Amy Gavin v. Office of Personnel Management

N OTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
AMY GAVIN,
Petitioner
v.
OFFICE OF PERSONNEL MANAGEMENT,
Respondent
______________________
2024-2182
______________________
Petition for review of the Merit Systems Protection
Board in No. AT-0845-20-0812-I-1.
______________________
Decided: June 5, 2025
______________________
AMY G AVIN, Warner Robins, GA, pro se.
D ANIEL F ALKNOR , Commercial Litigation Branch,
Civil Division, United States Department of Justice,
Washington, DC, for respondent. Also represented by
BRIAN M. BOYNTON, ELIZABETH MARIE HOSFORD, P ATRICIA
M. MCCARTHY .
______________________
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GAVIN v. OPM 2
Before M OORE, Chief Judge, P ROST , Circuit Judge, and
HALL , District Judge.1
P ER CURIAM .
Amy Gavin petitions from a final decision of the Merit
Systems Protection Board (“Board”) affirming the Office of
Personnel Management’s (“OPM”) decision denying her
request for waiver from repayment of a Federal Employ-
ees’ Retirement System (“FERS”) benefit overpayment.
Gavin v. OPM, No. AT-0845-20-0812-I-1, 2024 WL
2956786, at *1 (M.S.P.B. June 11, 2024) (adopting the
initial decision, Gavin v. OPM, No. AT-0845-20-0812-I-1,
2020 MSPB LEXIS 4360 (M.S.P.B. Oct. 30, 2020) (“Deci-
sion”), as the Board’s final decision). For the reasons set
forth below, we affirm.
BACKGROUND
Ms. Gavin, a former employee of the United States Air
Force, applied for FERS disability retirement benefits in
August 2014. S.A. 22–23, 42.2 OPM granted her applica-
tion and informed her in a January 2015 letter that she
must apply for Social Security disability benefits. S.A. 47.
OPM explained that if the Social Security Administration
(“SSA”) “awards you monthly benefits, you must immedi-
ately notify [OPM] of the amount and the effective date of
the monthly benefit.” S.A. 47. The letter informed
Ms. Gavin that “[b]ecause the FERS disability benefit
must be reduced by 100 percent of any Social Security
benefit payable for 12 months, Social Security checks
1 Honorable Jennifer L. Hall, District Judge, United
States District Court for the District of Delaware, sitting
by designation.
2 “S.A.” refers to the supplemental appendix includ-
ed with the government’s informal brief.
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GAVIN v. OPM 3
should not be negotiated until the FERS benefit has been
reduced.” S.A. 48. OPM further stated that the “Social
Security checks will be needed to pay OPM for the reduc-
tion which should have been made in the FERS annuity.”
S.A. 48. In April 2015, OPM sent Ms. Gavin a second
letter explaining that “[i]f you are overpaid FERS disabil-
ity benefits because of receipt of Social Security disability
benefits, OPM will send you a notice of the amount of
overpayment,” and “[y]ou are legally required to repay
this money to OPM.” S.A. 50. OPM instructed Ms. Gavin
that “[i]f SSA sends you a retroactive payment, hold that
award until you receive a notice of the amount of your
overpayment from OPM, so that you have sufficient funds
to repay your duplicate payment.” S.A. 50.
On February 24, 2017, the SSA approved Ms. Gavin
for Social Security benefits. S.A. 31. About two months
later, on April 12, 2017, OPM sent a letter to Ms. Gavin
notifying her that it learned of her entitlement to Social
Security benefits and adjusted her FERS benefits accord-
ingly. S.A. 32. OPM informed her that she had been
overpaid in FERS benefits for the period October 2014
through March 2017, in light of her retroactive Social
Security benefits. S.A. 32. The letter also informed her
that OPM would “recover the overpayment ·in monthly
installments” from her FERS annuity. S.A. 32. The
letter’s accompanying enclosures provided additional
details, including specifying the total overpayment
amount to be collected ($52,186), the first installment
date (July 1, 2017), and the amount per installment
(ninety installments of $577.62 and a final installment of
$200.20). S.A. 33.
On April 15, 2017, Ms. Gavin requested waiver of
OPM’s recovery of the overpayment arguing that she had
not yet received any payment from SSA and thus had no
repayment due to OPM. S.A. 37–40. She further argued
that repayment would create a financial burden and
hardship. S.A. 39. Because Ms. Gavin requested a waiv-
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GAVIN v. OPM 4
er, OPM stopped the collection of the overpayment it had
started and refunded to Ms. Gavin’s account the amount
it already collected. Decision, 2020 MSPB LEXIS 4360, at
*3. In May 2017, Ms. Gavin received $67,610.40 from
SSA for retroactive payments through April 2017.
S.A. 41. The record does not reflect that she notified
OPM. Decision, 2020 MSPB LEXIS 4360, at *3. Three
years later, in August 2020, OPM denied Ms. Gavin’s
waiver request. S.A. 42.
In September 2020, Ms. Gavin appealed OPM’s deci-
sion denying her waiver request to the Board. Decision,
2020 MSPB LEXIS 4360, at *1. She argued that “it was
reasonable for her to assume the waiver had been grant-
ed” because OPM stopped collection of the overpayment
and took three years to respond to her waiver request. Id.
at *3–4. She did not dispute “the existence or the amount
of the overpayment.” Id. at *3. She stated that she spent
the money on income taxes and medical bills. Id. at *3–4.
On October 30, 2020, the administrative judge (“AJ”)
upheld OPM’s decision. Id. at *8. The AJ noted that “it is
undisputed that [Ms. Gavin] is without fault in causing
the overpayment.” Id. at *5. The AJ found that even
though Ms. Gavin was without fault, “when [she] actually
received the $67,610 lump sum in May of 2017, she knew
that OPM considered $52,186 of it to be an overpayment.”
Id. As a result, the AJ found that OPM’s set-aside rule
applied—Ms. Gavin knew or should have known that the
payment was erroneous and was expected to set aside the
money—and any waiver of repayment depended on a
showing of exceptional circumstances. Id. at *5–6. The
AJ found that, under OPM’s policy guidelines, OPM’s
failure to respond within four years would constitute an
egregious delay but in Ms. Gavin’s case OPM responded
in less than four years. Id. at *6. The AJ also found that
while a delay of less than four years does not absolutely
preclude a waiver, the circumstances in Ms. Gavin’s case
were not exceptional circumstances because “OPM
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GAVIN v. OPM 5
promptly notified [her] of the overpayment” and she made
no inquiries “during the period of delay.” Id. at *6–7. The
AJ further noted that financial hardship is not an excep-
tional circumstance under the set-aside rule; therefore,
Ms. Gavin’s tax burden and increased medical bills do not
constitute exceptional circumstances. Id. at *7. The AJ,
thus, found that no exceptional circumstances exist to
grant a waiver. Id. The AJ also found no basis to con-
clude that Ms. Gavin is entitled to an adjustment of the
recovery schedule because Ms. Gavin failed to complete
and submit a Financial Resources Questionnaire. Id. at
*8. On June 11, 2024, the Board denied Ms. Gavin’s
petition for review of the AJ’s decision and adopted the
decision as its final decision. Gavin, 2024 WL 2956786, at
*1.
Ms. Gavin timely petitioned to this court. We have
jurisdiction under 28 U.S.C. § 1295(a)(9).
D ISCUSSION
The scope of our review of the Board’s decision is lim-
ited. We must affirm the Board’s decision unless it is
“(1) arbitrary, capricious, an abuse of discretion, or other-
wise not in accordance with law; (2) obtained without
procedures required by law, rule, or regulation having
been followed; or (3) unsupported by substantial evi-
dence.” 5 U.S.C. § 7703(c). The petitioner bears the
burden of establishing reversible error in the Board’s final
decision. Sistek v. Dep’t of Veterans Affs., 955 F.3d 948,
953 (Fed. Cir. 2020). We review the Board’s legal deci-
sions de novo and its findings of fact for substantial
evidence support. McIntosh v. Dep’t of Def., 53 F.4th 630,
638 (Fed. Cir. 2022).
Repayment of FERS overpayments may be waived
when, in OPM’s judgment, the individual “is without fault
and recovery would be against equity and good con-
science.” 5 U.S.C. § 8346(b). Under OPM’s policy guide-
lines’ set-aside rule, “if [an individual deemed without
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GAVIN v. OPM 6
fault] suspected or knew that he or she had received an
overpayment (and therefore had an obligation to set aside
the overpaid funds), the individual is not eligible for a
waiver under the ‘equity and good conscience’ standard
and would be entitled to relief only under the more exact-
ing ‘exceptional circumstances’ standard.” Boyd v. OPM,
851 F.3d 1309, 1313–14 (Fed. Cir. 2017). The set-aside
rule states:
Individuals who are aware that they are receiving
overpayments are obligated by the principles of
equity and good conscience to set aside the
amount overpaid pending recoupment by OPM.
Thus, an individual who accepted a payment
which he/she suspected or knew to be erroneous
but who is found without fault . . . is obliged to set
the overpaid money aside pending recovery by
OPM. . . . Unless there are exceptional circum-
stances, recovery by OPM in these cases is not
against equity and good conscience. (Note: Excep-
tional circumstances would involve extremely
egregious errors or delays by OPM—e.g., a failure
to issue a written decision within 4 years of a
debtor’s request for waiver. . . . Financial hard-
ship is not an exceptional circumstance.)
Policy Guidelines on the Disposition of Overpayments
under the Civil Service Retirement System and the Federal
Employees’ Retirement System, § I.C.4 (May 1995) (“Policy
Guidelines”) (emphasis added); S.A. 64.
On petition to this court, Ms. Gavin argues that she is
entitled to a waiver because of OPM’s three-year response
time to her waiver request. Pet’r’s Informal Br. 6.
Ms. Gavin contends that “any reasonable person would
have assumed the waiver request was granted” because
OPM did not respond to her for three years “other than to
return the garnished funds.” Id. at 8. Ms. Gavin asserts
that the repayment would put her in a “major financial
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GAVIN v. OPM 7
bind” and that she has “continual unforeseen” bills due to
her health problems. Id. at 16–17. Ms. Gavin further
argues that the overpayment amount is “inaccurate and
over inflated” because it did not incorporate “multiple tax
implications” and “deductions for life insurance and
health insurance.” Id. at 6–7.
We discern no error in the Board’s determination that
Ms. Gavin was not entitled to a waiver of the obligation to
repay the overpayment. First, while it is undisputed that
Ms. Gavin was without fault, the Board properly deter-
mined that the set-aside rule applied because it found
that Ms. Gavin “accepted a payment that she knew or
should have known to be erroneous.” Decision,
2020 MSPB LEXIS 4360, at *5. That finding is supported
by substantial evidence: Ms. Gavin received three letters
notifying her of the effect of receiving SSA disability
benefits, with the April 2015 letter explicitly instructing
her to hold any retroactive payment received from SSA
“so that [she has] sufficient funds to repay [her] duplicate
payment.” S.A. 50.
Second, the Board’s finding that Ms. Gavin identified
no exceptional circumstances that would entitle her to be
excused from repayment is supported by substantial
evidence and in accordance with law. Ms. Gavin argues
that OPM’s three-year response time to her waiver re-
quest was excessive. As the Board found, however, that
response time is not automatically presumed to be an
exceptional circumstance because it was within four
years. See Policy Guidelines § I.C.4 (“Exceptional circum-
stances would involve extremely egregious errors or
delays by OPM—e.g., failure to issue a written decision
within 4 years of a debtor’s request for waiver.”). Further,
as the Board found, the circumstances in this case do not
constitute extremely egregious errors or delays: OPM
notified Ms. Gavin about the effect of receiving SSA
benefits multiple times before she received the overpay-
ment and Ms. Gavin made no inquiries during the three
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GAVIN v. OPM 8
years. See Decision, 2020 MSPB LEXIS 4360, at *7.
Ms. Gavin also challenges the Board’s finding based on
financial hardship. But, as the Board found, “[f]inancial
hardship is not an exceptional circumstance” under the
set-aside rule. Policy Guidelines § I.C.4. Thus, the Board
properly affirmed OPM’s decision denying Ms. Gavin a
waiver from recovery of the overpayment.
We need not address Ms. Gavin’s argument raised for
the first time to this court. She argues that the overpay-
ment amount would have to be decreased because of life
insurance, health insurance, and tax debts. She asserts
that she “would need a lot more time to determine exactly
how much” the decreased amount would be. Pet’r’s In-
formal Br. 18. Ms. Gavin, however, failed to raise this
argument with the Board. See Decision, 2020 MSPB
LEXIS 4360, at *3 (noting that Ms. Gavin “does not
dispute the existence or the amount of the overpayment”).
“Arguments not made in the court or tribunal whose order
is under review are normally considered” forfeited. Gant
v. United States, 417 F.3d 1328, 1332 (Fed. Cir. 2005).
Further, the Board found that it had no basis on which to
conclude that Ms. Gavin “is entitled to an adjustment of
the recovery schedule” because she failed to complete and
submit a Financial Resources Questionnaire. See Deci-
sion, 2020 MSPB LEXIS 4360, at *8.
CONCLUSION
We have considered Ms. Gavin’s remaining argu-
ments and find them unpersuasive. For the foregoing
reasons, we affirm.
AFFIRMED
COSTS
No costs.
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