Lequita T. Nance v. Office of Personnel Management

N OTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
LEQUITA T. NANCE,
Petitioner
v.
OFFICE OF PERSONNEL MANAGEMENT,
Respondent
______________________
2024-1827
______________________
Petition for review of the Merit Systems Protection
Board in No. AT-0845-22-0136-I-1.
______________________
Decided: February 5, 2025
______________________
L EQ UITA T. N ANCE , Phenix City, AL, pro se.
AN H OANG, Commercial Litigation Branch, Civil Divi-
sion, United States Department of Justice, Washington,
DC, for respondent. Also represented by BRIAN M.
BOYNTON, T ARA K. HOGAN, P ATRICIA M. M C CARTHY .
______________________
Before T ARANTO, STOLL , and STARK, Circuit Judges.
P ER CURIAM .
Case: 24-1827 Document: 26 Page: 1 Filed: 02/05/2025

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NANCE v. OPM 2
In 2016, LeQuita T. Nance’s federal employment came
to an end, and she was approved to receive disability-re-
tirement benefits under the Federal Employees’ Retire-
ment System (FERS). In 2021, the U.S. Office of Personnel
Management (OPM) ruled that Ms. Nance had been over-
paid in FERS disability benefits from April 1, 2016,
through April 30, 2019, due to her simultaneous receipt of
a Social Security Administration (SSA) Disability Insur-
ance Benefit. The Merit Systems Protection Board (Board)
affirmed OPM’s decision. Nance v. Office of Personnel
Management, No. AT-0845-22-0136-I-1, 2024 WL 1091561,
at *1 (M.S.P.B. Mar. 12, 2024) (2024 Decision), adopting,
as the Board’s decision, Nance v. Office of Personnel Man-
agement, No. AT-0845-22-0136-I-1, 2022 WL 2390886
(M.S.P.B. June 30, 2022) (2022 Decision). On Ms. Nance’s
appeal to us, we affirm.
I
In January 2016, Ms. Nance’s federal employment
ended, and she was approved for FERS disability benefits,
effective in February 2015. S. Appx. 41; S. Appx. 63.1 She
also became entitled to receive a SSA Disability Insurance
Benefit—effective on July 1, 2015, and terminating on
April 1, 2016. S. Appx. 41. By statute, Ms. Nance’s receipt
of a SSA disability benefit required a reduction in her
FERS annuity, 5 U.S.C. § 8452(a)(1)–(2), but her annuity
was not actually reduced at that time. S. Appx. 41–43. In
February 2017, OPM notified Ms. Nance that she had been
overpaid $11,240.00 for the period of July 1, 2015, through
March 30, 2016. S. Appx. 41–44. She fully repaid that
amount, S. Appx. 41, which is not at issue in this appeal.
In January 2019, Ms. Nance’s SSA benefits were retro-
actively reinstated, as of April 1, 2016, but her FERS
1 “S. Appx.” refers to the Supplemental Appendix
submitted by the Respondent.
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NANCE v. OPM 3
annuity was not reduced until June 1, 2019. S. Appx. 42,
48; Resp. Br. at 3. On June 10, 2019, OPM notified Ms.
Nance that she had been overpaid $29,413.00 for the period
of April 1, 2016, through April 30, 2019. S. Appx. 52–53.
She requested reconsideration, but on December 8, 2021,
OPM affirmed its initial decision. S. Appx. 41–44.
Ms. Nance appealed to the Board. On June 30, 2022,
an administrative judge issued an initial decision finding
that OPM had proven “the existence and mathematical cor-
rectness of the overpayment” by a preponderance of the ev-
idence. 2022 Decision, at 3–5.2 The administrative judge
also found that the “set-aside rule” applied—Ms. Nance
knew or should have known that the payment was errone-
ous and was expected to “set aside” the money—so that any
waiver of repayment of overpayments depended on show-
ing exceptional circumstances. Id. at 5–7; see also Boyd v.
Office of Personnel Management, 851 F.3d 1309, 1312–14
(Fed. Cir. 2017) (discussing the set-aside rule). The admin-
istrative judge determined that Ms. Nance had not shown
exceptional circumstances or, even, financial hardship jus-
tifying an adjustment of the recovery schedule. 2022 Deci-
sion, at 6–8. Ms. Nance sought full Board review of the
initial decision, but on March 12, 2024, the Board affirmed
the initial decision, adopting it as the final Board decision.
2024 Decision, at *1.
Ms. Nance petitioned this court for review on May 14,
2024—a day after the deadline for filing her appeal. See 5
U.S.C. § 7703(b)(1)(A); Federal Rule of Appellate Proce-
dure 26(a). We have jurisdiction under 28 U.S.C.
§ 1295(a)(9) and 5 U.S.C. § 7703(b)(1)(A).
2 For the 2022 Decision, we cite the page numbers on
the administrative judge’s opinion in the Supplemental Ap-
pendix. See S. Appx. 14–28.
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NANCE v. OPM 4
II
We may set aside the Board’s decision only if it is
“(1) arbitrary, capricious, an abuse of discretion, or other-
wise not in accordance with law; (2) obtained without pro-
cedures required by law, rule, or regulation having been
followed; or (3) unsupported by substantial evidence.”
5 U.S.C. § 7703(c). The petitioner (Ms. Nance) bears the
burden of establishing reversible error in the Board’s final
decision. Sistek v. Department of Veterans Affairs, 955 F.3d
948, 953 (Fed. Cir. 2020). We review the Board’s legal con-
clusions without deference and its findings of fact for sub-
stantial-evidence support. McIntosh v. Department of
Defense, 53 F.4th 630, 638 (Fed. Cir. 2022).
As a preliminary matter, the government contends
that this appeal, which was not filed within 60 days of the
Board’s final decision as required by 5 U.S.C.
§ 7703(b)(1)(A), should be dismissed as untimely. The
§ 7703(b)(1)(A) deadline is not jurisdictional, Harrow v. De-
partment of Defense, 601 U.S. 480, 483, 489–90 (2024), and
this court may, without considering untimeliness, affirm
the Board on the merits if there is no basis for setting aside
the Board decision. See Long v. Department of Veterans
Affairs, No. 2023-2406, 2024 WL 3770715, at *1 (Fed. Cir.
Aug. 13, 2024) (non-precedential). We follow that course
here, and so we do not address whether equitable tolling is
available (here or ever) to excuse untimeliness under
§ 7703(b)(1)(A).
Regarding the merits: Ms. Nance challenges OPM’s cal-
culation of the second overpayment, arguing that the sec-
ond overpayment period overlapped with the first and that
the amounts OPM found she received did not match the
amounts deposited into her bank account. Ms. Nance also
contends that she should receive a waiver of overpayment
collection. Ms. Nance relies on Cebzanov v. Office of Per-
sonnel Management, 100 M.S.P.R. 170 (2005), and Walker
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NANCE v. OPM 5
v. Office of Personnel Management, No. SF-0845-15-0131-I-
1, 2015 WL 1015584 (M.S.P.B Mar. 6, 2015), as support.
We conclude that substantial evidence supports the
Board’s finding that OPM has proven the existence and
amount of the disputed overpayment by a preponderance
of the evidence. 2022 Decision, at 3–5. As the Board noted,
OPM presented a computer printout covering the overpay-
ment period of April 1, 2016, through April 30, 2019, with
calculations showing that Ms. Nance “was paid a gross
amount of $43,905 when she was actually due a gross
amount of $14,492, creating an overpayment of $29,413.”
Id. at 4–5 (citing S. Appx. 57). OPM provided a similar
printout showing how the earlier (not currently disputed)
overpayment was calculated for the period of February 5,
2015, through March 30, 2016,3 which has no overlap with
the second overpayment period. Id. at 5 (citing S. Appx.
58). The Board further noted that Ms. Nance “has pre-
sented no evidence contradicting the evidence presented by
OPM” on this point, 2022 Decision, at 5, and Ms. Nance
identifies to this court no evidence on this point that the
Board disregarded. We discern no error in the Board’s de-
termination.
Ms. Nance asserts that the payment amounts OPM
used in its calculation do not match the actual amounts de-
posited into her bank account, but that assertion, even if
3 The earlier printout includes amounts paid and
amounts due to Ms. Nance for April 1, 2016, through Jan-
uary 30, 2017, which is part of the second overpayment pe-
riod, but those amounts did not contribute to the
overpayment calculation. S. Appx. 58. Those amounts be-
came outdated, as the earlier printout was created on Feb-
ruary 16, 2017, before the retroactive reinstatement (in
January 2019) of her SSA disability benefit (effective April
1, 2016), which generated the second overpayment.
S. Appx. 42, 48; Resp. Br. at 3.
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NANCE v. OPM 6
true, would not show reversible error in the Board’s deci-
sion. OPM’s “Paid and Due Computation” sheets are based
on gross amounts. See id. at 4–5 (citing S. Appx. 57–58)
(discussing “gross amount[s]” used in OPM’s calculation).
Ms. Nance does not show legal error in OPM’s use of gross
amounts for the overpayment calculation. Nor has she
identified any basis for assuming that gross amounts must
equal net amounts (the latter having, e.g., withheld taxes
subtracted) deposited into her bank account.
We similarly discern no error in the Board’s determi-
nation that Ms. Nance was not entitled to a waiver of the
obligation to repay overpayments received. 2022 Decision,
at 5–7. The Board found that Ms. Nance knew or should
have known she was not entitled to the money: She re-
ceived two letters in 2016 “notifying her of the effect of re-
ceiving SSA disability benefits and instructing her not to
spend any retroactive SSA benefits she received.” 2022 De-
cision, at 6; S. Appx. 61–62; S. Appx. 63–65. She had also
“been through the overpayment process before.” 2022 De-
cision, at 6; S. Appx. 41. And, the Board found, Ms. Nance
identified no exceptional circumstances, i.e., egregious de-
lays or other negligent conduct by OPM, that would entitle
her to be excused from repayment despite the application
of the set-aside rule. 2022 Decision, at 6–7. Ms. Nance
does not dispute those findings, which were supported by
substantial evidence.
Finally, the legal arguments that Ms. Nance makes
based on Cebzanov and Walker do not change the outcome
of this appeal. We understand Ms. Nance’s arguments to
be that OPM bears the burden of establishing the existence
and amount of an overpayment by preponderant evidence,
and that waiver may be granted where recovery of the over-
payment is against equity and good conscience. See Cebza-
nov, 100 M.S.P.R. at 173–74; Walker, 2015 WL 1015584.
Because there is no difference material to this case between
the standards she invokes from the cited Board decisions
and the standards the Board applied here, as we have
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NANCE v. OPM 7
already discussed, the cited Board decisions do not help
Ms. Nance.
III
We have considered Ms. Nance’s other arguments and
find them unpersuasive. We affirm the Board’s decision.
The parties shall bear their own costs.
AFFIRMED
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