Warrender v. Office of Personnel Management
691 F. App'x 629
| Fed. Cir. | 2017Background
- Nancy Warrender, a former IRS employee, received FERS disability retirement starting January 10, 2006; OPM informed her she must apply for SSA disability, report SSA benefits, and that SSA benefits could be deducted from FERS.
- OPM sent a follow-up letter March 16, 2006 reiterating reporting and advising her to set aside any SSA retroactive payments for possible repayment to OPM; Warrender replied only that she had appealed SSA’s initial denial.
- OPM later determined Warrender became entitled to SSA benefits effective August 1, 2009, and calculated a FERS overpayment of $51,348 for Aug 2009–Feb 2015.
- OPM denied waiver and set a repayment schedule; Warrender appealed to the MSPB, which denied waiver but adjusted repayment for financial hardship to 342 monthly payments of $150 plus a final payment.
- The full Board affirmed; Warrender appealed to the Federal Circuit challenging denial of waiver and arguing (among other things) hardship and various procedural contentions.
- The Federal Circuit reviewed for substantial evidence/abuse of discretion and affirmed the Board: Warrender knew or should have known of the overpayment, the set‑aside rule applied, and waiver was unavailable though the repayment schedule was adjusted for hardship.
Issues
| Issue | Warrender's Argument | OPM / Board's Argument | Held |
|---|---|---|---|
| Whether she is eligible for waiver of the FERS overpayment | Warrender sought waiver because of financial hardship and alleged procedural issues (e.g., lack of pro bono counsel, personal matters) | She knew or should have known of overpayment from OPM letters; thus not without fault and not eligible for waiver | Held: Not eligible for waiver; substantial evidence supports Board finding she knew or should have known |
| Whether the “set‑aside” rule prevents waiver despite hardship | Warrender argued hardship should excuse repayment | OPM/Board: set‑aside applies when recipient knew or suspected overpayment; hardship alone does not permit waiver where set‑aside applies | Held: Set‑aside rule applies; financial hardship does not permit waiver absent exceptional circumstances |
| Whether repayment schedule should be adjusted for hardship | Warrender sought relief based on hardship | Board adjusted schedule recognizing hardship; further adjustments should be sought from OPM | Held: Board properly adjusted schedule; any further modification is for OPM to consider |
Key Cases Cited
- Briggs v. Merit Sys. Prot. Bd., 331 F.3d 1307 (Fed. Cir. 2003) (standard of review on appeals from MSPB decisions)
- Boyd v. Office of Pers. Mgmt., 851 F.3d 1309 (Fed. Cir. 2017) (explaining set‑aside rule and that financial hardship does not constitute an exceptional circumstance for waiver)
- Martin v. Office of Pers. Mgmt., 960 F.2d 156 (Fed. Cir. 1992) (repayment schedule adjustments and deference to OPM procedures for further modification)