[00:00:42] Speaker 03:
Next case is Brittany Bain versus the Office of Personnel Management.

[00:01:10] Speaker 03:
2016-13-33.

[00:01:11] Speaker 03:
Mr. Brady, when you are ready.

[00:01:30] Speaker 01:
Thank you, Your Honor, and may it please the Court.

[00:01:34] Speaker 01:
The government in this case failed to credit and failed to refute

[00:01:39] Speaker 01:
Britney Bain's substantial evidence that she was not at fault for the overpayment.

[00:01:47] Speaker 03:
Her neurologist's evidence was that... It isn't a question of whether she had substantial evidence.

[00:01:53] Speaker 03:
It's a question whether the OPM had substantial evidence.

[00:01:59] Speaker 01:
Your Honor, under the OPM's guidelines, the burden of proof shifts

[00:02:04] Speaker 01:
Once OPM has proved by preponderance of evidence that an overpayment occurs, the burden of proof shifts to the recipient to provide substantial evidence showing that the recipient was not at fault.

[00:02:20] Speaker 01:
The burden then shifts back to OPM to refute the substantial evidence or to show that the evidence was not substantial.

[00:02:29] Speaker 02:
That's the burden at the board.

[00:02:32] Speaker 02:
Your burden now is to show us that there's not substantial evidence for the board's decision.

[00:02:37] Speaker 02:
I may agree with you that you presented substantial evidence to the board, and I may have ruled in your favor at the board, but I'm constrained from readdressing that on that standard.

[00:02:49] Speaker 02:
We have to look at whether the board's determination lacks substantial evidence.

[00:02:53] Speaker 02:
Looking at the record as a whole, Your Honor.

[00:02:56] Speaker 02:
Yeah, absolutely.

[00:02:58] Speaker 02:
But the board made conclusions

[00:03:00] Speaker 02:
a fact about her ability to do certain things that seem to be supported by the record.

[00:03:06] Speaker 02:
And again, I may, if I was balancing them out, have ruled for you.

[00:03:10] Speaker 02:
But I don't see how that the board's factual conclusions are not supported by substantial evidence.

[00:03:17] Speaker 01:
The lay opinion of an administrative law judge regarding what Brittany Bain could or couldn't do does not rise to the level of substantial evidence

[00:03:29] Speaker 01:
when compared to the evidence from her long-term treating neurologist that based on the substantial lesion burden in her brain, she could not have, or it would not be surprising that she would misunderstand the instructions that she received from 2005 and 2006.

[00:03:48] Speaker 01:
That, without more, the statement that it would not be surprising that she would misunderstand those instructions based on

[00:03:59] Speaker 01:
the physical findings of the substantial lesion burdens in her brain and her expert opinion that based on those lesion burdens and the concomitant significant cognitive defects.

[00:04:14] Speaker 02:
Again, I think you have a very sympathetic case.

[00:04:17] Speaker 02:
I mean, if I were the board judge, I may have come out differently, but the problem is you're arguing the evidence in favor of you.

[00:04:24] Speaker 02:
The board judge looked at evidence against you in that

[00:04:29] Speaker 02:
Despite her condition, she was able to live on her own.

[00:04:34] Speaker 02:
She was able to handle the details of her divorce and the like.

[00:04:36] Speaker 02:
And that, to me, seems substantial evidence to support the decision, the board's decision, that she was not incapable of doing what she was supposed to do.

[00:04:47] Speaker 02:
Isn't that your real problem is that there's competing evidence.

[00:04:52] Speaker 02:
And again, it's not for us to rescale it.

[00:04:57] Speaker 02:
Even if the scale is like this,

[00:04:59] Speaker 02:
They still win, as long as it's something that a reasonable person, I think, could come up with that conclusion.

[00:05:05] Speaker 01:
Your Honor, as that burden is defined in OPM's guidelines, the burden to overcome, written in substantial evidence, must be more than just the same amount of evidence.

[00:05:22] Speaker 01:
It must be significantly more

[00:05:25] Speaker 01:
in order to refute or show that her evidence was not substantial.

[00:05:31] Speaker 01:
It would take me a moment to find that citation.

[00:05:35] Speaker 02:
No, I get it.

[00:05:35] Speaker 02:
But that's not the standard we're applying.

[00:05:37] Speaker 02:
We're applying the standard of whether the board's factual findings against your client are supported by substantial evidence.

[00:05:46] Speaker 04:
Is the board's factual finding that she did not present substantial evidence?

[00:05:52] Speaker 04:
Was that the board's factual finding?

[00:05:53] Speaker 01:
No, it was not, Your Honor.

[00:05:55] Speaker 01:
The board's finding was that the evidence had been refuted or overcome by the speculation of the administrative law judge that, based on the fact that she could live on her own and participated in her divorce, that she could ignore

[00:06:11] Speaker 01:
the neurologist's expert opinion, that it would not be surprising that she would misunderstand the instructions she had received six years earlier.

[00:06:20] Speaker 04:
Is that your interpretation of what the judge did below?

[00:06:24] Speaker 04:
Because I didn't see in the opinion where she said it was okay for her to ignore any evidence.

[00:06:30] Speaker 01:
She had the evidence in front of her, but she did ignore it.

[00:06:34] Speaker 01:
Moreover, the AL judge's speculation that

[00:06:40] Speaker 01:
Brittany could live on her own is contradicted by the social security determination that she is entitled to social security disability benefits.

[00:06:50] Speaker 01:
Because under the social securities blue book, which contains the criteria for determining disability for multiple sclerosis, living on your own is perfectly consistent with

[00:07:07] Speaker 01:
disability from multiple sclerosis.

[00:07:09] Speaker 01:
The question is, what happens when the symptoms flare up because of stress or fatigue?

[00:07:17] Speaker 01:
And in Brittany Bain's case, her neurologist said that she has the highly inflammatory disease, and because of her condition, she advised that Brittany be in an environment that was more supportive than the

[00:07:33] Speaker 01:
current environment she was in.

[00:07:34] Speaker 03:
He didn't make a diagnosis as of the particular time, 2012, which was when her duty arose.

[00:07:44] Speaker 01:
She made her diagnosis with respect to 2014, which was when OPM caught up with Brittany Bain, your honor.

[00:07:51] Speaker 01:
It would not be surprising that she made mistakes and failed to file before OPM caught up with her in 2014.

[00:08:01] Speaker 01:
That was, I believe, the intent of what she was saying.

[00:08:04] Speaker 01:
But the blue book determination that social security used to determine that Brittany Bain was disabled under social security criteria can be referred to by this court because the fact that Brittany qualified for social security disability is what prompted the overpayment in the first place.

[00:08:26] Speaker 01:
And I'll save the rest of my time for rebuttal.

[00:08:30] Speaker 03:
We'll do that.

[00:08:31] Speaker 03:
Ms.

[00:08:32] Speaker 03:
Rose, good morning.

[00:08:51] Speaker 00:
Thank you, Your Honors.

[00:08:52] Speaker 00:
May it please the Court, the Board's decision should be affirmed because the Board's findings against Ms.

[00:08:57] Speaker 00:
Bain are supported by substantial evidence

[00:08:59] Speaker 00:
I'd like first to address Judge Stoll's question regarding whether or not the administrative judge found that there was substantial evidence.

[00:09:08] Speaker 00:
The administrative judge found, and this is at Supplemental Appendix, page 6, that Ms.

[00:09:13] Speaker 00:
Bain did not meet her burden of showing substantial evidence that she was entitled to a waiver, and that was on both elements, the without fault element, and that a waiver would be against equity and good conscience.

[00:09:25] Speaker 00:
What petitioners are arguing here is that OPM failed to refute substantial evidence, but again, the board found that substantial evidence was not met in the first instance.

[00:09:37] Speaker 00:
And as the court noted, the standard here is whether or not the administrative judge's decision is supported by substantial evidence.

[00:09:48] Speaker 00:
The board properly considered the record as a whole presented by

[00:09:52] Speaker 00:
by Ms.

[00:09:53] Speaker 00:
Bain and found that there was not substantial evidence on either element while we are sympathetic to Ms.

[00:10:00] Speaker 00:
Bain's medical condition and acknowledge that.

[00:10:08] Speaker 02:
I understand we're under a substantial evidence review and we may not be able to do anything, but this seems incredibly stingy of opium and unfair.

[00:10:17] Speaker 02:
I mean, this woman has a debilitating condition

[00:10:21] Speaker 02:
She may have known at one time that she should have not kept this money.

[00:10:25] Speaker 02:
She said that, honestly.

[00:10:27] Speaker 02:
But it was three years later.

[00:10:29] Speaker 02:
Her disease had progressed.

[00:10:31] Speaker 02:
She was undergoing what by all accounts is a stressful divorce.

[00:10:35] Speaker 02:
I mean, that seems to be a perfectly logical explanation for why she didn't recall that she had to not keep this money.

[00:10:46] Speaker 02:
I mean, I don't understand why OPM in good conscience didn't waive this.

[00:10:51] Speaker 00:
I think what Your Honor has comments go to, and we agree that this is a sympathetic petitioner.

[00:10:58] Speaker 00:
But all of that goes to whether or not she was without fault in causing the overpayment.

[00:11:03] Speaker 00:
But that's, of course, only factor one.

[00:11:04] Speaker 00:
The second factor is, would recovery be against equity and good conscience?

[00:11:09] Speaker 00:
Here, Ms.

[00:11:10] Speaker 00:
Bain is relying on the detrimental reliance factor.

[00:11:12] Speaker 00:
She's saying that she used the overpayment to negotiate terms in her divorce differently than she would have done had she not received the overpayment.

[00:11:21] Speaker 00:
But that's not supported by the record, including the contemporaneous divorce records that Ms.

[00:11:26] Speaker 00:
Bain submitted.

[00:11:27] Speaker 00:
Her specific argument is that had she known that she had received an overpayment, she would have accepted her husband's offer to assume liability for the couple's joint credit card debt of about $18,000.

[00:11:41] Speaker 00:
And in return, she would have taken over the mortgage of the home.

[00:11:46] Speaker 00:
However, at the time in 2013, in her own declaration to the

[00:11:50] Speaker 00:
Washington State Court, she stated that she rejected this offer because the mortgage was currently about $230,000, whereas the property was only assessed at $144,000.

[00:12:04] Speaker 00:
So she was rejecting it because she believed that the mortgage was about $86,000 more than the assessed value.

[00:12:18] Speaker 00:
The petitioner characterizes in his vein as assuming the entire liability for the $18,000 credit card debt.

[00:12:26] Speaker 00:
That is not quite correct because while she was the one making the payments, her ex-husband was ordered to make payments of $250 a month.

[00:12:37] Speaker 00:
for 54 months in order to cover his half of that joint credit card liability.

[00:12:41] Speaker 00:
So here, Ms.

[00:12:42] Speaker 00:
Bain was able to use the OPM overpayment funds to pay off more quickly than she otherwise would have been able to a debt with a 9.9% annual interest rate.

[00:12:54] Speaker 00:
And while she is obligated to return those funds that she was not entitled to by statute to OPM, she's able to do so with a 0% interest rate.

[00:13:06] Speaker 00:
If the court has no further questions.

[00:13:08] Speaker 03:
Thank you, Your Honor.

[00:13:09] Speaker 03:
Thank you, Ms.

[00:13:10] Speaker 03:
Rose.

[00:13:10] Speaker 03:
Mr. Brady has some rebuttal time if he needs it.

[00:13:14] Speaker 01:
Thank you, Your Honor.

[00:13:20] Speaker 01:
Your Honor, this case is very much like Catherine King versus OPM at 730 F.

[00:13:24] Speaker 01:
3rd, 1342.

[00:13:27] Speaker 01:
In that case, this court reversed its termination of the board regarding an overpayment because

[00:13:36] Speaker 01:
a waiver of recovery because the board failed to credit substantial evidence demonstrating that in accordance with the appropriate regulations, that the recipient detrimentally relied on the overpayment.

[00:13:54] Speaker 01:
The same problem that the court faced in King is with the court here in this case.

[00:14:02] Speaker 01:
It is that OPM has failed to credit

[00:14:07] Speaker 01:
the substantial evidence that Brittany provided that she is not at fault with the waiver.

[00:14:16] Speaker 01:
There's no question that the expert opinion of the neurologist that it is not surprising that she would not have remembered those overpayment instructions.

[00:14:29] Speaker 01:
And particularly under the circumstances of this case, where she applied for social security supplemental income

[00:14:36] Speaker 01:
which would not have affected her OPM benefits.

[00:14:41] Speaker 01:
And she fully disclosed to Social Security that she was receiving her federal employee disability benefits in her Social Security application.

[00:14:52] Speaker 01:
And when the lump sum was awarded, rather than Social Security notifying OPM,

[00:15:00] Speaker 01:
They gave the lump sum to Brittany, and it was years later before they conducted one of their periodic checks that they referred to in that letter of 2005 to come up with overpayments that they finally discovered the overpayment in this instance.

[00:15:20] Speaker 01:
For over two years, a woman with a disabling condition of her brain deteriorating from within,

[00:15:30] Speaker 01:
The government gave her $25,654 and left it in her hands.

[00:15:39] Speaker 01:
And it was only later, years later, that OPM caught up.

[00:15:44] Speaker 01:
It is against equity and good conscience in this case for the United States government not to use presently available technology to detect those overpayments and to conduct the periodic checks more quickly so that circumstances like this

[00:16:00] Speaker 01:
do not occur.

[00:16:03] Speaker 01:
But fundamentally, your honor, Brittany Bain provided substantial evidence in the form of her neurologist's opinion.

[00:16:10] Speaker 01:
And like King versus OPM, this court should reverse the board's decision because the board failed to credit that substantial evidence.

[00:16:25] Speaker 01:
And it replaced it with what

[00:16:29] Speaker 01:
the ALJ thought was a rational basis for denying a waiver of the overpayment that equity and good conscious demands be given.

[00:16:49] Speaker 03:
Thank you.

[00:16:50] Speaker 03:
Mr. Brady was sympathetic to the situation of your client and will consider the appeal fully.

[00:16:55] Speaker 01:
Thank you very much.

[00:16:56] Speaker 03:
The case is taken under submission.