The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
KEITH D. SMITH, DOCKET NUMBER
Appellant, CH-0845-15-0590-I-1
v.
OFFICE OF PERSONNEL DATE: March 16, 2016
MANAGEMENT,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Keith D. Smith, Radcliff, Kentucky, pro se.
Roxann Johnson, 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
dismissed his appeal as settled. 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
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
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).
¶2 The appellant and the Office of Personnel Management (OPM) entered into
a settlement agreement to resolve an annuity overpayment appeal in the amount
of $13,956.00. Initial Appeal File (IAF), Tab 7. The pertinent part of the
agreement stated that OPM would accept repayment of the overpayment in
79 monthly installments of $175.00, and 1 final payment of $131.00, with no
interest charged during this period. Id. The administrative judge entered the
agreement into the record and dismissed the appeal. IAF, Tab 8.
¶3 The appellant has filed a petition for review, in which he argues that OPM
violated the agreement on October 1, 2015, when it continued to recover the
overpayment consistent with its original reconsideration decision, i.e., a monthly
payment of $230.94. Petition for Review (PFR) File, Tab 1; IAF, Tab 1 at 22.
OPM has filed a response in which it concedes that it erroneously recovered a
portion of the overpayment on October 1, 2015, that was not in accordance with
the settlement agreement. PFR File, Tab 5. OPM further asserts that it corrected
the error by immediately terminating the collection and refunding the appellant
the $230.94 that it had erroneously collected. Id. OPM contends that its
inadvertent error should not warrant waiver of the appellant’s overpayment. Id.
3
The appellant filed a reply to OPM’s response in which he appears to be arguing
the merits of his claim for waiver of the overpayment. PFR File, Tab 6.
¶4 Because the appellant does not challenge the validity of the settlement
agreement on review, we deny the petition for review. 2 However, because the
appellant argues that OPM has breached the agreement, we construe the
appellant’s allegation as a claim of agency noncompliance, and we forward this
claim to the Central Regional Office for docketing as a petition for enforcement.
See Tat v. U.S. Postal Service, 111 M.S.P.R. 266, ¶ 4 (2009) (explaining that
allegations of noncompliance should be heard in the first instance by the
administrative judge.)
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:
U.S. 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
A party may challenge the validity of a settlement agreement, regardless of whether it
has been entered into the record for enforcement, if the party believes that the
agreement is unlawful, involuntary, or the result of fraud or mutual mistake. Wade v.
Department of Veterans Affairs, 61 M.S.P.R. 580, 583 (1994).
4
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 U.S. 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 U.S. 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 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.