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THIS FINAL ORDER IS NONPRECEDENTIAL 1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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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.”).
6
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.
M. Carmen Luna v. Office of Personnel Management
Combined Opinion