The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
LEE N. BANNISTER, DOCKET NUMBER
Appellant, PH-0845-15-0297-I-1
v.
OFFICE OF PERSONNEL DATE: December 8, 2015
MANAGEMENT,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Lee N. Bannister, Butler, Pennsylvania, pro se.
Cynthia Reinhold, Washington, D.C., for the agency.
BEFORE
Susan Tsui Grundmann, 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). 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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).
2
on an erroneous interpretation of statute or regulation or the erroneous application
of the law to the facts of the case; the administrative 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, 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’s last day in pay status as a Federal employee was in
April 2008. Initial Appeal File (IAF), Tab 6 at 48. He applied for disability
retirement under the Federal Employees’ Retirement System (FERS) in
August 2008. Id. at 40-42. He was approved for Social Security Administration
(SSA) disability benefits effective September 2008. Id. at 39. In December
2008, OPM informed the appellant that his disability retirement application was
approved. Id. at 14. He received benefits retroactive to April 2008, including a
lump sum for the retroactive benefits. Id. at 32, 37. At that point, OPM also
informed the appellant that he was required to apply for SSA disability benefits
and that, if he was awarded such benefits, he should immediately notify OPM of
the amount and effective date of the monthly benefit. Id. at 14. OPM further
informed the appellant that his SSA checks should not be negotiated until his
FERS benefit was reduced to take into account his receipt of SSA benefits
because the SSA checks would be needed to reimburse OPM for the reduction
3
that should have been made in his FERS annuity. Id. at 15. OPM also described
how his annuity would be reduced. Id.
¶3 In April 2012, approximately 40 months after OPM approved the
appellant’s disability retirement application, OPM informed the appellant that he
had received an overpayment of FERS benefits for the period from September
2008 through the end of March 2012 in the amount of $45,003.00 because he had
received a FERS annuity during that period without the required reduction for his
SSA benefits. IAF, Tab 6 at 25. OPM proposed to collect the overpayment in
682 monthly installments of $65.94 and a final installment of $31.92. Id. In
May 2012, the appellant submitted a reconsideration request regarding the
proposed collection and checked the boxes for reconsideration of both the amount
or existence of the overpayment and waiver of the overpayment. Id. at 18. In
support of his request, he asserted, inter alia, that: he was not aware of the
overpayment, the overpayment is a great amount, he is a completely disabled
veteran, and the overpayment was incurred over a long time period. Id. at 19. In
December 2014, OPM replied to the appellant’s reconsideration request and
afforded him the opportunity to submit an updated financial resources
questionnaire (FRQ). Id. at 52-53. The appellant did so in December 2014, id.
at 20-22, and OPM issued its reconsideration decision in March 2015, id.
at 10-13. In the reconsideration decision, OPM affirmed the overpayment
amount, denied the appellant’s waiver request, and reiterated the previously
stated collection schedule. Id.
¶4 The appellant filed a Board appeal challenging OPM’s reconsideration
decision. IAF, Tab 1. He did not dispute the existence or amount of the
overpayment. Id. Instead, he asserted, among other things, that he did what he
was supposed to do by contacting OPM upon being notified by the SSA
administrative law judge of his receipt of benefits, but that OPM failed to contact
him concerning the overpayment until approximately 4 years after the approval of
his SSA benefits. Id. He also asserted that OPM made various errors including
4
not returning his telephone calls and sending a denial letter in an unsealed
envelope. Id. The appellant requested a hearing. Id. The administrative judge
issued an acknowledgment order informing the parties of their respective burdens
of proof regarding the overpayment. IAF, Tab 2. OPM responded that: (1) the
overpayment arose when the appellant’s FERS benefits were not reduced upon his
receipt of SSA disability benefits; (2) the evidence indicates that the appellant
was aware that his receipt of SSA benefits would result in an overpayment
collectible by OPM; (3) based upon review of the appellant’s FRQ, collection of
the overpayment would not be unconscionable; and (4) in settlement of the
appeal, it would accept reimbursement of the overpayment in full or based upon
the previously offered repayment schedule. IAF, Tab 6 at 4-5.
¶5 After holding the requested hearing, IAF, Tab 11, Hearing Compact Disc,
the administrative judge issued an initial decision affirming OPM’s
reconsideration decision, IAF, Tab 12, Initial Decision (ID). The administrative
judge found that the set-aside rule applied and that the appellant was not entitled
to a waiver of the overpayment. ID at 4. Specifically, he found that the appellant
was informed of the set-aside rule in OPM’s December 2008 letter and that, under
the circumstances of the case, OPM’s recovery of the overpayment was not
against equity and good conscience. ID at 4. The administrative judge also found
that the appellant was not entitled to a repayment schedule adjustment. ID at 4-5.
¶6 The appellant has filed a timely petition for review. Petition for Review
(PFR) File, Tab 1. He asserts that: (1) he informed OPM in a telephone call that
he had been approved for SSA benefits; (2) the overpayment should be waived
because he assumed OPM would have adjusted his annuity and because OPM
made a variety of mistakes and lacked professionalism over the years; (3) the
Board should consider that the Department of Veterans Affairs (VA), Board of
Veterans’ Appeals (BVA) found him without fault in an overpayment case; and
(4) the administrative judge did not allow him to present evidence concerning the
number of times he attempted to contact OPM, OPM’s negligent acts, or OPM’s
5
unprofessionalism, and appeared uninterested in thoroughly reviewing his case.
PFR File, Tab 1 at 4-5. OPM has responded in opposition to the petition for
review. PFR File, Tab 4.
DISCUSSION OF ARGUMENTS ON REVIEW
¶7 OPM bears the burden of proving the existence and amount of an
overpayment by preponderant evidence. 2 Vojas v. Office of Personnel
Management, 115 M.S.P.R. 502, ¶ 10 (2011); see 5 C.F.R. § 845.307(a). If the
appellant claims that he is entitled to a waiver of the overpayment, he has the
burden of proving, by substantial evidence, that he is entitled to a waiver. 3
Vojas, 115 M.S.P.R. 502, ¶ 18; see 5 C.F.R. § 845.307(b). Generally, the
recovery of a FERS overpayment should be waived if the recipient 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); see 5 U.S.C. § 8470(b);
see also 5 C.F.R. § 845.301.
¶8 If an individual knows or suspects that he or she is receiving an
overpayment, OPM policy provides that the individual is expected to set aside the
amount overpaid pending recoupment and that, in the absence of exceptional
circumstances, recovery in these cases is not against equity and good conscience.
OPM’s Policy Guidelines on the Disposition of Overpayments under the Civil
Service Retirement System and FERS § 1.C.4. (hereinafter Policy Guidelines,
located at IAF, Tab 6 at 58-90); see Slater v. Office of Personnel
Management, 42 M.S.P.R. 510, 516-17 (1989) (finding the set-aside rule
“reasonable and appropriate”). The set-aside rule goes to the question of whether
2
A preponderance of the evidence is that degree of relevant evidence that a reasonable
person, considering the record as a whole, would accept as sufficient to find that a
contested fact is more likely to be true than untrue. 5 C.F.R. § 1201.4(q).
3
Substantial evidence is defined as the degree of relevant evidence that a reasonable
person, considering the record as a whole, might accept as adequate to support a
conclusion, even though other reasonable persons might disagree. 5 C.F.R. § 1201.4(p).
This is a lower standard of proof than preponderance of the evidence. Id.
6
recovery would be against equity and good conscience. See Knox v. Office of
Personnel Management, 107 M.S.P.R. 353, ¶ 8 (2007).
¶9 Assuming, without deciding, that the appellant was without fault in the
overpayment, we find that the appellant has failed to establish that he is entitled
to a waiver because he should have set aside the overpayments to repay the debt. 4
In December 2008, OPM informed the appellant that he should immediately
notify OPM of the amount and effective date of his SSA benefits and that his SSA
checks should not be negotiated until his FERS benefit was reduced because the
SSA checks would be needed to reimburse OPM for the reduction that should
have been made in his FERS annuity. IAF, Tab 6 at 14-15. We find that this
notification by OPM provided the appellant with sufficient notice that he should
have set aside the SSA checks to repay OPM. See Gulan v. Office of Personnel
Management, 86 M.S.P.R. 16, ¶¶ 2, 9 (2000). OPM also informed the appellant
of how it would calculate the overpayment that he would incur during the first
12 months after his retirement and thereafter. IAF, Tab 6 at 15. In doing so, we
find that OPM informed the appellant that any additional overpayment incurred
between the period when his SSA benefits became effective in September 2008
until the issuance of the letter in December 2008 would be taken out of the lump
sum of FERS benefits he received in December 2008, which covered the period
from the retroactive effective date of his FERS benefits in April 2008 until his
approval for disability retirement. Therefore, we find that the appellant began
receiving the overpayment in December 2008 for the period beginning in
4
On review, the appellant asserts that he called OPM after he was approved for SSA
benefits. PFR File, Tab 1 at 4. The administrative judge found that the record did not
show that the appellant ever notified OPM that he began receiving SSA benefits. ID
at 4. We need not decide this matter to the extent that it relates to whether the appellant
was without fault in incurring the overpayment, however, because, regardless of
whether he was without fault, we find that he should have set aside the overpayment.
See Knox, 107 M.S.P.R. 353, ¶¶ 7-9 (holding that the appellant was without fault but
finding that she still was not entitled to a waiver because she should have set aside
the overpayment).
7
September 2008, and he was aware that he would need to set aside monies from
his SSA benefits and OPM lump sum. Under the particular circumstances in this
case, we find that recovery of the overpayment would not be against equity and
good conscience and that the appellant is therefore not entitled to a waiver of the
overpayment. See Knox, 107 M.S.P.R. 354, ¶¶ 2, 9 (finding that the appellant
was not entitled to a waiver based upon exceptional circumstances of an
overpayment incurred when she received interim disability annuity payments
from OPM covering a period of approximately 3 months when she was not
entitled to the payments).
¶10 Below, the appellant submitted a BVA decision finding that it would be
unfair to recover the overpayment of VA benefits from him because he was
without fault in creating the overpayment. IAF, Tab 4. He argues on review that
this decision demonstrates that he lacked knowledge of the OPM overpayment.
PFR File, Tab 1 at 5. However, we fail to see how the BVA decision relates to
the current appeal, including whether he was aware of the OPM overpayment,
particularly because the BVA decision concerns an overpayment of VA benefits
and the current appeal concerns an overpayment of FERS benefits. Thus, we find
that the BVA decision is irrelevant as to whether the appellant knew he was
receiving an overpayment from OPM.
¶11 Finally, the appellant challenges the initial decision on the grounds that the
administrative judge hurried his case, was not interested in reviewing it
thoroughly, and did not allow him to present evidence regarding his numerous
attempts to contact OPM and OPM’s negligence and unprofessionalism. PFR
File, Tab 1 at 5. 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. Thompson v. Department of the
Army, 122 M.S.P.R. 372, ¶ 29 (2015). The mere fact that an administrative judge
rules against a party does not establish bias. Id. We find that the appellant’s bare
assertions do not meet the high standard for establishing bias. We discern no
8
reversible error by the administrative judge. The appellant also has not shown
how any disallowed evidence would have affected the outcome of the case. Thus,
we find that he has not established that the administrative judge abused his broad
discretion in excluding evidence. 5 Hooper v. Department of the
Interior, 120 M.S.P.R. 658, ¶ 21 (2014).
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
You have the right to request review of this final decision by the U.S.
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
5
The appellant does not dispute the administrative judge’s finding that he is not entitled
to an adjustment of the repayment schedule. ID at 4-5. We see no reason to disturb
this finding.
9
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 an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website
at http://www.mspb.gov/probono for information regarding pro bono
representation for Merit Systems Protection Board appellants before the Federal
Circuit. 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.