Luisa Navarro v. Office of Personnel Management

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
LUISA NAVARRO,
Petitioner
v.
OFFICE OF PERSONNEL MANAGEMENT,
Respondent
______________________
2025-1612
______________________
Petition for review of the Merit Systems Protection
Board in No. NY-0845-23-0074-I-1.
______________________
Decided: December 8, 2025
______________________
LUISA NAVARRO , Carolina, Puerto Rico, pro se.
BLAKE W. COWMAN , Commercial Litigation Branch,
Civil Division, United States Department of Justice,
Washington, D.C., for respondent. Also represented by
TARA K. H OGAN , PATRICIA M. M CCARTHY, BRETT A.
SCHUMATE .
______________________
Before LOURIE, PROST, and CUNNINGHAM, Circuit
Judges.
Case: 25-1612 Document: 27 Page: 1 Filed: 12/08/2025

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NAVARRO V. OPM 2
PER C URIAM.
Luisa Navarro petitions for review of a final decision of
the Merit Systems Protection Board (“the Board”), which
denied her petition for review and upheld the United
States Office of Personnel Management’s (“OPM’s”)
findings regarding its entitlement to collect an
overpayment of Navarro’s Federal Employees’ Retirement
System (“FERS”) disability retirement annuity benefits.
See S.A. at 18–24 (“Final Decision”); S.A. at 1–17 (“Initial
Decision).1 For the following reasons, we affirm.
BACKGROUND
In June 2019, Navarro applied for retirement under
FERS. Initial Decision, S.A. at 2. In January 2020, OPM
informed her via letter that her retirement had been
approved and converted to a disability retirement. Id.
OPM also informed her that it could not start making
annuity payments until it received confirmation that she
had applied for Social Security Administration (“SSA”)
disability insurance benefits, and that she must notify
OPM of any future amount and effective date of any SSA
disability insurance benefits award. Id. The letter
specifically stated that she could notify OPM of any
benefits by “sending [OPM] a photocopy of [the SSA
disability insurance] award notice or [the SSA’s] statement
showing the monthly benefit amount and the effective date
they determined [her] eligibility began.” S.A. at 31.
In April 2022, Navarro was approved for SSA disability
benefits with an entitlement date of November 1, 2019. Id.
at 2; see S.A. at 36, 47. Navarro testified that, about a week
later, she called OPM and spoke with someone by the name
of “Anna S.” Initial Decision, S.A. at 2. Navarro explained
that she told Anna S. about the SSA award and asked what
steps she needed to take to avoid being overpaid, as she had
1 S.A. refers to the Supplemental Appendix filed with
the Informal Response Brief.
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NAVARRO V. OPM 3
previously been overpaid. Id. According to Navarro, she
also asked Anna S. to take a close look at her file. Id. at 3.
In August 2022, after learning of Navarro’s entitlement
to Social Security benefits, OPM sent Navarro a letter
advising her that it was required to reduce her FERS
annuity by the amount she was entitled to from the SSA.
Initial Decision, S.A. at 3 (citing S.A. 36). As a result, it
reduced her monthly FERS disability annuity amount
moving forward and explained that it would also begin
collecting its overpayment for the period beginning in
November 2019 running through July 2022. Id. OPM’s
overpayment amount totaled $40,749 for that period, and
OPM explained that it would recover that amount in
monthly installments deducted from her FERS annuity.
Id. (citing S.A. at 38).
Navarro sought reconsideration of OPM’s decision,
arguing that OPM mismanaged her retirement income and
that she was misinformed by her conversation with Anna
S. S.A. at 43. But in February 2023, OPM affirmed its
initial decision that Navarro was overpaid FERS annuity
benefits. Initial Decision, S.A. at 3. OPM explained that it
did not adjust Navarro’s annuity until August 2022 “after
a SSA match,” i.e., an automated cross-check against SSA
data, which resulted in the overpayment. Id.
Navarro appealed OPM’s decision to the Board. Id. An
administrative judge (“AJ”) affirmed OPM’s decision. Id.
at 9. In doing so, the AJ determined that (1) OPM proved
the existence and amount of the overpayment; (2) Navarro
failed to prove entitlement to a waiver of the overpayment
because she knew of and was obligated to set aside the
overpayment; and (3) Navarro did not show recovery was
against equity and good conscience because the
circumstances were not egregious. Id. at 4–7. The full
Board denied Navarro’s petition for review and affirmed
the AJ’s decision, adopting the initial decision as its final
decision. Final Decision, S.A. at 19.
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NAVARRO V. OPM 4
Navarro appeals. We have jurisdiction pursuant to
5 U.S.C. § 7703(b)(1) and 28 U.S.C. § 1295(a)(9).
D ISCUSSION
We may only set aside an action of the Board if it was
“(1) arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law; (2) obtained without
procedures required by law, rule, or regulation having been
followed; or (3) unsupported by substantial evidence.”
McIntosh v. Dep’t of Def., 53 F.4th 630, 638 (Fed. Cir. 2022)
(citation omitted). Moreover, “[w]e review the Board’s legal
decisions de novo and its findings of fact for substantial
evidence.” Id. In doing so, we construe Navarro’s papers
liberally, as she is a pro se litigant. See Erickson v. Pardus,
551 U.S. 89, 94 (2007) (per curiam).
A FERS disability annuity must be reduced by the
amount of any Social Security disability benefits a FERS
retiree receives. 5 U.S.C. § 8452(a)(2); 5 C.F.R.
§§ 844.302(b)(2), (c)(2). OPM is required to prove, by a
preponderance of the evidence, the existence and amount
of a FERS disability annuity overpayment. 5 C.F.R.
§ 845.307(a). Navarro appears to dispute only that she was
entitled to a waiver of the overpayment, not the
overpayment itself. See Navarro Op. Br. at 4. Accordingly,
we review only the Board’s determination on waiver.
Repayment of FERS overpayments may be waived
when, in OPM’s judgment, the individual “is without fault
and recovery would be against equity and good conscience.”
5 U.S.C. § 8470(b); see also 5 C.F.R. § 845.301 et seq; Ret.
& Ins. Serv., U.S. Off. Pers. Mgmt., Policy Guidelines on
the Disposition of Overpayments under the Civil Service
Retirement System and the Federal Employees’ Retirement
System (1995) (“Policy Guidelines”).2 The AJ found that
2 OPM’s published policy guidelines interpreting its
regulations regarding its Civil Service and Federal
Employee’s Retirement Systems.
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NAVARRO V. OPM 5
Navarro did not meet this standard, applying the “Set-
Aside Rule” from the Policy Guidelines. S.A. at 5–6.
“Under the Set-Aside Rule, if [an] individual suspected or
knew that he or she had received an overpayment (and
therefore had an obligation to set aside the overpaid funds),
the individual is not eligible for a waiver under the ‘equity
and good conscience’ standard and would be entitled to
relief only under the more exacting ‘exceptional
circumstances’ standard.” Boyd v. Off. of Pers. Mgmt.,
851 F.3d 1309, 1313–14 (Fed. Cir. 2017).
The Board’s affirmance of the AJ’s waiver finding
under the Set-Aside Rule was supported by substantial
evidence. The record indicates that Navarro was notified
of her obligation to set aside any money received from SSA
that would constitute a duplicate disability payment.
Initial Decision, S.A. at 5. Specifically, Navarro was
informed by letter that because “FERS disability benefits
usually begin before the claim for [SSA] benefits is fully
processed,” “[SSA] checks will be needed to pay OPM for
the reduction which should have been made in the FERS
annuity.” S.A. at 32. Furthermore, Navarro’s phone call
with OPM’s Anna S. shows that she, at a minimum,
suspected she was receiving overpayments from OPM.
Initial Decision, S.A. at 6 (indicating Navarro testified that
she called OPM because she wanted to avoid another
overpayment issue).
The AJ’s next finding, that there were no exceptional
circumstances to justify waiver, was also supported by
substantial evidence. See id. at 7. Exceptional
circumstances “involve extremely egregious errors or
delays by OPM.” Policy Guidelines § C.4; see also S.A. at
72. The AJ found that OPM’s notification of overpayment
to Navarro within four months of her receiving SSA
benefits was not so egregious as to warrant waiver. Initial
Decision, S.A. at 7. Indeed, the record indicates that
Navarro never provided a copy of her SSA award to OPM,
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NAVARRO V. OPM 6
id., as she was told she was required to in a letter she
received. S.A. at 32.
Navarro’s arguments do not persuade us otherwise.
She argues that the AJ erred in not allowing the record of
the phone conversation between Navarro and Anna S. to
enter the record. Navarro Op. Br. at 2–3, 8. But the AJ
did not abuse her discretion in excluding this testimony
because she credited Navarro’s account of the conversation
in making her conclusions––there was thus no need for the
testimony of Anna S. See Higgins v. Dep’t of Veterans Affs.,
955 F.3d 1347, 1357 (Fed. Cir. 2020) (finding no abuse of
discretion where the AJ excluded a duplicative witness);
see also S.A. at 57–58 (excluding testimony of Anna S. as
irrelevant because Navarro could testify as to the
telephone conversation).
CONCLUSION
We have considered the remaining of Navarro’s
arguments and find them unavailing. For the foregoing
reasons, we affirm the Board’s denial of Navarro’s petition
for review and affirmance of the AJ’s decision.
AFFIRMED
COSTS
No costs.
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