The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JIMMY L. MAYE, DOCKET NUMBER
Appellant, DC-0845-14-0616-I-1
v.
OFFICE OF PERSONNEL DATE: December 2, 2014
MANAGEMENT,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Jimmy L. Maye, Kinston, North Carolina, pro se.
Patrick Jennings, 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 reconsideration decision of the Office of Personnel Management
(OPM), which found that the appellant was overpaid in Federal Employees’
Retirement System (FERS) disability benefits, denied his request for a waiver of
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).
2
collection of the overpayment, and established a repayment schedule. Generally,
we grant petitions such as this one only when: the initial decision contains
erroneous findings of material fact; the initial decision is based 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).
BACKGROUND
¶2 The appellant filed a Board appeal, challenging OPM’s reconsideration
decision, which found that he was overpaid $28,605.44 in FERS disability
annuity benefits, denied his request for a waiver, and adjusted the collection
schedule such that the appellant would pay $150 per month for 190 months with a
final payment of $105.44. See Initial Appeal File (IAF), Tab 1; see also IAF, Tab
4 at 5-11 (reconsideration decision). As part of the agency’s response file
submitted prior to the hearing, OPM offered a reduced collection schedule of
approximately $125 per month for 228 months with a final payment of $105.44 in
settlement of the appeal. IAF, Tab 4 at 4. The agency instructed the appellant to
contact them to accept the settlement offer or to return a Financial Resources
Questionnaire (FRQ) with an alternate recovery plan. Id. The appeal file
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contains only one FRQ completed by the appellant in November 2012, indicating
a monthly surplus of $500. Id. at 20-22.
¶3 The administrative judge held a telephonic hearing, during which the
appellant testified that he did not believe that OPM had correctly calculated the
overpayment, responded to the administrative judge’s questioning that he did not
perform his own calculation or analysis, and voiced no specific reason the
calculation was incorrect. IAF, Tab 13, Initial Decision (ID) at 3. The appellant
repeated his vague argument from the written initial appeal that he is a cancer
survivor and heart disease patient and is unable to make the repayments. See
IAF, Tab 1 at 2; ID at 4. The appellant also testified that he had received OPM’s
June 2010 notice instructing him not to negotiate his Social Security checks until
his FERS benefit had been reduced. See IAF, Tab 4 at 56-58; ID at 4. In the
initial decision, the administrative judge affirmed OPM’s decision, finding that:
(1) OPM proved the overpayment by preponderant evidence; (2) the appellant was
not entitled to a waiver of the overpayment; and (3) the appellant was not entitled
to an adjustment of the repayment schedule. ID at 3-5.
¶4 On review, the appellant submitted a one-page handwritten petition,
asserting that he is without fault for the overpayment and that OPM “created this
problem” and is obligated to correct errors in the payment of benefits. Petition
for Review (PFR) File, Tab 1 at 1. The petition makes brief references to OPM
regulations regarding the collection and compromise of debts, as well
precedential Board authority regarding the standard for waiving recovery of an
overpayment due to unconscionability and OPM delay. Id. The agency filed a
reply, arguing that the appellant has not submitted any new and material evidence
or shown that the administrative judge’s decision was based on an erroneous
interpretation of statute or regulation. PFR File, Tab 4 at 4. The appellant
responded with a conclusory statement that the initial decision was based on an
erroneous interpretation of law, statute, and regulation but did not specify the
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error. PFR File, Tab 5 at 2. He further stated that the administrative judge had
incorrectly affirmed OPM’s request for 228 monthly payments of $150. Id.
DISCUSSION OF ARGUMENTS ON REVIEW
¶5 OPM has the burden of establishing by a preponderance of the evidence the
existence and amount of the overpayment. Cebzanov v. Office of Personnel
Management, 100 M.S.P.R. 170, ¶ 6 (2005); 5 C.F.R. § 845.307(a). As noted
above, the appellant testified during the hearing that OPM had not properly
calculated the amount of the overpayment but provided no specific argument
concerning the alleged error. See ID at 3. On review, the appellant did not repeat
his argument about the miscalculation of the overpayment.
¶6 We find that the administrative judge correctly found that OPM proved the
existence and amount of the overpayment by preponderant evidence; this finding
is supported by the evidence in the record. In its reconsideration decision
affirming the overpayment and denying the appellant a waiver, OPM provided
detailed calculations of the appellant’s gross interim payments, actual accrued
annuity due, and statutorily required reduction to the monthly annuity by any
Social Security disability benefit. IAF, Tab 4 at 5-11. OPM provided evidence
that the claimant was deemed eligible for Social Security disability benefits as of
July 1, 2010, with a monthly benefit of $2,017. Id. at 42. Per 5 U.S.C.
§ 8452(d)(1), the annuity to which an annuitant is entitled under section 8452
“shall not be less than the amount of an annuity computed under [s]ection 8415,”
which governs the computation of a basic annuity. Given the amount of the
appellant’s monthly Social Security disability benefit in relation to his accrued
FERS disability annuity, the appellant’s annuity would have been less than that to
which he was entitled under 5 U.S.C. § 8415, and thus OPM awarded the amount
of the appellant’s basic annuity pursuant to 5 U.S.C. § 8452(d)(1). IAF, Tab 4 at
39 (compare “FERS E Rate” column with “FERS Disability” column); see id. at
8.
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¶7 The administrative judge correctly found that the appellant failed to
establish his entitlement to a waiver of collection of the overpayment.
Under 5 U.S.C. § 8470(b), recovery of an overpayment may be waived when the
annuitant is without fault and recovery would be against equity and good
conscience. Boone v. Office of Personnel Management, 119 M.S.P.R. 53, ¶ 5
(2012). The appellant has the burden of establishing entitlement to a waiver of an
overpayment by substantial evidence. Id.; 5 C.F.R. § 1201.56(a). Recovery is
against equity and good conscience when it would cause financial hardship, the
annuitant can show that he relinquished a valuable right or changed positions for
the worse, or recovery would be unconscionable under the circumstances.
Boone, 119 M.S.P.R. 53, ¶ 5; 5 C.F.R. § 845.303. Although the appellant made
vague references to OPM’s regulatory authority regarding suspension of debt
collection and a debtor’s right to request a compromise, he cites to nothing in the
regulations that implies a debtor is entitled to such compromise. See IAF, Tab 8;
PFR File, Tab 1.
¶8 On review, the appellant cited Aguon v. Office of Personnel
Management, 42 M.S.P.R. 540, 549 (1989), for the Board’s standard on
unconscionability. PFR File, Tab 1. As stated in Aguon, the Board has found
that the unconscionability criterion is a high standard justifying waiver only
under exceptional circumstances. Aguon, 42 M.S.P.R. at 549; see Boone, 119
M.S.P.R. 53, ¶ 9. In contrast to the various lengthy delays by OPM discussed in
Aguon, in the present case OPM notified the appellant in April 2012 of the
overpayment he received from June 2010 to March 2012, after the agency
calculated his accrued annuity due and received information on his entitlement to
Social Security disability benefits. IAF, Tab 4 at 28; see Aguon, 42 M.S.P.R. at
550. The appellant testified that he received the July 2010 letter from OPM
notifying him of the requirement of using any Social Security disability checks to
reduce his FERS disability benefits and the requirement that the appellant
immediately notify the agency of the award of Social Security benefits. See IAF,
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Tab 4 at 56-58; ID at 4. Although the appellant seeks to characterize the July
2010 letter as evidence that OPM knew of the overpayment in 2010, the record
does not support such an assertion, and the appellant has presented no evidence or
testimony of an egregious delay by OPM in correcting the overpayment. See
James v. Office of Personnel Management, 72 M.S.P.R. 211, 218-19 (1996).
¶9 Under the set-aside rule, an annuitant who receives both interim annuity
payments and Social Security disability payments is obligated by the principles
of equity and good conscience to set aside the money to repay OPM for
payments made in excess of the adjusted annuity amount. See OPM’s Policy
Guidelines on the Disposition of Overpayments under the Civil Service
Retirement System and the Federal Employees’ Retirement System § I.C.4
(1995), located at IAF, Tab 5 at 15; see also James, 72 M.S.P.R. at 217. On
review, the appellant did not dispute the administrative judge’s finding that he
failed to provide evidence warranting an exception to this rule, and we see no
reason to substitute our assessment for that of the administrative judge. See
Crosby v. U.S. Postal Service, 74 M.S.P.R. 98, 105-06 (1997) (finding no reason
to disturb the administrative judge’s findings when the administrative judge
considered the evidence as a whole, drew appropriate inferences, and made
reasoned conclusions); Broughton v. Department of Health & Human
Services, 33 M.S.P.R. 357, 359 (1987) (same).
¶10 Accordingly, we find that the administrative judge weighed the evidence,
reached the correct conclusion under the law, and issued a well-reasoned
decision. We note that the appellant last submitted an FRQ in November 2012
and that the administrative judge correctly found that the appellant provided no
evidence or testimony indicating that the repayment schedule imposed a financial
hardship sufficient to warrant further adjustment. ID at 4-5; IAF, Tab 4 at 20-22.
Prior to the hearing, the agency offered the appellant a reduced collection
schedule of approximately $125 per month for 228 months with a final payment
7
of $105.44 in settlement of the appeal, but he did not respond to this offer. 2 IAF,
Tab 4 at 4. Although the appellant testified to being a cancer survivor and heart
disease patient, he provided no evidence or testimony regarding his medical costs.
Should the appellant’s financial situation change, or his monthly expenses exceed
his monthly income, nothing in this final order prevents the appellant from
contacting OPM requesting an adjusted repayment scheduled based on an updated
FRQ.
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).
2
The appellant’s assertion on review that the administrative judge affirmed a repayment
schedule of $150 per month for 228 months, exceeding the amount of the overpayment,
confuses OPM’s reconsideration decision and settlement offer prior to the hearing. See
PFR File, Tab 5 at 2; ID; IAF, Tab 4 at 4-11. The administrative judge affirmed OPM’s
reduction in monthly repayments from $246.61 to $150 per month without referring to
the length of the repayment. ID at 4-5. However, as the initial decision affirms OPM’s
reconsideration decision, it clearly affirmed the recalculated collection schedule of 190
monthly payments of $150 and a final payment of $105.44 as outlined in the
reconsideration decision. ID at 4-5; IAF, Tab 4 at 10.
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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.