Skip to main content


U.S. flag
      An official website of the United States government
              Here’s how you know
        Here’s how you knowDot gov**Official websites use .gov**
                 A **.gov** website belongs to an official government organization in the United States.
                  HTTPS**Secure .gov websites use HTTPS**
                 A **lock** (A locked padlock) or **https://** means you’ve safely connected to the .gov website. Share sensitive information only on official, secure websites. 
  Menu Close
          HHS Search block
    Search
        








  
  
    

  
      

                                      About HHS
    
                        
                              
      
      
      Programs & Services
    
                        
                              
      
      
      Grants & Contracts
    
                        
                              
      
      
      Laws & Regulations Breadcrumb
    Home
                              About
                              Agencies
                              DAB
                              Decisions
                              ALJ Decisions
                              2021
                              Wilfredo Nieves, DAB CR5882 (2021)
 Navigate to:
  Departmental Appeals Board (DAB)
    
                                                  
                                                    
            
      
      
      
      About DAB
                                            
            
            Organizational Overview
    
                                                  
                              
            
      
      
      
      Who are the Judges?
    
                                                  
                              
            
      
      
      
      DAB Divisions
    
                                                  
                              
            
      
      
      
      Contact DAB
    
                                                  
                                                    
            
      
      
      
      Filing an Appeal Online
                                            
            
            DAB E-File
    
                                                  
                              
            
      
      
      
      Medicare Operations Division (MOD) E-File
    
                                                  
                                                    
            
      
      
      
      Different Appeals at DAB
                                            
            
            Appeals to DAB Administrative Law Judges (ALJs)
                          
            
            Forms
    
                                                  
                              
            
      
      
      
      Procedures
    
                                                                
                                                    
            
      
      
      
      Appeals to Board
                          
            
            Practice Manual
    
                                                  
                              
            
      
      
      
      Guidelines
    
                                                  
                              
            
      
      
      
      Regulations
    
                                                  
                              
            
      
      
      
      National Coverage Determination Complaints
    
                                                                
                                                    
            
      
      
      
      Appeals to the Medicare Appeals Council (Council)
                          
            
            Forms
    
                                                  
                              
            
      
      
      
      Fully Integrated Duals Advantage (FIDA) Demonstration Project
    
                                                  
                                                    
            
      
      
      
      Alternative Dispute Resolution Services
                                            
            
            Sharing Neutrals
    
                                                  
                              
            
      
      
      
      ADR Training
    
                                                  
                              
            
      
      
      
      Other ADR Services
    
                                                  
                                                    
            
      
      
      
      DAB Decisions
                                            
            
            Board Decisions
    
                                                  
                              
            
      
      
      
      DAB Administrative Law Judge (ALJ) Decisions
    
                                                  
                              
            
      
      
      
      Medicare Appeals Council (Council) Decisions
    
                                    
                              
            
      
      
      
      Stakeholder Feedback
    
                                                  
                                                    
            
      
      
      
      Careers
                                            
            
            Open Career Opportunities
    
                                                  
                              
            
      
      
      
      Internships & ExternshipsText resize icon

                    




Wilfredo Nieves, DAB CR5882 (2021)








  
  
    

  
      
Department of Health and Human Services 
    DEPARTMENTAL APPEALS BOARD
          Civil Remedies Division





Wilfredo Nieves,
Petitioner,

v.

Department of Health and Human Services.
Docket No. C-21-684Decision No. CR5882June 8, 2021

        
              
    

      DECISION

Five years ago, Petitioner, Wilfredo Nieves, PhD, an employee of the Department of Health and Human Services (HHS), timely appealed HHS's determination that he had been overpaid $3,329.37 as a result of the agency's retroactively reclassifying his position from GS-13 to GS-11.  At the same time, Petitioner requested a waiver of the debt.  HHS personnel sat on those requests for years, without referring them to the appropriate reviewers.

As discussed below, my authority here is limited.  I am authorized to review the validity of the overpayment.  Although I may be concerned that HHS did not properly afford Petitioner appeal rights for the reclassification of his position (the record is ambiguous), I am not authorized to review that determination.  Nor may I consider Petitioner's request for waiver.  Finally, I cannot grant equitable relief, even if I conclude that the Department has not treated Petitioner fairly.

Based on the reclassification of Petitioner's position, which I am bound to accept, and, for the reasons explained below (I quibble with some of the arithmetic), I find that Petitioner was overpaid $3,322.12; I therefore affirm HHS's determination, with a slight modification.1

**Page 2**

Background

In a letter dated July 11, 2016, Defense Finance and Accounting Service (DFAS), a component of HHS, advised Petitioner of its reconsidered determination validating that he owes HHS $3,329.37, stemming from overpayments dating back to the pay period ending January 31, 2009.  HHS Ex. 2 at 2-4.  Petitioner disputed the overpayments and, on July 20, 2016, timely requested a hearing.  On April 20, 2021, personnel from the HHS Office of Human Resources, Staffing, Recruitment, & Operations Center forwarded to the Departmental Appeals Board, Civil Remedies Division (CRD) Petitioner's hearing request.  HHS Ex. 2; DAB Electronic Filing System (E-File) Docket Entry #1b.

HHS now moves for summary judgment.  With its motion and brief (HHS Br.), it submits 13 exhibits (HHS Exs. 1-13).  Petitioner submits a written argument (P. Br.) with documents attached.  The documents are not properly marked as exhibits.  To reduce confusion, I will refer to the attachments collectively as one exhibit, P. Ex. 1.  In the absence of any objections, I admit into evidence HHS Exs. 1-13 and P. Ex. 1.

The regulations that govern these proceedings instruct me to provide an oral hearing if I determine "that the matter cannot be resolved by review of documentary evidence alone because an issue of credibility or veracity is involved."  45 C.F.R. § 33.6(c)(2).  In my prehearing order, I advised Petitioner that, to secure an oral hearing, he should affirmatively ask to cross-examine one of HHS's witnesses and show that conducting an oral hearing is necessary to resolve an issue of credibility or veracity.  Prehearing Order at 5 (¶ 8) (April 26, 2021).

HHS has proffered two witnesses, and provided their direct testimony in the form of written declarations.  Petitioner has not asked to cross-examine them or otherwise indicated that an oral hearing is necessary.  I therefore decide this case based on the written record, without considering whether the standards for summary judgment are satisfied.

**Page 3**

Discussion

***Petitioner is indebted to the United States government in the amount of $3,322.12.***2

Effective November 11, 2007, Petitioner was employed as a GS-13 mental health officer by the Office of Emergency Response, Office of Emergency Preparedness, within the Department of Health and Human Services.  HHS Exs. 5, 6.  It is a sporadic job, with virtually no benefits.  HHS Exs. 6, 11.  The job is part of the National Disaster Medical System; these workers are paid only when they work, generally responding to a major emergency requiring extraordinary medical services.  HHS Ex. 8 at 3; HHS Ex. 13 at 1 (Chaboudy Decl. ¶ 3).

Petitioner has a PhD in psychology.  He is a licensed mental health counselor.  HHS agrees that, when he applied for the position, he accurately disclosed his qualifications.  HHS Br. at 3; HHS Ex. 9.  In 2016, nine years after he was hired, HHS personnel officials determined that Petitioner did not qualify for the GS-13 position because he was not licensed as a psychologist, which is a requirement.  HHS Ex. 8 at 4; HHS Ex. 13 at 2 (Chaboudy Decl. ¶ 7).  On March 10, 2016, an HHS personnel management specialist changed Petitioner's appointment to that of a GS-11 mental health specialist, retroactive to November 11, 2007.  This position requires licensing or registration as a professional mental health worker.  HHS Ex. 3 at 1; HHS Ex. 7.

Petitioner challenges the reclassification, arguing that he was qualified for the GS-13 position and that he has performed well in the position.  No one questions his job performance, and HHS asserts that, in 2016, Petitioner "asked for a review, and it was determined that he had been hired into the incorrect position."  HHS Ex. 13 at 2 (Chaboudy Decl. ¶ 7).  The vagueness of this statement is troubling.  I have no idea what kind of review this was, nor whether Petitioner was afforded the opportunity to appeal the determination to the Office of Personnel Management (OPM), as provided for in the applicable federal statute and regulations.  5 U.S.C. § 5112; 5 C.F.R. §§ 511.603(a)(1), 511.604.  However, I do not have the authority to hear appeals of agency classification decisions.  That authority rests with OPM.  *Jorge Gomez v Dep't of HHS*, DAB CR4175 at 8-9 (2015) (citing *Caporale v. Nat'l Aeronautics & Space Admin.*, 4 M.S.P.R. 161, 162 (1980)).

As for the sole issue I am empowered to resolve, there seems to be little dispute.  The pay periods implicated here are those ending:  January 31, 2009; April 10, 2010 through September 7, 2013; April 9, 2014 through July 12, 2015; and February 21, 2015.  HHS Ex. 2 at 2-3.  In its July 11, 2016 letter to Petitioner, DFAS sets forth its calculations.  HHS Ex. 2 at 2-3.  The parties have not discussed these calculations, and I do not understand one of them.  Specifically, DFAS calculated that Petitioner was overpaid

**Page 4**

**$11.70** per hour for 72.5 hours of regular pay for the pay period ending April 10, 2010 through the pay period ending September 7, 2013.  He was paid $39.21 per hour instead of the GS-11 rate of $27.61.  Contrary to DFAS, I calculate an hourly overpayment of **$11.60** ($39.21-$27.61=$11.60).  HHS Ex. 2 at 2.

The overall result is negligible, $7.25.  The error is in HHS's favor, and I therefore decrease the amount of the overpayment by $7.25.

Conclusion

I sustain HHS's determination that Petitioner was overpaid, but decrease the amount of his debt from $3,329.37 to $3,322.12.  This decision is the final agency decision.  5 U.S.C. § 5514(a)(2).

I encourage HHS to forward Petitioner's waiver request to OGC immediately.


          /s/
        Carolyn Cozad Hughes

                      Administrative Law Judge
      1. HHS represents that Petitioner's debt has been placed on hold, and no interest has accrued.  HHS Ex. 12 at 2 (Boyer Decl. ¶ 9).  Inasmuch as HHS is responsible for the long delays in this case, it would be hard to justify charging interest on the debt.  To its credit, when it reclassified the position, HHS personnel advised Petitioner to request a waiver and developed a waiver recommendation package for him.  HHS Ex. 12 at 2 (Boyer Decl. ¶ 10); HHS Br. at 4, 5.  However, the agency did not then forward the package to the Office of General Counsel (OGC), which is authorized to review waiver requests.  HHS Ex. 12 at 2 (Boyer Decl. ¶ 10); HHS Br. at 6.  Apparently, for reasons I do not understand, OGC will not review a waiver request if a hearing request is pending.  HHS Ex. 12 at 2 (Boyer Decl. ¶ 12); HHS Br. at 6. back to note 1
                      2. I make this one finding of fact/conclusion of law. back to note 2 Back to top
    Contact HHS
    
                        
                                            
      
      
      Careers
    
                        
                                            
      
      
      HHS FAQs
    
                        
                                            
      
      
      Nondiscrimination NoticeHHS Archive
    
                        
                                            
      
      
      Accessibility Statement
    
                        
                                            
      
      
      Privacy Policy
    
                        
                                            
      
      
      Viewers & PlayersBudget/Performance
    
                        
                                            
      
      
      Inspector General
    
                        
                                            
      
      
      Web Site Disclaimers
    
                        
                                            
      
      
      EEO/No Fear ActFOIA
    
                        
                                            
      
      
      The White House
    
                        
                                            
      
      
      USA.gov
    
                        
                                            
      
      
      Vulnerability Disclosure Policy
        Sign Up for Email Updates

Receive the latest updates from the Secretary, Blogs, and News Releases.

Sign Up
  HHS Headquarters
          200 Independence Avenue, S.W.
                  Washington, D.C. 20201
                  Toll Free Call Center: 1-877-696-6775​ Disclaimer Policy: Links with this icon () mean that you are leaving the HHS website. The Department of Health and Human Services (HHS) cannot guarantee the accuracy of a non-federal website.
                  Linking to a non-federal website does not mean that HHS or its employees endorse the sponsors, information, or products presented on the website. HHS links outside of itself to provide you with further information.
                  You will be bound by the destination website's privacy policy and/or terms of service when you follow the link.
                  HHS is not responsible for Section 508 compliance (accessibility) on private websites. For more information on HHS's web notification policies, see Website Disclaimers.
 Continue
                  Go back