UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

MARSHANN TERWILLIGER,

Appellant,

v.

OFFICE OF PERSONNEL 

MANAGEMENT,

Agency.

DOCKET NUMBER

AT-0831-13-0372-I-1

DATE: August 20, 2014

THIS FINAL ORDER IS NONPRECEDENTIAL1

Marshann Terwilliger, Moncks Corner, South Carolina, pro se.

Christopher H. Ziebarth, Washington, D.C., for the agency.

BEFORE

Susan Tsui Grundmann, Chairman

Anne M. Wagner, Vice Chairman

Mark A. Robbins, Member

FINAL ORDER

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

affirmed the Office of Personnel Management’s (OPM’s) reconsideration decision 

denying the appellant’s request to waive interest due on the redeposit of 

previously withdrawn retirement contributions. Generally, we grant petitions 

 1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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).
2

such as this one only when: 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 

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. See 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, and based on the following points and authorities, 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 review2 and AFFIRM 

the initial decision, which is now the Board’s final decision. 5 C.F.R. 

§ 1201.113(b). We FORWARD the appellant’s claims concerning her request to 

repay the withdrawn retirement contributions and interest by actuarial reduction 

from her retirement annuity to the Atlanta Regional Office for docketing as a new 

appeal.

¶2 The appellant resigned from her position with the Department of the Army 

(agency) on June 20, 1991, after almost 13 years of service. Initial Appeal File 

(IAF), Tab 5 at 22-26. On June 17, 1991, the appellant applied for a refund of her 

retirement deductions. Id. at 21. On September 20, 1991, OPM issued a refund 

of the appellant’s retirement deductions. Id. at 22. The agency rehired the 

appellant on October 4, 2004. Id. at 30. On January 20, 2005, the appellant filed 

an application to repay the retirement deductions previously refunded to her. Id.

at 20. The appellant then began repaying the retirement deductions. Id. at 41-42. 

In 2006, the appellant received Benefit Estimates from the agency erroneously 

 2 In light of our finding that the appellant’s petition for review does not meet the criteria 

for review set forth at 5 C.F.R. § 1201.115, we need not address the apparent untimeliness 

of the petition. See Mojarro v. U.S. Postal Service, 113 M.S.P.R. 335, ¶ 9 n.3 (2010).
3

indicating that she had been given credit for the period of service covered by her 

retirement deductions. IAF, Tab 3 at 10-11, Tab 5 at 31. OPM and agency 

employees advised the appellant that it was in her best interest to take an actuarial 

reduction of her unpaid retirement deductions when she retired rather than 

continuing to repay the deductions with interest. See IAF, Tab 5 at 13, 35. The

appellant then ceased making the repayments. See id. at 31.

¶3 The appellant was subsequently informed that she would not receive credit 

for the period of service covered by her refunded retirement deductions unless she 

repaid those deductions with interest prior to her retirement. See IAF, Tab 5 at 

14. The appellant asked OPM to waive the interest on her repayment. See id. at 

34-36. OPM issued an initial decision dated June 27, 2012, denying the 

appellant’s request. Id. at 34. 

¶4 On September 11, 2012, OPM issued another initial decision notifying the 

appellant that she would have to pay the redeposit in order to receive credit in her 

annuity for the period of service covered by the refunded retirement deductions. 

IAF, Tab 5 at 16. On September 18, 2012, the appellant requested 

reconsideration of the initial decision, 3 stating that her employing agency had 

incorrectly informed her that it would be in her best interest to pay the redeposit 

by actuarial reduction from her retirement annuity. Id. at 13-14.

¶5 On February 5, 2013, OPM issued a final decision denying the appellant’s 

request for reconsideration of its initial decision4 denying her request to “have 

 3 In her request for reconsideration, the appellant did not specify whether she was 

requesting reconsideration of OPM’s September 11, 2012 initial decision or its June 27, 

2012 initial decision. IAF, Tab 5 at 13-14, 16, 34. However, the content of the 

appellant’s reconsideration request, including her statement that she was filing her 

request within 30 days of the initial decision, id. at 13, indicates that the appellant’s 

reconsideration request pertained to OPM’s September 11, 2012 initial decision, rather 

than its June 27, 2012 initial decision denying her request for the waiver of interest due 

on the redeposit of previously withdrawn retirement contributions, id. at 13-14, 16, 34.

4 OPM did not specify whether its reconsideration decision pertained to its 

September 11, 2012 initial decision or its June 27, 2012 initial decision. IAF, Tab 5 at 

9-11. However, the content of the reconsideration decision clearly indicates that it 
4

additional interest waived on the redeposit of [her] Federal Service.” IAF, Tab 5 

at 9-11. The appellant filed a Board appeal challenging OPM’s final decision. 

IAF, Tab 1. She initially requested a hearing but withdrew her request on the day 

of the hearing. Id. at 2; IAF, Tab 8, Initial Decision (ID) at 1-2. 

¶6 In an initial decision dated June 6, 2013, the administrative judge affirmed 

OPM’s reconsideration decision denying the appellant’s request for the waiver of 

interest. ID at 1. He noted, however, that, in addition to that request, the 

appellant sought to raise another issue, which OPM did not address in its 

reconsideration decision; namely, her request that the balance of her redeposit 

and interest be paid by actuarial reduction from her annuity rather than by 

payment in full prior to her retirement. ID at 2. The administrative judge 

remanded the actuarial reduction issue to OPM for issuance of a new 

reconsideration decision “addressing the appellant’s request to be allowed to 

retire with service credit for the period for which she previously withdrew her 

retirement contributions and pay for the redeposit and interest by actuarial 

reduction.” ID at 4. The administrative judge ordered OPM to issue the new 

reconsideration decision within 60 days from the date of the initial decision. ID 

at 4. The administrative judge also notified the appellant that the initial decision 

would become final on July 11, 2013, unless a petition for review was filed by 

that date. ID at 4.

¶7 On August 13, 2013, the appellant filed a petition for enforcement with the 

Atlanta Regional Office, alleging that OPM had failed to comply with the 

administrative judge’s order to issue a new reconsideration decision addressing 

her request for actuarial reduction within 60 days of the June 6, 2013 initial 

decision. Petition for Review (PFR) File, Tab 7 at 11-12. On September 23, 

2013, OPM issued a reconsideration decision in which it denied the appellant’s 

 

pertains to the June 27, 2012 initial decision denying the appellant’s request for the 

waiver of interest due on the redeposit of her refunded retirement contributions. Id. at 

34.
5

request that the balance of her redeposit and interest be paid by actuarial 

reduction from her retirement annuity. Id. at 6-7. By letter dated October 21, 

2013, OPM filed a response to the appellant’s petition for enforcement and 

asserted that it had issued a reconsideration decision as directed by the 

administrative judge in his June 6, 2013 initial decision. Id. at 4-5. OPM stated 

that it had “completed all required compliance actions” and requested that the 

appellant’s petition for enforcement be dismissed. Id.

¶8 On October 22, 2013, 5 the appellant electronically filed a pleading entitled 

“Petition for Review.” PFR File, Tab 1. In an October 24, 2013 telephone 

conversation with an employee of the Office of the Clerk of the Board, the 

appellant confirmed that she did not want to file a petition for review with the full 

Board at that time. See PFR File, Tab 2. By notice dated October 25, 2013, the 

Clerk apprised the appellant that the Board would not take any further action 

concerning her October 22, 2013 filing. Id.

¶9 On November 13, 2013, the appellant electronically filed another pleading 

entitled “Petition for Review.” PFR File, Tab 3. In that filing, however, the 

appellant did not argue that the June 6, 2013 initial decision was incorrectly 

decided. 6

 Id. Rather, she appeared to challenge OPM’s October 21, 2013 

response to her petition for enforcement and OPM’s reconsideration decision 

denying her request for actuarial reduction. Id. 

 5 Documentation that the appellant subsequently submitted to the Board indicates that 

she had not yet received OPM’s October 21, 2013 response to her petition for 

enforcement when she filed her October 22, 2013 submission. See PFR File, Tab 7 at 

15.

6 Although the appellant answered “yes” to the question on the Board’s petition for 

review form asking if the initial decision incorrectly decided any important facts, her 

responses to the questions on the form asking her to identify what important facts were 

incorrectly decided and what other reasons the initial decision was wrong indicate that, 

in stating that the initial decision was wrong, the appellant was referring to OPM’s 

September 23, 2013 reconsideration decision and/or its October 21, 2013 response to 

her petition for enforcement rather than the administrative judge’s initial decision. See

PFR File, Tab 3 at 4-5 (responses to questions 9-10, 12-13), Tab 7 at 4-7.
6

¶10 Because the content and timing of the appellant’s submission indicated that 

the appellant may have intended her November 13, 2013 filing to be a new appeal 

of OPM’s reconsideration decision instead of a petition for review of the June 6, 

2013 initial decision, the Board issued an order in which it provided the appellant 

the opportunity to clarify the intent of her November 13, 2013 filing. PFR File, 

Tab 9. Specifically, the Board ordered the appellant to file a written submission 

clarifying whether she intended to file a new appeal in filing her November 13, 

2013 pleading entitled “Petition for Review.” Id.

¶11 In her response to the Board’s order, the appellant does not state whether 

she intended her November 13, 2013 pleading to be a new appeal rather than a 

petition for review. PFR File, Tab 11. Instead, the appellant essentially reasserts 

the arguments from her November 13, 2013 pleading pertaining to the actuarial 

reduction issue. PFR File, Tabs 3, 11. In addition, the appellant reiterates her 

argument that OPM failed to comply with the administrative judge’s order to 

issue a decision on the actuarial reduction issue within 60 days of the June 6, 

2013 initial decision. PFR File, Tab 7 at 11, Tab 11. In that regard, the appellant 

asserts that she filed a petition for enforcement regarding this matter but “nothing 

was done.” PFR File, Tab 11.

¶12 The Board’s order directing the appellant to clarify her intentions regarding 

her November 13, 2013 pleading advised the appellant that, if she stated that she 

intended to file a new appeal in filing that pleading, then the Board would issue 

an order dismissing her “Petition for Review” as withdrawn and forwarding her 

November 13, 2013 submission to the Atlanta Regional Office for docketing as an 

appeal of OPM’s September 23, 2013 reconsideration decision. PFR File, Tab 9. 

Because the appellant did not state in her response to the order that she intended 

her November 13, 2013 to be a new appeal rather than a petition for review, PFR 

File, Tab 11, we consider that pleading a petition for review of the administrative 

judge’s June 6, 2013 initial decision.
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¶13 A petition for review must state objections to the initial decision that are 

supported by references to applicable laws or regulations and by specific 

references to the record. See 5 C.F.R. § 1201.115(a). The appellant’s petition for 

review does not identify any error by the administrative judge and we discern 

none. As the administrative judge explained in the initial decision, the payment 

of interest on a redeposit is a statutory requirement, and there is no law, rule, or 

regulation which would allow OPM the discretion to waive the payment of 

interest. ID at 2 (citing 5 U.S.C. § 8334(d)(1); 5 C.F.R. § 831.105(d)). The 

administrative judge also correctly rejected the appellant’s argument that interest 

should be waived based on equitable considerations, noting that “the doctrine of 

equitable estoppel cannot be used to pay a retirement benefit from the Federal 

Treasury that is contrary to a statutory appropriation because the payment would 

violate the Appropriations Clause of the Constitution.” ID at 2-3 (citing Office of 

Personnel Management v. Richmond, 496 U.S. 414, 416-17, 434 (1990)). 

Therefore, we DENY the petition for review.

¶14 Although the appellant has not clarified whether she intended to file a new 

appeal of OPM’s reconsideration decision regarding the actuarial reduction issue 

in filing her November 13, 2013 submission, her arguments on review pertain to 

the actuarial reduction issue, thereby indicating that she wishes to file an appeal 

of OPM’s September 23, 2013 reconsideration decision denying her request for 

actuarial reduction. IAF, Tabs 3, 11. Therefore, we FORWARD the appellant’s 

claim regarding the actuarial reduction of her retirement annuity to the Atlanta 

Regional Office for docketing as a new appeal of OPM’s September 23, 2013 

reconsideration decision. 7

¶15 As for the appellant’s argument on review that “nothing was done” 

regarding the petition for enforcement she filed regarding the administrative 

 7 We make no determination concerning the timeliness of this matter, which should be 

considered by the administrative judge in the first instance after proper notice of the 

appellant’s burden of proof.
8

judge’s June 6, 2013 initial decision, the record indicates that the appellant’s 

petition for enforcement was not docketed as a compliance matter due to an 

apparent oversight. Significantly, however, in his June 6, 2013 initial decision, 

the administrative judge did not award the appellant the relief she requested (i.e., 

the waiver of interest on the redeposit of her previously withdrawn retirement 

contributions), nor did the administrative judge decide the merits of the 

appellant’s request to pay the redeposit and interest via actuarial reduction from 

her retirement annuity. Instead, as explained above, the administrative judge 

affirmed OPM’s reconsideration decision denying the appellant’s request for the 

waiver of interest and ordered OPM to issue a reconsideration decision on the 

appellant’s request for actuarial reduction within 60 days of the date of the initial 

decision. ID at 3-4. Although OPM failed to comply with the 60-day time limit, 

it did issue a reconsideration decision on the actuarial reduction issue on 

September 23, 2013. PFR File, Tab 7 at 6-7. Under these circumstances, 

forwarding the appellant’s petition for enforcement to the regional office for 

docketing as a compliance appeal at this juncture would be a waste of judicial 

resources. Accordingly, we take no further action regarding the appellant’s 

petition for enforcement.

NOTICE TO THE APPELLANT REGARDING

YOUR FURTHER REVIEW RIGHTS

You have the right to request review of this final decision by the United 

States Court of Appeals for the Federal Circuit. You must submit your request to 

the court at the following address:

United States Court of Appeals

for the Federal Circuit

717 Madison Place, N.W.

Washington, DC 20439

The court must receive your request for review no later than 60 calendar days 

after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec. 27, 
9

2012). If you choose to file, be very careful to file on time. The court has held 

that normally it does not have the authority to waive this statutory deadline and 

that filings that do not comply with the deadline must be dismissed. See Pinat v. 

Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).

If you need further information about your right to appeal this decision to 

court, you should refer to the federal law that gives you this right. It is found in 

Title 5 of the United States Code, section 7703 (5 U.S.C. § 7703) (as rev. eff. 

Dec. 27, 2012). You may read this law as well as other sections of the United 

States Code, at our website, http://www.mspb.gov/appeals/uscode/htm. 

Additional information 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, and 11.

If you are interested in securing pro bono representation for your court 

appeal, you may visit our website at http://www.mspb.gov/probono for a list of 

attorneys who have expressed interest in providing pro bono representation for 

Merit Systems Protection Board appellants before the court. The Merit Systems

Protection Board neither endorses the services provided by any attorney nor 

warrants that any attorney will accept representation in a given case.

FOR THE BOARD:

Washington, D.C.

______________________________

William D. Spencer

Clerk of the Board