds appears to derive from state probate or
      intestacy laws. See Rossini v. Office of Personnel Management, 101 M.S.P.R.
      289, ¶ 11 (2006).
¶10           Similarly, OPM has offered no argument or evidence to establish that its
      authority to collect this debt from the appellant, or to consider the appellant’s
      request for a waiver, is derived from the rights or interests of the United States
      under the CSRS. Thus, although the appellant may have incurred a debt to the
      Federal Government as a result of her receipt of funds from her mother’s estate,
      there are provisions of law other than the retirement statutes that grant the head
      of an executive agency the right to try to collect such a debt. See 31 U.S.C.
      § 3711(a) (stating the head of an executive agency “shall try to collect a claim of
      the United States Government for money or property arising out of the activities
      of . . . the agency”); Rossini, 101 M.S.P.R. 289, ¶ 13. Accordingly, we find that
                                                                                         6

      the Board lacks jurisdiction over the appellant’s appeal of OPM’s decision
      regarding the existence and amount of the alleged debt.
¶11         On review, the appellant argues that the Board has jurisdiction to review
      OPM’s denial of her request for a waiver of recovery of the overpayment, even
      absent Board jurisdiction over OPM’s decision regarding the existence and
      amount of the alleged debt. PFR File, Tab 6 at 6-7. Under 5 U.S.C. § 8346(b),
      recovery of payments erroneously made under the CSRS shall be waived “when,
      in the judgment of [OPM], the individual is without fault and recovery would be
      against equity and good conscience.”       The Board has jurisdiction to review
      OPM’s final decisions on requests that recovery of annuity overpayments be
      waived. See Dubin v. Office of Personnel Management, 38 M.S.P.R. 437, 439
      (1988); 5 C.F.R. § 831.1304(a)(8), (c)(2). The basis for the Board’s jurisdiction
      to review OPM’s decisions on requests for a waiver of recovery of overpayments,
      like the Board’s jurisdiction concerning retirement matters in general, derives
      from an appellant’s rights or interests under Federal retirement law. See 5 U.S.C.
      § 8347(d)(1); Dubin, 38 M.S.P.R. at 438-39; 5 C.F.R. § 1201.3(a)(2). Thus, we
      find that, absent a showing of any right or interest the appellant has to the annuity
      overpayments under the CSRS, the Board lacks jurisdiction to consider her
      request for a waiver of the overpayment.
¶12         Our decision is consistent with the Board’s prior analysis in Rossini,
      101 M.S.P.R. 289, ¶¶ 10-14, in which the Board questioned whether it had
      jurisdiction to consider an appellant’s request for a waiver under similar
      circumstances. In Rossini, the appellant requested a waiver of collection of an
      overpayment she received as a result of annuity payments OPM erroneously made
      to her deceased mother’s bank account following her mother’s death.
      101 M.S.P.R. 289, ¶¶ 2-3. In remanding the appeal for further development of
      the jurisdictional issue, the Board stated that it was not clear that the waiver
      provision in 5 U.S.C. § 8346(b) applied to the appellant, whose claim to the
      overpaid funds did not appear to have derived from any right or interest she had
                                                                                        7

      under Federal retirement statutes, but rather from state probate or intestacy laws.
      Rossini, 101 M.S.P.R. 289, ¶¶ 12-13. The Board also noted that, although it had
      previously considered a widow’s request for a waiver of annuity overpayments
      made to her deceased husband’s bank account in Martinez v. Office of Personnel
      Management, 26 M.S.P.R. 315, 316 (1985), it did so without identifying any right
      or interest under the CSRS that the widow may have had regarding the
      overpayments.      Rossini, 101 M.S.P.R. 289, ¶ 12.        Thus, Martinez is not
      dispositive as to the jurisdictional issue presented here, and we decline to follow
      its analysis.
¶13          We further find that OPM’s particular collection effort in this case does not
      affect the appellant’s rights or interests under the CSRS or otherwise provide a
      basis for jurisdiction. The appellant is not receiving an annuity from OPM, and
      OPM is not seeking to collect the appellant’s debt through an administrative
      offset to some other recurring payments to the appellant. Cf. Alexander v. Office
      of Personnel Management, 114 M.S.P.R. 122, ¶¶ 7-12 (2010) (holding that the
      Board had the authority to adjust an OPM-set repayment schedule to collect an
      annuity overpayment through an administrative offset to the appellant’s recurring
      payment of benefits from the Office of Workers’ Compensation). The appellant
      asserts that her only source of income is Supplemental Security Income (SSI)
      benefits, PFR File, Tab 6 at 6, but there is no indication in the record that OPM is
      seeking to offset the appellant’s SSI benefits to recover the overpayment. Thus,
      we find that OPM’s collection effort is not a matter affecting the appellant’s
      rights or interests under the CSRS and, as such, is outside of the
      Board’s jurisdiction.
¶14          As the appellant argues, the Board has considered waiver requests in
      certain cases where the underlying overpayment errors were not reviewable by
      the Board; but, unlike the appellant, the individuals bringing such waiver requests
      were annuitants who had clear rights and interests to annuity payments under the
      CSRS sufficient to bring the waiver request within the Board’s jurisdiction. PFR
                                                                                        8

      File, Tab 1 at 9, Tab 6 at 6-7; see, e.g., McIntosh v. Office of Personnel
      Management, 104 M.S.P.R. 544, ¶¶ 2, 6-7 (2007) (finding that the Board had
      jurisdiction to review an annuitant’s request for a waiver of overpayment
      resulting from errors in deducting life insurance benefits despite the fact that the
      Board lacked jurisdiction to review OPM’s determination that it failed to
      withhold from the annuity the correct amount of life insurance premiums); Miller
      v. Office of Personnel Management, 99 M.S.P.R. 104, ¶¶ 12-13 (2005) (same),
      aff’d, 449 F.3d 1374 (Fed. Cir. 2006); Mitchell v. Office of Personnel
      Management, 97 M.S.P.R. 566, ¶¶ 3, 12 (2004) (same); Lee v. Office of Personnel
      Management, 32 M.S.P.R. 149, 152-54 (1987) (finding that the Board lacked
      jurisdiction to determine whether the annuitant was liable for health benefits
      costs that OPM had failed to deduct from his annuity payments, but reviewing the
      annuitant’s entitlement to a waiver of recovery of the resulting alleged
      overpayment). Accordingly, we find that the Board lacks jurisdiction to consider
      this appeal.

                                           ORDER
¶15         This is the final decision of the Merit Systems Protection Board in this
      appeal. Title 5 of the Code of Federal Regulations, section 1201.113(c) (5 C.F.R.
      § 1201.113(c)).

                        NOTICE TO THE APPELLANT REGARDING
                           YOUR FURTHER REVIEW RIGHTS
            You have the right to request review of this final decision by the U.S.
      Court of Appeals for the Federal Circuit. You must submit your request to the
      court at the following address:
                                   U.S. Court of Appeals
                                   for the Federal Circuit
                                  717 Madison Place, N.W.
                                   Washington, DC 20439
                                                                                  9

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
title 5 of the U.S. 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 U.S. 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 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
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.
