UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

DONALD KENNETH CHARNEY,

Appellant,

v.

OFFICE OF PERSONNEL 

MANAGEMENT,

Agency.

DOCKET NUMBER

PH-0831-19-0239-I-1

DATE: June 14, 2024

THIS FINAL ORDER IS NONPRECEDENTIAL1

Donald Kenneth Charney, New York, New York, pro se.

Carla Robinson, Washington, D.C., for the agency.

BEFORE

Cathy A. Harris, Chairman

Raymond A. Limon, Vice Chairman

Henry J. Kerner, Member*

*Member Kerner did not participate in the adjudication of this appeal.

FINAL ORDER

¶1 The appellant has filed a petition for review of the initial decision, which

affirmed the Office of Personnel Management’s (OPM) final decision regarding a

Federal Employees’ Retirement System (FERS) annuity overpayment. Generally,

1

 A nonprecedential order is one that the Board has determined does not add

significantly to the body of MSPB case law. Parties may cite nonprecedential orders,

but such orders have no precedential value; the Board and administrative judges are not

required to follow or distinguish them in any future decisions. In contrast, a

precedential decision issued as an Opinion and Order has been identified by the Board

as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
we grant petitions such as this one only in the following circumstances: the

initial decision contains erroneous findings of material fact; the initial decision is

based on an erroneous interpretation of statute or regulation or the erroneous

application of the law to the facts of the case; the administrative judge’s rulings

during either the course of the appeal or the initial decision were not consistent

with required procedures or involved an abuse of discretion, and the resulting

error affected the outcome of the case; or new and material evidence or legal

argument is available that, despite the petitioner’s due diligence, was not

available when the record closed. Title 5 of the Code of Federal Regulations,

section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this

appeal, we conclude that the petitioner has not established any basis under section

1201.115 for granting the petition for review. Therefore, we DENY the petition

for review. Except as expressly MODIFIED below regarding the existence and

amount of the overpayment, we AFFIRM the initial decision. 

BACKGROUND

¶2 The following facts are undisputed. The appellant retired from Federal

service under FERS on January 3, 1999. Initial Appeal File (IAF), Tab 14

at 108-15. He was unmarried at the time and elected an unreduced annuity

payable only during his lifetime. Id. at 108. On March 21, 2005, the appellant

married. Id. at 42. On April 29, 2005, he appeared in person at OPM

Headquarters and completed the necessary forms to elect a reduced annuity to

provide survivor benefits for his wife. Id. at 28. It was not until 2014 that the

appellant realized that OPM had never reduced his annuity or otherwise put his

2005 survivor benefit election into effect. Id.

¶3 On October 18, 2014, the appellant requested that OPM provide him with a

reduced annuity in accordance with his earlier election. Id. at 23. OPM denied

the request, but after the appellant filed a Board appeal, OPM rescinded its

decision and decided to allow the election. IAF, Tab 14 at 77, 80-85; Charney v.

2
Office of Personnel Management, MSPB Docket No. NY-0842-18-0033-I-1,

Appeal File, Tab 15. On June 15, 2018, OPM notified the appellant that he would

have 60 days to complete and return a survivor annuity election form. IAF,

Tab 14 at 46-51. OPM also notified the appellant that the election would be

retroactive to January 1, 2006, the first day after the 9-month period beginning

the date of his marriage. Id. at 46. It therefore informed him that, if he elected a

survivor annuity, he would be in an overpayment status due to his receipt of an

unreduced annuity since that date. Id. at 49. OPM also informed the appellant of

the estimated amounts of overpayment and proposed collection schedules,

depending on whether he elected a full or partial survivor benefit. Id. On or

about July 19, 2018, the appellant indicated his election of a full survivor benefit.

Id. at 41.

¶4 On August 7, 2018, OPM issued an initial decision, informing the appellant

that, due to his survivor annuity election, he had incurred an overpayment of

$28,487, which it intended to collect in 79 monthly installments of $360.30 and a

final installment of $23.30. 2 Id. at 33-36. The appellant filed a request for

reconsideration, challenging the amount of the overpayment and asking that it be

reduced to account for OPM’s delay in allowing the election. Id. at 18-21. On

April 12, 2019, OPM issued a final decision affirming its initial decision. Id.

at 15-17.

¶5 The appellant filed a Board appeal challenging OPM’s decision and again

requesting an adjustment to the amount of the overpayment. IAF, Tab 1. He

waived his right to a hearing. IAF, Tab 17, Initial Decision (ID) at 1. After the

close of the record, the administrative judge issued an initial decision affirming

OPM’s final decision. ID. She found that OPM proved the existence and amount

2

 OPM’s June 15, 2018 estimate notified the appellant that, if he elected the full benefit,

he could expect to incur a $28,273 overpayment with a collection schedule of $360.30

for 78 months and a final installment of $179.80. IAF, Tab 14 at 49. Considering the

passage of time between this estimate and the appellant’s July 19, 2018 response, it

appears that the estimate was accurate.

3
of the overpayment, and that the appellant did not establish that the overpayment

should be waived or the collection schedule adjusted. ID at 3-5.

¶6 The appellant has filed a petition for review, arguing that the overpayment

should be recalculated to exclude the period of time that OPM had failed to

recognize his survivor annuity election. Petition for Review (PFR) File, Tab 1.

OPM has filed a response. PFR File, Tab 4.

ANALYSIS

¶7 OPM bears the burden of proving the existence and amount of an annuity

overpayment by preponderant evidence. Vojas v. Office of Personnel

Management, 115 M.S.P.R. 502, ¶ 10 (2011). In this case, the administrative

judge found that the appellant did not dispute the existence or the amount of the

overpayment. ID at 3. However, the appellant argues on petition for review that

he did dispute the amount of the overpayment. PFR File, Tab 1 at 4.

Specifically, he argued below, as he does on review, that “[t]he amount should be

recalculated to reflect the dates benefits would have been available.” IAF, Tab 1

at 4; PFR File, Tab 1 at 4. According to the appellant’s theory of the case, if he

had died before the date that OPM accepted his survivor annuity election, his wife

would not have received any survivor benefit. He argues that, because survivor

benefits were not actually available for his wife prior to OPM’s acceptance of the

survivor annuity election in 2018, he should not be required to pay for them as

though they were. IAF, Tab 1 at 4, Tab 6 at 4. The appellant asserted that he was

without fault and that “recovery would be against equity and good conscience,”

thus suggesting that he was seeking a waiver. IAF, Tab 6 at 4; see 5 U.S.C.

§ 8470(b); 5 C.F.R. § 845.301. However, he also stated that “the commencement

date used in calculating the overpayment is the sole issue in this case,” thus

suggesting that he was disputing the amount of the overpayment. IAF, Tab 6 at 4.

Construing this pro se appellant’s pleadings in the most favorable light possible,

4
we find that he was making two alternative arguments, the first disputing the

amount of the overpayment and the second requesting a partial waiver.

OPM proved the existence and the amount of the overpayment.

¶8 An employee who is unmarried at the time of retiring and who later marries

may irrevocably elect, within 2 years after the marriage, a reduction in his current

annuity in order to provide a survivor annuity for his spouse. 5 U.S.C. § 8416(c)

(1); Larson v. Office of Personnel Management, 93 M.S.P.R. 433, ¶ 7 (2003); 5

C.F.R. § 842.612(a). 

¶9 The basic premise of the appellant’s argument for recalculating the

overpayment amount is that he did not make his survivor annuity election until

2018. However, we find that the appellant made his election in 2005, and that

OPM merely waited until 2018 to implement it. This is reflected in the language

of OPM’s initial and final decisions. IAF, Tab 14 at 15, 33. Moreover, accepting

the appellant’s argument would entail a finding that OPM waived the 2-year

statutory deadline for making the election, but OPM would not have been

authorized to do so under the facts of this case. There are only three possible

bases for waiving a statutory deadline, none of which apply here: (1) The statute

may provide for a waiver under specified circumstances; (2) an agency’s

affirmative misconduct may preclude enforcement of the deadline under the

doctrine of equitable estoppel; and (3) an agency’s failure to provide a notice of

rights and the applicable filing deadline, where such notice is required by law,

may warrant a waiver of the deadline. Lee v. Office of Personnel Management,

118 M.S.P.R. 604, ¶ 4 (2012). Regarding the first possibility, the statute itself

does not provide for waiver under the circumstances of this case. 3 Regarding the

3

 Neither the Board nor the United States Court of Appeals for the Federal Circuit has

recognized any statutory waiver provision for the 2-year deadline in 5 U.S.C. § 8416(c)

(1). See, e.g., Schoemakers v. Office of Personnel Management, 180 F.3d 1377, 1381-

82 (Fed. Cir. 1999) (finding no statutory mechanism to waive the Civil Service

Retirement System (CSRS) survivor annuity election deadline based on mental

incapacity); see also Larson v. Office of Personnel Management, 93 M.S.P.R. 433, ¶ 7

(2003) (finding the FERS survivor annuity deadline to be “basically indistinguishable”

5
second possibility, although OPM may have been negligent in failing to effect the

appellant’s 2005 election, negligence does not amount to the affirmative

misconduct required to waive a filing deadline based on equitable estoppel. See

Nunes v. Office of Personnel Management, 111 M.S.P.R. 221, ¶ 19 (2009).

Regarding the third possibility, OPM submitted evidence that it mailed the

appellant the required annual notice of his survivor annuity election rights from

the date of his retirement through the close of the election period, and the

appellant has not rebutted this evidence. 4 IAF, Tab 14 at 90-93; see Cartsounis v.

Office of Personnel Management, 91 M.S.P.R. 502, ¶¶ 6-7 (2002). In sum, based

on the plain language of OPM’s decision letters and its inability to waive the

election deadline, we find that the appellant made his election in 2005, and not in

2018.

¶10 Moreover, even if the appellant had made his election in 2018, the statute

plainly requires that “[t]he election and reduction shall take effect the first day of

the first month beginning 9 months after the date of marriage.” 5 C.F.R.

§ 8416(c)(2). The statute makes no distinction between elections made during the

2-year period in 5 U.S.C. § 8416(c)(1) and elections made after the 2-year period.

Therefore, regardless of when the election was made, we find that OPM did not

err in making the election and reduction retroactive to January 1, 2006, the first

day after the 9-month period beginning the date of the appellant’s March 21, 2005

marriage. IAF, Tab 14 at 46.

¶11 Having found that the dates that OPM used to calculate the overpayment

were correct under the law, we agree with the administrative judge that OPM

provided sufficient evidence of its calculations to prove the amount of the

overpayment in question, and that the appellant did not rebut those calculations.

ID at 3; IAF, Tab 14 at 40. We therefore agree with the administrative judge that

from the CSRS survivor annuity deadline).

4

 Even if OPM had not sent the required annual notice, the appellant’s 2005 survivor

annuity application shows that he was actually aware of his election rights during the

relevant time period.

6
OPM established the existence of an overpayment in the amount of $28,487. ID

at 3; IAF, Tab 14 at 15.

The appellant has not shown that recovery of the overpayment should be waived.

¶12 Recovery of an overpayment may not be made from an individual when, in

the judgment of OPM, the individual is without fault and recovery would be

against equity and good conscience. 5 U.S.C. § 8470(b); 5 C.F.R. § 845.301.

Generally, recovery of an overpayment would be against equity and good

conscience when: (1) it would cause financial hardship; (2) the recipient of the

overpayment can show that he relinquished a valuable right or changed positions

for the worse as a result of the overpayment; or (3) it would be unconscionable

under the circumstances. 5 C.F.R. § 845.303. The Board will consider all

relevant factors under a “totality of-the-circumstances” approach to determine

whether recovery of an annuity payment is unconscionable. Wilcox v. Office of

Personnel Management, 46 M.S.P.R. 377, 382-83 (1990). The annuitant bears

the burden of establishing his entitlement to a waiver by substantial evidence.

5 C.F.R. § 845.307(b); see also 5 C.F.R. § 1201.56(b)(2)(ii).

¶13 In this case, the administrative judge found that the appellant did not assert

financial hardship or detrimental reliance on the overpayment. ID at 4. She

considered the appellant’s argument that recovery would be unconscionable

because his wife would not have received the annuity benefit if he had died

during the time of the retroactive period, but she disagreed because the appellant

voluntarily elected the survivor annuity and was put on notice that his election

would create an overpayment. ID at 4-5.

¶14 To the extent that the appellant’s petition for review constitutes a challenge

to this finding, we agree with the administrative judge that recovery would

generally not be unconscionable when an overpayment resulted from a voluntary

election of alternative benefits, particularly where the exact amount of the

overpayment was known in advance. ID at 5. Moreover, we note that the

appellant’s argument is premised on a hypothetical that did not actually occur; the

7
appellant did not die during the period of retroactivity, and his wife was not

thereby denied survivor benefits due to OPM’s error. 5 Given that the appellant

survived this period, we find that he is now essentially seeking a windfall, to

avoid paying for the reduction in his basic annuity that would have occurred but

for OPM’s mistake. See Day v. Office of Personnel Management, 873 F.2d 291,

293 (Fed. Cir. 1989). OPM has now rectified its 2005 administrative error, and

the appellant is now no worse off for it. The principles of equity and good

conscience do not require that the Board make him better off than if the error had

not occurred.6 Cf. Oates v. Department of Health and Human Services,

64 M.S.P.R. 349, 351 (1994) (finding that status quo ante relief does not require

that an individual be placed in a better position than if the challenged action had

not occurred).

NOTICE OF APPEAL RIGHTS7

The initial decision, as supplemented by this Final Order, constitutes the

Boards final decision in this matter. 5 C.F.R. § 1201.113. You may obtain

review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of

your claims determines the time limit for seeking such review and the appropriate

5

 Even if the appellant had died during the period of retroactivity, there would have

been nothing to prevent his wife from actually obtaining survivor benefits by

challenging OPM’s failure to process the 2005 survivor annuity election. See generally

5 U.S.C. § 8461(e)(1) (providing Board appeal rights to individuals whose rights or

interests under FERS are affected by an agency decision).

6

 OPM has advised the Board that it may seek recovery of any debt remaining upon an

appellant’s death from the appellant’s estate or other responsible party. A party

responsible for any debt remaining upon the appellant’s death may include an heir

(spouse, child, or other) who is deriving a benefit from the appellant’s Federal benefits,

an heir or other person acting as a representative of the estate if, for example, the

representative fails to pay the United States before paying the claims or other creditors

in accordance with 31 U.S.C. § 3713(b), or transferees or distributers of the appellant’s

estate. Pierotti v. Office of Personnel Management, 124 M.S.P.R. 103, ¶ 13 (2016).

7

 Since the issuance of the initial decision in this matter, the Board may have updated

the notice of review rights included in final decisions. As indicated in the notice, the

Board cannot advise which option is most appropriate in any matter.

8
forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following

summary of available appeal rights, the Merit Systems Protection Board does not

provide legal advice on which option is most appropriate for your situation and

the rights described below do not represent a statement of how courts will rule

regarding which cases fall within their jurisdiction. If you wish to seek review of

this final decision, you should immediately review the law applicable to your

claims and carefully follow all filing time limits and requirements. Failure to file

within the applicable time limit may result in the dismissal of your case by your

chosen forum.

Please read carefully each of the three main possible choices of review

below to decide which one applies to your particular case. If you have questions

about whether a particular forum is the appropriate one to review your case, you

should contact that forum for more information. 

(1) Judicial review in general. As a general rule, an appellant seeking

judicial review of a final Board order must file a petition for review with the U.S.

Court of Appeals for the Federal Circuit, which must be received by the court

within 60 calendar days of the date of issuance of this decision. 5 U.S.C.

§ 7703(b)(1)(A). 

If you submit a petition for review to the U.S. Court of Appeals for the

Federal Circuit, you must submit your petition to the court at the

following address: 

U.S. Court of Appeals 

for the Federal Circuit 

717 Madison Place, N.W. 

Washington, D.C. 20439 

Additional information about the U.S. Court of Appeals for the Federal

Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular

relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is

contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. 

9
If you are interested in securing pro bono representation for an appeal to

the U.S. Court of Appeals for the Federal Circuit, you may visit our website at

http://www.mspb.gov/probono for information regarding pro bono representation

for Merit Systems Protection Board appellants before the Federal Circuit. The

Board neither endorses the services provided by any attorney nor warrants that

any attorney will accept representation in a given case. 

(2) Judicial or EEOC review of cases involving a claim of

discrimination. This option applies to you only if you have claimed that you

were affected by an action that is appealable to the Board and that such action

was based, in whole or in part, on unlawful discrimination. If so, you may obtain

judicial review of this decision—including a disposition of your discrimination

claims—by filing a civil action with an appropriate U.S. district court (not the

U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you

receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems

Protection Board, 582 U.S. 420 (2017). If you have a representative in this case,

and your representative receives this decision before you do, then you must file

with the district court no later than 30 calendar days after your representative

receives this decision. If the action involves a claim of discrimination based on

race, color, religion, sex, national origin, or a disabling condition, you may be

entitled to representation by a court-appointed lawyer and to waiver of any

requirement of prepayment of fees, costs, or other security. See 42 U.S.C.

§ 2000e-5(f) and 29 U.S.C. § 794a. 

Contact information for U.S. district courts can be found at their respective

websites, which can be accessed through the link below: 

http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx. 

Alternatively, you may request review by the Equal Employment

Opportunity Commission (EEOC) of your discrimination claims only, excluding

all other issues. 5 U.S.C. § 7702(b)(1). You must file any such request with the

10
EEOC’s Office of Federal Operations within 30 calendar days after you receive

this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,

and your representative receives this decision before you do, then you must file

with the EEOC no later than 30 calendar days after your representative receives

this decision. 

If you submit a request for review to the EEOC by regular U.S. mail, the

address of the EEOC is: 

Office of Federal Operations 

Equal Employment Opportunity Commission 

P.O. Box 77960 

Washington, D.C. 20013 

If you submit a request for review to the EEOC via commercial delivery or

by a method requiring a signature, it must be addressed to: 

Office of Federal Operations 

Equal Employment Opportunity Commission 

131 M Street, N.E. 

Suite 5SW12G 

Washington, D.C. 20507 

(3) Judicial review pursuant to the Whistleblower Protection

Enhancement Act of 2012. This option applies to you only if you have raised

claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or

other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).

If so, and your judicial petition for review “raises no challenge to the Board’s

disposition of allegations of a prohibited personnel practice described in

section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)

(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either

with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of

competent jurisdiction.8 The court of appeals must receive your petition for

8

 The original statutory provision that provided for judicial review of certain

whistleblower claims by any court of appeals of competent jurisdiction expired on

December 27, 2017. The All Circuit Review Act, signed into law by the President on

July 7, 2018, permanently allows appellants to file petitions for judicial review of

11
review within 60 days of the date of issuance of this decision. 5 U.S.C.

§ 7703(b)(1)(B). 

If you submit a petition for judicial review to the U.S. Court of Appeals for

the Federal Circuit, you must submit your petition to the court at the

following address: 

U.S. Court of Appeals 

for the Federal Circuit 

717 Madison Place, N.W. 

Washington, D.C. 20439 

Additional information about the U.S. Court of Appeals for the Federal

Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular

relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is

contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. 

If you are interested in securing pro bono representation for an appeal to

the U.S. Court of Appeals for the Federal Circuit, you may visit our website at

http://www.mspb.gov/probono for information regarding pro bono representation

for Merit Systems Protection Board appellants before the Federal Circuit. The

Board neither endorses the services provided by any attorney nor warrants that

any attorney will accept representation in a given case. 

MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals

for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.

The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,

132 Stat. 1510. 

12
Contact information for the courts of appeals can be found at their

respective websites, which can be accessed through the link below: 

http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx. 

FOR THE BOARD: ______________________________

Gina K. Grippando

Clerk of the Board

Washington, D.C.

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