A recipient of an overpayment is without fault if he/she performed no act of commission or omission which resulted in the overpayment. The fact that the Office of Personnel Management may have been at fault in initiating an overpayment will not necessarily relieve the individual from liability.
(a) Considerations. Pertinent considerations in finding fault are—
(1) Whether payment resulted from the individual's incorrect but not necessarily fraudulent statement, which he/she should have known to be incorrect;
(2) Whether payment resulted from the individual's failure to disclose material facts in his/her possession which he/she should have known to be material; or
(3) Whether he/she accepted a payment which he/she knew or should have known to be erroneous.
(b) Mitigation factors. The individual's age, physical and mental condition or the nature of the information supplied to him/her by OPM or a Federal agency may mitigate against finding fault if one or more contributed to his/her submission of an incorrect statement, a statement which did not disclose material facts in his/her possession, or his/her acceptance of an erroneous overpayment.
Notes of Decisions
Boyd v. Off. of Pers. Mgmt., 851 F.3d 1309 (Fed. Cir. 2017).
“” 5 C.F.R. § 831.1402 . *1313 One of the considerations bearing on the finding of fault is whether the recipient “accepted a payment which he/she knew or should have known to be erroneous.”
Gordon v. Off. of Pers. Mgmt., 689 F. App'x 977 (Fed. Cir. 2017).
“” 5 C.F.R. § 831.1402 . One of the pertinent considerations when considering a finding of fault is whether the recipient of an overpayment “accepted a payment which he/she knew or should have known to be erroneous.”
James Patrick Pierotti v. Off. of Pers. Mgmt., 2016 MSPB 46 (MSPB 2016).
“5 C.F.R. § 831.1402 . Under the circumstances presented here, we find the appellant would have been expected to set aside the amount overpaid pending recoupment.”
Alan Tabakman v. Off. of Pers. Mgmt. (MSPB 2024).
· cites it 4× “5 C.F.R. § 831.1402 . Pertinent considerations in finding fault are (1) whether payment resulted from the individual’s incorrect but not necessarily fraudulent statement, which should have been known to be incorrect; (2) whether payment resulted from the individual’s failure to…”
James Patrick Pierotti v. Off. of Pers. Mgmt., 2016 MSPB 46 (MSPB 2016).
“5 C.F.R. § 831.1402 . Under the circumstances presented here, we find the appellant would have been expected to set aside the amount overpaid pending recoupment.”
Robert L. Britton v. Off. of Pers. Mgmt. (MSPB 2026).
· cites it 2× “5 C.F.R. § 831.1402 . The pertinent considerations in finding fault are as follows: (1) whether payment resulted from the individual’s incorrect but not necessarily fraudulent statement, which he should have known to be incorrect; (2) whether the payment resulted 7 from the…”
Elizabeth A. Emond v. Off. of Pers. Mgmt. (MSPB 2015).
· cites it 3× “5 C.F.R. § 831.1402 . The pertinent considerations in finding fault are as follows: (1) whether payment resulted from the individual’s incorrect, but not necessarily fraudulent statement, which she should have known to be incorrect; (2) whether payment resulted from the…”
Bailey v. Off. of Pers. Mgmt., 711 F. App'x 976 (Fed. Cir. 2017).
“5 C.F.R. § 831.1402 . Recovery is against equity and good conscience when it would cause the recipient financial hardship, the recipient can show she relinquished a valuable right or changed positions for the worse because of notice that such payment would be made or because of…”
Elizabeth Emond v. Off. of Pers. Mgmt. (MSPB 2022).
“DC-831M-12-0383-B-1, Remand File (RF), Tab 16, Remand Initial Decision (RID) at 2-3, but that the appellant was without fault because she performed no act of commission or omission which resulted in the overpayment, 5 C.F.R. § 831.1402 , and that recovery was against equity and…”
Lori Cline v. Off. of Pers. Mgmt. (MSPB 2023).
“¶8 Under 5 C.F.R. § 831.1402 (a), pertinent considerations in finding fault are whether the payment resulted from the annuitant’s incorrect but not necessarily fraudulent statement, which she should have known to be incorrect; whether payment resulted from the individual’s…”
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