Anna MILLER, Petitioner, v. OFFICE OF PERSONNEL MANAGEMENT, Respondent, 449 F.3d 1374

Opinion for the court filed by Circuit Judge BRYSON. Dissenting opinion filed by Circuit Judge DYK. BRYSON, Circuit Judge. Anna Miller, a retired federal employee, petitions this court for review of a decision of the Merit Systems Protection Board, Docket No. CH-0845-04-0285-I-1. In the matter on appeal, the Office of Personnel Management (“OPM”) ruled that Ms. Miller owed more than $8,000 in back premiums for coverage under the Federal Employees’ Group Life Insurance program (“FEGLI”). OPM sought to collect that sum by reducing the amount of the retirement annuity payments that Ms.

Miller received from the federal government under the Federal Employees’ Retirement System (“FERS”). She challenged the reduction by appealing to the Board and requesting that the Board adjudicate her claim that she should not have been required to pay the back premiums. The Board held that it lacked jurisdiction to consider the merits of her appeal. We affirm. I Ms. Miller worked as a registered nurse for the Department of Veterans Affairs in Danville, Illinois, until January 5, 1991. She was removed from her position because the agency determined that she was unable to perform her duties for medical reasons.

Despite the agency’s finding, OPM denied her application for disability retirement. She appealed that denial, but her appeal was unsuccessful. In November 2001, Ms. Miller applied for a “deferred or postponed” annuity under FERS. OPM reviewed her application and determined that she had been eligible for immediate retirement in January 1991 when she was terminated, because at that time she was 63 years old and had completed 16 years of service. See 5 U.S.C. § 8412(c). Based on its finding as to her eligibility date, OPM determined that Ms.

Miller was entitled to a retirement annuity retroactive to January 6, 1991, the day after her employment was terminated. OPM calculated the amount of annuity benefits that had accrued between January 6, 1991, and March 30, 2002, to be $98,823.67. On April 2, 2002, OPM sent Ms. Miller an annuity adjustment payment of $78,774.71, which represented the accrued annuity benefits less certain deductions. After determining that Ms.

Miller was entitled to a retroactive annuity payment, OPM sent her a letter in which it asked her to make an election for basic life insurance coverage, choosing one of three options: 75% reduction in coverage, 50% reduction in coverage, and no reduction in coverage. The letter advised her that there would be no retroactive premium charge if she selected the 75% reduction option, but that the 50% reduction and no reduction options would give rise to retroactive premium charges of $2527.33 and $8372.10, respectively.

OPM'stated that it was required to “start the collection of premiums on your annuity commencing date,” which was in 1991 after the retroactive annuity determination. Ms. Miller selected the “no reduction” option, but she returned the form to OPM with a letter in which she contended that she should not be charged life insurance premiums for the period 1991 through 2002, since she had not had life insurance coverage during that period. An exchange of letters between OPM and Ms. Miller followed. OPM ultimately decided that Ms.

Miller was required to pay the premiums for the period 1991 to 2002 and that the retroactive premium obligation would be treated as an overpayment of her retroactive annuity award. OPM advised Ms. Miller that it would collect the overpayment through deductions from future annuity payments. Ms. Miller also requested that OPM waive collection of the overpayment, but OPM refused to do so. Ms. Miller requested reconsideration, but OPM affirmed its initial decision. Ms. Miller appealed OPM’s decision to the Merit Systems Protection Board.

She challenged OPM’s determination that when it retroactively awarded her a retirement annuity and she elected full life insurance coverage, it was required by 5 U.S.C. § 8707(b)(1) to charge her for premiums retroactive to 1991. In particular, she argued that because she did not enjoy federal life insurance protection between 1991 and 2002, she should not have to make a retroactive payment of the premiums for insurance coverage during that period. She also appealed from OPM’s refusal to waive recovery of the overpayment. The administrative judge who was assigned to the case disagreed with Ms.

Miller and held that OPM had reasonably-construed 5 U.S.C. § 8707(b)(1) to require it to charge her for insurance premiums beginning as of the date from which her retroactive annuity payments began to accrue. The administrative judge rejected Ms. Miller’s argument that OPM’s

interpretation of the statute was at odds with its regulations governing the payment of life insurance premiums, which require that premiums be withheld from the date that an “annuity begins.” 5 C.F.R. § 870.404(a)-(b). The administrative judge concluded that although Ms. Miller’s annuity payments began in 2002, her actual entitlement to the annuity was retroactive to the date she was separated from employment in 1991 and that “her annuity is deemed to have begun in January 1991, notwithstanding the fact that the annuity payments were first tendered to her over ten years later.” As to Ms.

Miller’s request for waiver of the back premium payments, the administrative judge held that Ms. Miller had not shown that she was entitled, under 5 C.F.R. § 845.301, to a waiver of OPM’s right to recover the overpayment. With respect to Ms. Miller’s challenge to the amount of the overpayment, the administrative judge held that the Board did not have jurisdiction to review OPM’s determination as to that issue. The administrative judge noted that by statute, 5 U.S.C. § 8461(e), individuals may appeal to the Board from actions affecting their right to retirement benefits under FERS.

However, the administrative judge ruled that because FERS is codified in

chapter 84 of title 5 of the United States Code, while the FEGLI program is codified in a different

chapter —

chapter 87 — OPM’s rulings regarding FEGLI benefits and coverage are not governed by the provisions of the FERS statute. On its own motion, the full Board reopened the case and held that it had no jurisdiction over Ms. Miller’s challenge to the overpayment.

Because it concluded that the overpayment in this case “resulted from a change in the appellant’s life insurance coverage and not from anything related to the computation of her retirement annuity,” the Board held that it “lacks jurisdiction over issues regarding the existence and amount of the overpayment.” With respect to the portion of the appeal in which Ms. Miller sought a waiver of the repayment obligation, however, the Board held that it did have jurisdiction. On that issue, the Board concluded that because Ms.

Miller had received her overpayment knowing that it was subject to OPM’s claim for an additional premium payment, waiver of the repayment obligation was not required. Accordingly, the Board upheld OPM’s decision in part and dismissed the appeal in part for lack of jurisdiction. Ms. Miller seeks review by this court. II The jurisdiction of the Merit Systems Protection Board is confined to those matters assigned to it by statute, rule, or regulation. See Meeker v. Merit Sys. Prot. Bd, 319 F.3d 1368, 1374 (Fed. Cir.2003); Schmidt v. Dep’t of the Interi-or, 153 F.3d 1348, 1356 (Fed.Cir.1998); 5 U.S.C. § 7701(a).

The Board has jurisdiction over appeals arising from OPM’s administration of the Federal Employees’ Retirement System Act (“FERSA”), 5 U.S.C. §§ 8401-79, but it does not have jurisdiction over appeals arising from OPM’s administration of the Federal Employees’ Group Life Insurance Act (“FEGLIA”), 5 U.S.C. §§ 8701-16.

The jurisdictional provision that governs review of disputes concerning annuity payments made under FERSA, 5 U.S.C. § 8461(e)(1), provides that, subject to an exception not applicable here, “an administrative action or order affecting the rights or interests of an individual or of the United States under the provisions of [FERSA] administered by [OPM] may be appealed to the Merit Systems Protection Board under procedures prescribed by the Board.” The jurisdictional provision that governs review of disputes concerning FEGLIA, 5 U.S.C. § 8715, provides that “[t]he district courts of the United States have original jurisdiction, concurrent with the United States Court of Federal Claims, of a civil action or claim against the United States founded on [FEGLIA].” The question in this case is whether Ms.

Miller’s claim may be characterized as a challenge to an order affecting her rights under FERSA, as she contends, or whether it should be characterized as a claim founded on FEGLIA, as the Board held and as the Board and the United States argue in this appeal. We conclude that the dispute is properly characterized as one founded on FEGLIA, and that jurisdiction to review the overpayment determination lay in the district court or the Court of Federal Claims, not in the Merit Systems Protection Board. The dispute on the merits in this case is whether Ms.

Miller should be required to make premium payments for the period 1991 to 2002, during which she was not receiving a retirement annuity but for which she was later awarded retroactive annuity payments. OPM’s decision that she is required to make those premium payments was based on a construction of 5 U.S.C. § 8707(b) — a provision outside of the FERS laws — as Ms. Miller acknowledges. Ms. Miller’s sole quarrel with OPM is that she disagrees with its assertion that the provisions of FEGLIA require it to deduct retroactive payments from her retirement annuity.

She supports her arguments on the merits with references to various provisions of FEG-LIA and corresponding regulations. If Ms. Miller’s proposed construction of FEGLIA is correct, she will not have to make the back premium payments. If OPM’s construction is correct, she will. The resolution of the dispute in this case thus depends on an

interpretation of FEG-LIA. Put another way, Ms. Miller’s claim to have her annuity payments restored to their full, non-offset amount is “founded” on FEGLIA within the meaning of FEG-LIA’s review provision, 5 U.S.C. § 8715. While the mechanism for collecting the overpayment was through a reduction in Ms. Miller’s annuity payments, the order requiring that reduction does not “affect [her] rights or interests” under FERS, within the meaning of the FERS review provision, 5 U.S.C. § 8461(e)(1). That is because the reduction in her annuity payments was merely the mechanism for recovering funds that OPM determined Ms.

Miller owed under FEGLIA; the reduction was not based on any decision regarding a substantive right or interest under FERS. The Board has consistently held that, when OPM seeks to offset an employee’s salary or retirement benefits to collect a debt, the Board does not have jurisdiction over the merits of the underlying dispute that gave rise to the debt. See, e.g., Ramirez v. Dep’t of the Army, 86 M.S.P.R. 211, 213 (2000); Lary v. Office of Pers. Mgmt., 65 M.S.P.R. 291, 298-99 (1994), rev’d on other grounds, King v. Merit Sys. Prot. Bd., 105 F.3d 635 (Fed.Cir.1997); Malone v. Office of Pers.

Mgmt., 52 M.S.P.R. 655, 657 (1992); Lashley v. Office of Pers. Mgmt., 45 M.S.P.R. 360, 365 (1990). In Campbell v. Office of Personnel Management, 90 M.S.P.R. 68 (2001), a case analogous to this one, an annuitant’s decision to change his life insurance coverage resulted in an overpayment of his CSRS annuity, which OPM recovered by a reduction in his annuity payments. The annuitant argued, as Ms. Miller argues here, that OPM’s retroactive assessment of premiums “would be collecting payments for coverage [he] did not have.” Id. at 70.

The Board dismissed the case for lack of jurisdiction because “the overpayment resulted, not from anything related to the computation of the appellant’s retirement annuity, but rather from a change in the terms of his life insurance coverage and premiums therefor, as interpreted by OPM, an administrative action not covered by [the CSRS statutes].” Id. at 71. Similarly here, Ms. Miller’s overpayment is due to OPM’s assessment of her rights and responsibilities under the FEGLIA statutes, not the FERS statutes.

Although we are not bound by these decisions of the Board, they are consistent with our decision in Lewis v. Merit Systems Protection Board, 301 F.3d 1352 (Fed.Cir.2002). In that case, we held that an annuitant’s challenge to OPM’s refusal to permit him to purchase life insurance arose under FEGLIA, and was not within the Board’s jurisdiction over appeals from decisions of OPM in administering the federal retirement systems. The underlying decision of OPM in this case is similar to the underlying decision in Lewis: OPM has decided that Ms.

Miller is entitled to purchase full life insurance coverage, but in order to do so she must pay the back premiums to 1991. That decision, like the decision in Leivis, is a decision as to the scope of Ms. Miller’s legal rights under FEGLIA, even though, as in Lewis, OPM would collect the additional premiums, if they are ultimately determined to be due, by reducing the amount of Ms. Miller’s annuity payments. In contrast to the Board’s approach, Ms.

Miller argues that any reduction in a retiree’s FERS annuity payments “affect[s] ... the rights or interests” of the annuitant under FERSA, and that the merits of the dispute that led to the reduction are therefore reviewable by the Board. That theory, however, would give the Board very broad authority over a wide variety of substantive claims simply because of the mechanism used to collect the obligations stemming from those claims. We do not think that is what Congress intended. The approach that the Board has taken in such cases makes more sense of the statutory scheme. The reduction in Ms.

Miller’s annuity payments was merely one of several methods OPM could have used to recover the claimed back insurance premiums. Because recovering an overpayment by an offset against annuity payments, as in this case, is both more efficient and often less burdensome than other means of collection, OPM often employs such offset mechanisms to collect annuitants’ debts. It would be curious to attribute to Congress the intention to direct review of a decision pertaining to the underlying obligation to different forums depending solely on the method used to collect the obligation.

As the Board points out in its brief, if 5 U.S.C. § 8461(e)(1) were interpreted to give the Board jurisdiction in every case in which an annuity payment is reduced in order to recover an asserted debt owed by the annuitant, the Board would assume the task of deciding the merits of a variety of disputes in different substantive areas, such as student loan obligations and tax law, that are far afield from the Board’s expertise and are not subjects that Congress could plausibly have intended to assign to the Board for adjudication. The flaw in Ms.

Miller’s argument that any administrative offset that reduces a retiree’s annuity falls within the Board’s jurisdiction under

section 8461(e)(1) is well illustrated by an examination of the administrative offset provisions of the Debt Collection Act, 31 U.S.C. § 3716. In that Act, Congress authorized federal agencies (and even state instrumentalities under certain conditions) to collect a wide variety of claims by administrative offset. The scheme envisioned under the Act is for the collecting agency to provide a review mechanism through which to address the substance of the claim.

If the claim is upheld, the agency may seek to collect it through an administrative offset, including an offset against federal annuity payments. 31 C.F.R. § 901.3(d). In such cases, the Office of Personnel Management is responsible for ensuring that the annuitant has had the proper due process procedures within the claimant agency, see 31 C.F.R. § 901.3(b)(4); 5 C.F.R. § 831.1803, and the failure to comply with those procedures can be appealed to the Board. See Ramirez, 86 M.S.P.R. at 214.

But the Board has held that it does not have the authority to address the merits of the underlying claims, which can arise from an infinite variety of obligations that employees can incur during the course of their employment. See, e.g., Johnson v. Office of Pers. Mgmt., 97 M.S.P.R. 193, 196-97 (2004) (no review of the merits of an administrative offset sought by the Office of Worker Compensation Programs); Cebzanov v. Office of Pers. Mgmt, 96 M.S.P.R. 562, 566 (2004) (no review of the merits of an administrative offset sought by Internal Revenue Service).

Moreover, the government-wide regulations that governed Debt Collection Act offsets against employees’ retirement funds, until the regulations were recently revised, provided that the setoff procedures did not “authorize the OPM or the MSPB to review the merits of the requesting agency’s determination with respect to the amount and validity of the claim.” 4 C.F.R. § 102.4 (2000); see also 5 C.F.R. § 831.1806(d)(3)(l) (in arranging setoffs of debts against employee retirement funds, OPM has no authority to review the merits of the claim against the employee).

Thus, we think it clear that under the Debt Collection Act Congress envisioned that the substantive claims giving rise to the administrative offset would be adjudicated in the respective agencies, not before the Board. The same principle applies to the offset at issue in this case. As in the case of setoffs authorized by the Debt Collection Act, any reduction in the amount of a former employee’s annuity payments can in a broad sense be said to affect the former employee’s interests under FER-SA, since an employee has an “interest” in receiving an annuity.

The operation of the Debt Collection Act makes clear, however, that Congress did not intend for the term “administrative action or order affecting the rights or interests of an individual ... under [FERSA]” in

section 8461(e)(1) to encompass any order that would have the effect of reducing the amount of an annuity, either on one occasion or over a period of time. Instead, we agree with the Board that the reference to “rights or interests” in

section 8461(e)(1) limits the Board to the adjudication of substantive claims created by FERSA. Contrary to Ms. Miller’s contention,

section 8461(e)(1) does not extend the Board’s jurisdiction to encompass review of “all attempts to recover payments from a retiree’s annuity benefits — regardless of the reason for the recovery or the source of the overpayment.” Ms. Miller notes that decisions whether to invoke equitable waiver of the government’s right to recover overpayments, see 5 U.S.C. § 8470(

b) and 5 C.F.R. § 845.301, are always renewable by the Board, even though the underlying obligation may not be related to a right or obligation created by FERSA. See Mitchell v. Office of Pers. Mgmt., 97 M.S.P.R. 566 (2004). She argues that it would be highly inefficient to have questions relating to the substantive obligation reviewed in the Court of Federal Claims or in a district court, but to have the issue of the waiver of overpayments reviewed by the Merit Systems Protection Board, since it is possible that both claims will arise in connection with a single overpayment dispute.

The possibility that a different regime would be more efficient does not justify our rejection of the system of review that Congress put into place, if we are persuaded that Congress has spoken clearly on the matter, as we are in this case. In any event, the specific concern raised by Ms. Miller is not implicated in this case, as the Board has already determined that OPM did not err by declining to waive the reimbursement requirement, and Ms. Miller has not sought further review of that issue.

Therefore, we need not decide whether, in a case in which an annuitant challenges the merits of OPM’s decision to offset her annuity to collect a debt external to her rights under the statutes creating the annuity and also seeks review of OPM’s decision not to waive the debt, the annuitant would have to bring those claims in two different forums or whether the court addressing the overpayment decision could address the waiver issue as a matter of supplemental or pendent jurisdiction. See 28 U.S.C. § 1367; Trek Leasing, Inc. v. United States, 62 Fed.Cl. 673 (2004).

If supplemental or pendent jurisdiction is available in such cases, the burden of requiring parties to litigate the two issues in different forums would, of course, be eliminated. In

summary, Ms. Miller’s challenge to the merits of the government’s overpayment claim is not within the scope of 5 U.S.C. § 8461(e)(1), but falls instead under

section 8715, which requires that her claim be brought either in a federal district court or in the Court of Federal Claims. We therefore affirm the Board’s decision dismissing her claim that OPM erred in assessing an overpayment against her. Each party shall bear its own costs for this appeal. The court wishes to express its appreciation to Catherine E. Stetson, Esq., who undertook to represent Ms. Miller pro bono at the court’s invitation and who submitted a brief on behalf of Ms. Miller. . When the government-wide regulations were revised and recodified at 31 C.F.R.

Part 900, the provision referring to OPM and the MSPB was omitted, but the promulgating agencies’ contemporaneous comments make clear that the change was not meant to have substantive effect. See 62 Fed.Reg. 68,476, 68,482 (Dec. 31, 1997) (proposed rule); 65 Fed.Reg. 70,390, 70,392 (Nov. 22, 2000) (explaining reason for change).