Suzanne Porter was an auditor with the Department of Defense. She was successful in an appeal to the Merit Systems Protection Board in which she argued that her resignation during probation was involuntary. As a result the Board ordered up some 19 months of back pay. (Suzanne L. Porter v. MSPB, CAFC, 2006-3279, December 29, 2006)
The Defense Finance and Accounting Service of DOD complied with the MSPB order. However, DFAS informed Porter that they had overpaid her by $30,148 because the agency had failed to account for outside wages and unemployment payments that Porter received during her 19-month separation. The DFAS notice required that Porter repay within 30 days and explained the procedures for asking questions and for requesting a waiver of overpayment.
Ms. Porter filed a request for waiver with the agency within the one-month time limit. She got no response and after thirty days, the agency started garnishing her wages.
Porter then filed a petition for enforcement with the MSPB. The agency argued that Porter’s Board petition was untimely since it was not filed within 30 days of the DFAS notice of overpayment. The MSPB judge sided with the agency. Ms. Porter went to the federal circuit where she found a more sympathetic audience.
As the court stated, “…we conclude that the Board abused its discretion by failing to find good cause for the delay…. The agency’s…notice…provided instructions for requesting a waiver…and she diligently pursued that avenue of relief. However, DOD did not respond to the request…While a waiver proceeding before the agency is distinct from an enforcement proceeding, it was reasonable for Ms. Porter…to conclude that the need for recourse to the MSPB would not arise until and unless DOD denied her request for waiver.” (p. 4)
In short, the court reversed MSPB’s dismissal and remanded the case for a decision on the merits of Porter’s request for a waiver.
