Terwilliger v. Merit Systems Protection Board

NOTE: This disposition is nonprecedential.

United States Court of Appeals
for the Federal Circuit
______________________

MARSHANN TERWILLIGER,
Petitioner

v.

MERIT SYSTEMS PROTECTION BOARD,
Respondent
______________________

2015-3203
______________________

Petition for review of the Merit Systems Protection
Board in No. AT-3443-15-0037-I-1.
______________________

Decided: February 4, 2016
______________________

MARSHANN TERWILLIGER, Moncks Corner, SC, pro se.

KATRINA LEDERER, Merit Systems Protection Board,
Washington, DC, for respondent. Also represented by
BRYAN G. POLISUK.
______________________

Before O’MALLEY, REYNA, and CHEN, Circuit Judges.
2 TERWILLIGER v. MSPB

PER CURIAM.
Appellant Marshann Terwilliger (“Terwilliger”) ap-
peals the final decision of the Merit Systems Protection
Board (“Board”) dismissing her appeal for lack of jurisdic-
tion. Terwilliger v. Dep’t of the Army, No. AT-3443-15-
0037-I-1, 2015 MSPB LEXIS 5904, *6 (M.S.P.B. July 6,
2015). For the reasons below, we affirm.
BACKGROUND
Terwilliger resigned from her position at the Depart-
ment of the Army (“Agency”) on June 20, 1991, after
almost thirteen years of service. Following her resigna-
tion, she obtained a refund of her retirement deductions
from the Office of Personnel Management (“OPM”). The
Agency rehired Terwilliger on October 4, 2004. Terwil-
liger filed an application to redeposit the retirement
deductions previously refunded to her and began repaying
those contributions. In 2006, she received Benefit Esti-
mates from the Agency erroneously indicating that she
had been given credit for the period of service covered by
her retirement deductions. She was then advised by OPM
and the Agency that it was in her best interest to take an
actuarial reduction of her unpaid retirement deductions
when she retired, rather than continue to repay the
deductions with interest. Terwilliger heeded the advice
and stopped making payments.
Terwilliger was later informed that the earlier advice
she received was erroneous and that she would not actual-
ly receive credit for the period of service covered by her
refunded retirement deductions unless she repaid those
deductions with interest prior to retirement. What fol-
lowed is a series of claims and appeals by Terwilliger
regarding her repayment of the refunded retirement
deductions.
Terwilliger requested that OPM waive the interest on
her repayment, arguing that a substantial portion of that
TERWILLIGER v. MSPB 3

interest had accrued as a result of the incorrect advice she
had received. OPM denied that request on June 27, 2012.
On September 11, 2012, OPM issued another decision
confirming that Terwilliger would have to redeposit her
contributions before retiring to receive credit in her
annuity for the period of service covered by the refunded
decisions. After OPM issued a final decision denying
Terwilliger’s request for reconsideration of its June 27,
2012 decision, Terwilliger appealed to the Board. On
June 6, 2013, the Board affirmed OPM’s reconsideration
decision. The Board noted, however, that Terwilliger also
sought permission to repay the redeposit and interest via
the actuarial reduction she earlier had been advised to
employ and remanded her claim to OPM directing it to
consider that issue. On September 23, 2013, OPM issued
a new reconsideration decision once more denying the
appellant’s request to pay the balance of her redeposit
and interest by actuarial reduction.
Terwilliger then filed a petition for review of the
Board’s June 6, 2013 decision. In an August 20, 2014
decision, the Board denied the petition, finding no error
by the administrative judge. The Board found that the
payment of interest on a redeposit of retirement deduc-
tions is a statutory requirement under 5 U.S.C. §
8334(d)(1). The Board also determined that, due to the
Appropriations Clause of the Constitution, it could not
waive the requirement based on the fact that she had
received faulty advice or on other equitable considera-
tions. See Office of Pers. Mgmt. v. Richmond, 496 U.S.
414, 422 (1990) (holding that the government cannot be
forced to pay monetary benefits to an applicant who is
statutorily ineligible for the benefits, even if the applicant
became ineligible due to reliance on the misadvice of a
federal employee).
The Board also forwarded the petition for review to
the Atlanta Regional Office for docketing as an appeal of
OPM’s September 23, 2013 reconsideration decision. On
4 TERWILLIGER v. MSPB

February 10, 2015, the Atlanta Regional Office affirmed
OPM’s decision, citing 5 U.S.C. § 8334(d)(1).
Finally, Terwilliger filed an appeal with the Atlanta
Regional Office seeking to require the Agency to pay the
redeposit of retirement contributions and interest to the
OPM on her behalf. Terwilliger, 2015 MSPB LEXIS 5904,
at *1. After providing the parties with notice of a ques-
tion as to the Board’s jurisdiction and providing them an
opportunity to submit argument and evidence, the Re-
gional Office of the Board dismissed the appeal for lack of
jurisdiction. The Board noted that the Agency did not
dispute the underlying facts and admits that its misad-
vice created this problem. Nevertheless, the Board found
no law, rule, or regulation permitting Terwilliger to bring
the appeal against the Agency. This appeal arises from
that decision.
DISCUSSION
The court must affirm the decision of the Board un-
less it is: (1) arbitrary, capricious, an abuse of discretion
or otherwise not in accordance with law; (2) obtained
without following the procedures required by law; or (3)
unsupported by substantial evidence. 5 U.S.C. § 7703(c);
Forest v. Merit Sys. Prot. Bd., 47 F.3d 409, 410 (Fed. Cir.
1995). We review whether the Board has jurisdiction de
novo as a question of law, but review underlying factual
findings for substantial evidence. Johnston v. Merit Sys.
Prot. Bd., 518 F.3d 905, 909 (Fed. Cir. 2008); Bolton v.
Merit Sys. Prot. Bd., 154 F.3d 1313, 1316 (Fed. Cir. 1998).
The Board’s jurisdiction is not plenary, but rather is
limited to matters over which it has been granted juris-
diction by law, rule, or regulation. Van Wersch v. Dep’t of
Health and Human Serv., 197 F.3d 1144, 1147 (Fed. Cir.
1999); Maddox v. Merit Sys. Prot. Bd., 759 F.2d 9, 10
(Fed. Cir. 1985). The appellant bears the burden of
establishing the Board’s jurisdiction by a preponderance
TERWILLIGER v. MSPB 5

of the evidence. 5 C.F.R. § 1201.56(b)(2)(i) (2015); Fields
v. Dep’t of Justice, 452 F.3d 1297, 1302 (Fed. Cir. 2006).
On appeal, Terwilliger has not alleged a single error,
legal or factual, in the Board’s decision rejecting her
request for the Agency to redeposit her missing retire-
ment contributions to OPM on her behalf. In fact, her
informal brief concedes that the Board has not incorrectly
decided or failed to take into account any facts, applied
incorrect law, or failed to consider important grounds for
relief. Rather, Terwilliger simply implores us to “make a
decision on [her] hardship.”
We are sympathetic to appellant’s plight. She relied
on advice from her employing agency and OPM to her
detriment. Nevertheless, we are not aware of any legal
authority that permits Terwilliger to bring the appeal of
her claim against the Agency to the Board. The Board
has jurisdiction over appeals of adverse actions, which
include removals or terminations of employment after
completion of probationary or other initial service periods,
involuntary resignations or retirements, reductions in
grade or pay, suspensions for more than 14 days, or
furloughs for 30 days or less for cause that will promote
the efficiency of the service. 5 U.S.C. §§ 7511-7514; 5
C.F.R. 1201.3(a)(1). The Board also has jurisdiction to
review OPM’s final reconsideration decisions of retire-
ment and annuity claims. See 5 U.S.C. § 8461(e)(1).
Terwilliger does not allege that her most recent appeal
falls within any of these categories. Notably, the decision
on appeal is not the August 20, 2014 decision on waiver of
interest or the February 10, 2015 decision on the actuari-
al reduction issue, but rather is the July 6, 2015 decision
on Terwilliger’s request that the Agency pay OPM on
Terwilliger’s behalf. We further note that, at this point,
Terwilliger has had her requests as to the underlying
redeposit requirement heard no less than six times.
Despite her understandable frustration, Terwilliger has
6 TERWILLIGER v. MSPB

not met her burden to establish that the Board erred in
dismissing her appeal. We, therefore, affirm.
AFFIRMED