The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ROBERT ALAN HELFMAN, DOCKET NUMBER
Appellant, SF-831M-14-0084-I-1
v.
OFFICE OF PERSONNEL DATE: August 18, 2014
MANAGEMENT,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Robert Alan Helfman, Rancho Santa Margarita, California, pro se.
Karla W. Yeakle, Washington, D.C., for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Anne M. Wagner, Vice Chairman
Mark A. Robbins, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
affirmed the Office of Personnel Management’s (OPM’s) reconsideration
decision. Generally, we grant petitions such as this one only when: the initial
decision contains erroneous findings of material fact; the initial decision is based
1
A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
on an erroneous interpretation of statute or regulation or the erroneous application
of the law to the facts of the case; the judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. See
Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R.
§ 1201.115). After fully considering the filings in this appeal, and based on the
following points and authorities, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
¶2 OPM found that the appellant was overpaid disability retirement benefits in
the amount of $3,817.73. Initial Appeal File (IAF), Tab 6 at 13. OPM explained
that the overpayment occurred in large part because the appellant’s gross interim
payments were made without the applicable health and life insurance premium
deductions. Id. OPM denied the appellant’s request for waiver of the
overpayment and collection of the overpayment amount in monthly installments
of $106.00. Id.
¶3 On appeal, the administrative judge found that OPM met its burden to prove
the existence and amount of the overpayment. IAF, Tab 10, Initial Decision (ID)
at 2-3. He also found that the appellant failed to meet his burden to show
entitlement to waiver. ID at 3-6. He found that the appellant failed to show that
recovery would cause him financial hardship because he had liquid assets in
excess of $80,000. ID at 3-4. The administrative judge also found that the
appellant failed to show that, based on the calculation of his income including the
overpayment amount, his college age daughter was denied financial aid. ID at 4.
The administrative judge found that the appellant failed to submit any evidence in
support of the assertion that his daughter was denied a grant to pay for her college
tuition because the overpayment amount caused the appellant’s income to exceed
the income that would have allowed his daughter to receive the grant. ID at 4.
Additionally, the administrative judge found that any increase in the appellant’s
tax burden as a result of the overpayment was not a basis for waiver. ID at 5.
Finally, the administrative judge found that the appellant failed to show that
recovery of the overpayment would be unconscionable because OPM’s delay in
responding to the appellant’s disability retirement application, and certain delays
in correspondence with him in correcting the annuity amount, were not within the
parameters found to be unconscionable by the Board. ID at 5-6.
¶4 In his petition for review, the appellant asserts that he was harmed in the
presentation of his case because OPM’s representative did not participate in the
prehearing conference, or at the hearing, and he could not complete discovery.
Petition for Review File, Tab 1 at 3-6. Discovery is the process by which a party
may obtain relevant information from another party to an appeal. 5 C.F.R.
§ 1201.72(a). Each party to an appeal is responsible for discovery. See Campbell
v. U.S. Postal Service, 51 M.S.P.R. 122, 125 (1991). The Board generally does
not involve itself in the discovery process unless a party files a motion to
compel. 2 See King v. Department of the Navy, 98 M.S.P.R. 547, ¶ 10 (2005),
aff’d, 167 F. App’x 191 (Fed. Cir. 2006). To the extent that the appellant
believed that he could have engaged in discovery by making a request for
information from OPM’s representative during the processing of the appeal, at the
prehearing conference, or at the hearing, he could have timely raised this issue to
the administrative judge even in the absence of OPM’s representative. The
2
Parties must file written motions to compel within 10 days of the date of service of
objections or the expiration of the time limit for response, where no response has been
received. 5 C.F.R. § 1201.73(d)(4). As required by the Board’s regulations, a motion
to compel must be accompanied by the following: (i) a copy of the original request and
a statement showing that the information sought is relevant and material; and (ii) a copy
of the opposing party’s response to the request or, where appropriate, an affidavit or
sworn statement under 28 U.S.C. § 1746 indicating that no response has been received.
5 C.F.R. § 1201.71.
appellant failed to show that he informed the administrative judge that he
intended to discover information during the processing of the appeal, at the
prehearing conference, or at the hearing. If the appellant had so informed the
administrative judge, the administrative judge could have reminded the appellant
of the Board’s discovery procedures, answered any questions about discovery that
the appellant may have had, and then removed himself from the discovery
process. See Christofili v. Department of the Army, 81 M.S.P.R. 384, ¶ 15
(1999).
¶5 The appellant also contends that, because of the absence of OPM’s
representative from the prehearing conference and at the hearing, he was unable
to present his case that, based on the calculation of his income including the
overpayment amount, his college-age daughter was denied financial aid. The
appellant, however, could have submitted such evidence into the record after the
prehearing conference, at the hearing, or during the 3-month period between his
initial submission and the issuance of the initial decision. See Burke v.
Department of Veterans Affairs, 121 M.S.P.R. 299, ¶ 18 (2014). The appellant
thus has failed to show that he was harmed by the absence of OPM’s
representative.
¶6 In his petition for review, the appellant alleges that the administrative judge
was biased because he urged the appellant to accept the agency’s settlement offer.
In making a claim of bias or prejudice against an administrative judge, a party
must overcome the presumption of honesty and integrity that accompanies
administrative adjudicators. Oliver v. Department of Transportation, 1 M.S.P.R.
382, 386 (1980). The party must show that any such bias constitutes extrajudicial
conduct rather than conduct arising in the administrative proceedings before him.
Ali v. Department of the Army, 50 M.S.P.R. 563, 568 (1991). In settlement
negotiations, administrative judges are permitted to inform the parties of the
relative strengths and weaknesses of their cases. Forston v. Department of the
Navy, 60 M.S.P.R. 154, 160 (1993). Such statements do not indicate bias or
coercion. Id. Further, the appellant made no showing that the administrative
judge had prejudged his case. The administrative judge’s comment that the
appellant should accept the agency’s settlement offer was made in his role as an
adjudicator; it was not extrajudicial conduct but his appraisal of the appellant’s
likelihood of success if the appellant elected to pursue adjudication of his appeal.
See Cranfield v. Tennessee Valley Authority, 44 M.S.P.R. 384, 388 (1990) (the
administrative judge’s comments to the parties reflecting the weaknesses of their
cases did not reflect any prejudgment or preconceived notions as to the appeal).
¶7 Next, the appellant repeats his contention that he is entitled to a waiver of
the overpayment because his receipt of the overpayment increased his taxes. In
Slater v. Office of Personnel Management, 42 M.S.P.R. 510, 519-21 (1989), the
Board found that an increase in an appellant’s tax burden because of an
overpayment does not warrant waiver of the overpayment on the basis of
detrimental reliance or unconscionability. A similar argument was raised in Day
v. Office of Personnel Management, 873 F.2d 291, 292 (Fed. Cir. 1989). In that
case, the plaintiff alleged that recovery of his annuity overpayment was improper
partly because the recovery resulted in an unexpected income tax liability. The
court found that the recovery was not unconscionable or otherwise improper and
that waiver of the recovery therefore was not warranted. Id. at 292-94. Here, the
appellant has not shown that the recovery of the amount of the annuity
overpayment would be unconscionable. We therefore find that the appellant has
not shown that he is entitled to waiver based on his tax liability for the
overpayment amount. 3
¶8 The appellant also repeats his contention that OPM’s 1-year delay in
adjusting his annuity was unconscionable and that the overpayment should be
3
The appellant did not challenge the existence or the amount of the overpayment
below, ID at 3, or on petition for review. There is no evidence that the appellant is
unable to collect the tax overpayment resulting from his annuity overpayment. See
Vojas v. Office of Personnel Management, 115 M.S.P.R. 502 (2011).
waived on that basis. As the administrative judge correctly found, however,
OPM’s delay in the appellant’s case was not egregious. See, e.g., Kellet v. Office
of Personnel Management, 62 M.S.P.R. 1, 4-5 (1993) (delay of 10 years in
adjusting an annuity found unconscionable); Cassity v. Office of Personnel
Management, 55 M.S.P.R. 25, 29 (1992) (55-month delay in adjusting annuity to
honor election of survivor annuity benefits was unconscionable in the absence of
an explanation for the delay), overruled in part on other grounds, Steele v. Office
of Personnel Management, 57 M.S.P.R. 458, 461–63 (1993).
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
You have the right to request review of this final decision by the United
States Court of Appeals for the Federal Circuit. You must submit your request to
the court at the following address:
United States Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, DC 20439
The court must receive your request for review no later than 60 calendar
days after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec.
27, 2012). If you choose to file, be very careful to file on time. The court has
held that normally it does not have the authority to waive this statutory deadline
and that filings that do not comply with the deadline must be dismissed. See
Pinat v. Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).
If you need further information about your right to appeal this decision to
court, you should refer to the federal law that gives you this right. It is found in
Title 5 of the United States Code, section 7703 (5 U.S.C. § 7703) (as rev. eff.
Dec. 27, 2012). You may read this law as well as other sections of the United
States Code, at our website, http://www.mspb.gov/appeals/uscode.htm.
Additional information is available at the court's website, www.cafc.uscourts.gov.
Of particular relevance is the court's "Guide for Pro Se Petitioners and
Appellants," which is contained within the court's Rules of Practice, and Forms 5,
6, and 11.
If you are interested in securing pro bono representation for your court
appeal, you may visit our website at http://www.mspb.gov/probono for a list of
attorneys who have expressed interest in providing pro bono representation for
Merit Systems Protection Board appellants before the court. The Merit Systems
Protection Board neither endorses the services provided by any attorney nor
warrants that any attorney will accept representation in a given case.
FOR THE BOARD: ______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.