Petition for review of the Merit Systems Protection Board in Case No. DC844E090636-I-1.
NOTE: This disposition is nonprecedential.
Before RADER, Chief Judge, LINN and O'MALLEY, Circuit Judges.
Mary F. Rodriguez ("Rodriquez") appeals the final decision of the Merit Systems Protection Board ("the Board") affirming: (1) the Office of Personnel Management's ("OPM") decision to terminate her disability retirement annuity on grounds that she was restored to earning capacity; and (2) OPM's decision that she was overpaid $7,430.88 in annuity benefits, and was required to repay that amount. Rodriguez v. Office of Pers. Mgmt., No. DC-844E-09-0636-I-1, 2010 MSPB LEXIS 32, *14 (Jan. 6, 2010) ("Initial Decision"); Rodriguez v. Office of Pers. Mgmt., 2010 MSPB LEXIS 5709 (Sept. 30, 2010) ("Final Decision"). For the reasons explained below, we affirm.
From September 13, 1998 until September 30, 2006, Rodriguez worked as a Staff Nurse for the Department of Veteran's Affairs ("DVA") in Durham, North Carolina. Although she initially worked as a full-time employee, beginning in April 2000, Rodriguez reduced her schedule to 36 hours per week. On August 22, 2004, she decreased her work schedule to 30 hours per week. Finally, from October 31, 2004 until her retirement on September 30, 2006, Rodriguez worked a part-time schedule of 24 hours per week.
Rodriguez submitted an application for a disability retirement annuity under the Federal Employees Retirement System ("FERS"). By letter dated June 14, 2006, OPM approved her application, and, on September 30, 2006, Rodriguez retired under FERS due to disability.
Under FERS, an employee who retires due to disability can work in the private sector while receiving a dis- ability annuity benefit, as long as the annuitant's income does not exceed "80 percent of the current rate of pay of the position occupied immediately before retirement." 5 U.S.C. § 8455(a)(2). Although the record is not clear as to its source, it is undisputed that Rodriguez's income for 2006 was $45,479.
On October 31, 2007, OPM sent Rodriguez a letter notifying her that she had received an overpayment of annuity benefits. The letter explained that her earnings in 2006 exceeded 80% of the current salary for the position she held prior to retirement. OPM indicated that she was restored to earning capacity effective July 1, 2007, and therefore was not entitled to the benefits she received between July 1, 2007 and September 30, 2007. This resulted in an overpayment of $7,492, which, after deduction of the life insurance premiums recoverable from other sources, resulted in a net overpayment of $7,430.88. As the government concedes, this initial correspondence regarding overpayment failed to advise Rodriguez of her right to seek reconsideration and her right to seek a waiver.
By letter dated November 9, 2007, OPM notified Rodriguez that she was not entitled to continued disability annuity payments because she was restored to earning capacity. The letter explained that, under FERS, "a disability annuitant who is under age 60 and earns, in any calendar year, at least 80 percent of the current rate of basic pay for the position occupied immediately before retirement is considered to be restored to earning capacity." Because Rodriguez's income for 2006 -- $45,479 -- exceeded 80% of rate of basic pay on December 31, 2006 for the position she occupied immediately prior to retirement, she was considered restored to earning capacity and was therefore no longer entitled to receive a disability annuity benefit, "even though [her] medical condition may not have changed."
On March 14, 2008, Rodriguez, through counsel, sought reconsideration of OPM's initial decision. In the request for reconsideration, Rodriguez argued that OPM incorrectly compared her post-retirement earnings to the basic rate of pay for a part-time position when, in fact, the "position she retired from was staff nurse, not staff nurse (part-time)." Rodriguez explained that she reduced her schedule to part-time, and eventually had to retire, because she suffers from erosive osteoarthritis in her hands. As such, she argued, OPM should have compared her post-retirement earnings "to the actual pay for the full-time position she would have occupied if her medical condition, which forced her into retirement, had not forced her first to go to part time and then to retire." According to Rodriguez, this method of calculation would be "consistent with the policy of the Rehabilitation Act that the employee and the government work together to try to keep the employee at work."
OPM subsequently issued a second notice informing Rodriguez that she received an overpayment of annuity benefits. This time, OPM explained that she had a right to request reconsideration of the overpayment decision or waiver of repayment. Enclosed with the letter was:
(1) information regarding the process for requesting a waiver due to financial hardship; (2) a form document entitled "Request for Reconsideration, Waiver, Compromise, Deferral or Repayment Agreement;" and (3) a Financial Resources Questionnaire ("FRQ"), which, if completed, would be used to assess her ability to make repayment. On December 10, 2008, Rodriguez completed the "Request for Reconsideration" form indicating that she sought reconsideration of the overpayment decision.
She did not request a waiver, submit a FRQ, or otherwise indicate that she was unable to make repayment.
On June 1, 2009, OPM issued a reconsideration decision affirming its decision to terminate Rodriguez's disability retirement annuity. In the decision, OPM explained that, as of December 31, 2006, the base salary for a DVA nurse at grade and step AD-02 was $73,800. Because Rodriguez worked 24 hours per week, OPM prorated the full-time base salary of $73,800 to reflect her part-time status, and concluded that her basic pay as of December 31, 2006 would have been $44,280 (60% of $73,800). The statutory 80% limit, as of December 31, 2006, was $35,424 (80% of $44,280 is $35,424). Because Rodriguez's reported income for 2006 was $45,479, she earned more than the 80% limit, and her annuity should have terminated on June 30, 2007. See 5 CFR § 844.402(a)("The disability annuity will terminate on the June 30 after the end of the calendar year in which earning capacity is restored.").
On June 23, 2009, Rodriguez, through counsel, appealed the OPM's final decision to the Board. In her appeal, Rodriguez argued that OPM improperly used her "last salary at DVA to calculate the 80% restoration to earning capacity." According to Rodriguez, OPM "should have used the full salary of [her] regular ...