# Earl Thomas v. Office of Personnel Management

> Merit Systems Protection Board · August 5, 2022

URL: https://www.frixlaw.com/law-library/cases/9373508

## Case

- **Court:** Merit Systems Protection Board
- **Decided:** August 5, 2022
- **Precedential status:** Unpublished
- **Opinion:** Opinion
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

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## Opinion text

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD

EARL P. THOMAS, DOCKET NUMBER
Appellant, SF-0845-16-0467-I-1

v.

OFFICE OF PERSONNEL DATE: August 5, 2022
MANAGEMENT,
Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Earl P. Thomas, Victorville, California, pro se.

Carla Robinson, Washington, D.C., for the agency.

BEFORE

Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, 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) finding that he had been overpaid annuity benefits under the Federal
Employees’ Retirement System (FERS) and that he did not qualify 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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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 or adjustment of the collection schedule. Generally, we grant petitions
such as this one only in the following circumstances: 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 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. 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 th e initial
decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).

BACKGROUND
¶2 The appellant applied for FERS disability retirement benefits on January 20,
2005, which OPM approved on March 30, 2005, with an effective date of April 5,
2005. Initial Appeal File (IAF), Tab 5 at 40, 45-47, 56-58. By letter dated
September 18, 2005, OPM provided the appellant with information concerning the
effect that his receipt of any Social Security Administration Disability Insurance
Benefits (SSADIB) would have on his FERS disability retirement annuity. Id.
at 54-55. The letter informed the appellant of his obligation to report to OPM the
denial or approval of any SSADIB award; stated that if the Social Security
Administration (SSA) sent a retroactive payment, he should hold the award until
he received notice of the amount of any overpayment from OPM ; and noted that
he would be legally obligated to repay the overpayment of any FERS benefits. Id.
¶3 By notice dated February 14, 2015, OPM notified the appellant that he
received a FERS disability annuity overpayment of $75,972.00 for the period
3

from July 1, 2006, through January 30, 2015, and that OPM would commence
collecting the overpayment starting on May 1, 2015, by reducing his FERS
annuity by $197.71 per month over 384 installments, with a final installment of
$51.36. Id. at 13-14. The appellant sought reconsideration of OPM’s decision,
requesting a waiver or reduction of the debt or a reduction in the monthly
installment amount, but not challenging the existence or amount of the
overpayment. Id. at 10-12. OPM denied the appellant’s waiver request and
affirmed its initial decision in a reconsideration decision dated April 5, 2016.
Id. at 6-9. The appellant timely appealed to the Board thereafter. IAF, Tab 1.
¶4 Because the appellant did not request a hearing, the administrative judge
issued an initial decision based on the written record, affirming OPM’s
reconsideration decision. IAF, Tab 1 at 1, Tab 2 at 1, Tab 12, Initial Decision
(ID) at 10-19. He found that OPM met its burden of proving the existence and
amount of the overpayment. ID at 9; IAF, Tab 1 at 7, Tab 11 at 7. He also
determined that the appellant’s claim that he did not receive OPM’s notices
informing him of his obligation to set aside any retroactive payment from SSA
was unpersuasive, noting that the appellant initially reported to OPM that his
SSADIB application was denied but did not later inform OPM that his
reconsideration request was accepted. ID at 15 -16. As such, the administrative
judge determined that the appellant knew or should have known of his obligation
to disclose his entitlement to SSADIB effective July 1, 2006, when he accepted
payments that he knew or should have known were erroneous (that is, they were
unreduced FERS annuity payments without the required SSADIB offsets). ID
at 16-17. The administrative judge thus concluded that the appellant failed to
prove his entitlement to a waiver of collection or to an adjustment of the
overpayment amount and did not demonstrate that he was without fault in
receiving the overpayment. ID at 17.
¶5 Additionally, the administrative judge found that the appellant failed to
demonstrate financial hardship and was not entitled to an adjustment of the
4

recovery schedule, noting that the appellant did not submit a completed Financial
Resources Questionnaire with his reconsideration request a nd, aside from
claiming general financial hardship and identifying some income and expenses,
did not provide sufficient information to properly evaluate a financial hardship
claim. ID at 17-19. Consequently, the administrative judge affirmed OPM’s
reconsideration decision and recovery schedule of 384 monthly installments of
$197.71 with a final installment of $51.36. ID at 18.
¶6 On review, the appellant does not challenge the administrative judge’s
findings concerning the existence or amount of the overpayment or his lack of
entitlement to a waiver. Petition for Review (PFR) File, Tab 1. Instead, he
generally asserts that the initial decision contains erroneous findings and that he
disagrees with the outcome of the decision. Id. The agency has filed a response
to the petition for review, arguing that review should not be granted. PFR File,
Tab 4. 2

DISCUSSION OF ARGUMENTS ON REVIEW
¶7 OPM bears the burden of proving the existence and amount of an annuity
overpayment by preponderant evidence. 3 Vojas v. Office of Personnel
Management, 115 M.S.P.R. 502, ¶ 10 (2011); 5 C.F.R. § 845.307(a). The

2
The appellant filed a reply to OPM’s response to his petition for review that was
entered into the Board’s electronic record on January 3, 2017, which would make the
filing untimely filed by 4 days. PFR File, Tab 5; see 5 C.F.R. § 1201.114(g). However,
the stamp on the fax cover page indicating the date that the Board received the filing is
illegible, and the appellant’s self-completed fax cover page notes a filing date of
December 20, 2016, which would make the filing timely filed. PFR File, Tab 5 at 1. In
the reply, the appellant challenges the administrative judge’s finding that he was not
without fault in creating the overpayment and generally disputes the administrative
judge’s factual determinations. Id. at 4-6. Although we have considered the appellant’s
submission, we find that it does not present any argument or evidence that would
warrant a different outcome in this case.
3
A preponderance of the evidence is the 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).
5

appellant has the burden of proving by substantial evidence 4 that he is entitled to
a waiver or adjustment of the overpayment. Vojas, 115 M.S.P.R. 502, ¶ 18;
5 C.F.R. §§ 845.307(b), 1201.56(b)(2)(ii). Recovery of an overpayment may be
waived when the annuitant is without fault and recovery would be against equity
and good conscience. 5 U.S.C. § 8470(b); Vojas, 115 M.S.P.R. 502, ¶ 18;
5 C.F.R. § 845.301.
¶8 Recovery of an overpayment is against equity and good conscience if it
would cause financial hardship, the appellant can show he relinquished a valuable
right or changed positions for the worse due to the overpayment, or it would be
inequitable otherwise under the circumstances, i.e., unconscionable. Vojas,
115 M.S.P.R. 502, ¶ 22; 5 C.F.R. § 845.303. The standard for unconscionability
is a high one and is granted only under exceptional circu mstances. Taylor v.
Office of Personnel Management, 87 M.S.P.R. 214, ¶ 18 (2000).
¶9 Under OPM’s Policy Guidelines, “[i]ndividuals who are aware that they are
receiving overpayments are obligated by the principles of equity and good
conscience to set aside the amount overpaid pending recoupment by OPM.”
IAF, Tab 5 at 71. OPM’s Guidelines also dictate that an individual should be
found to be without fault if they promptly (within 60 days) contact ed OPM to
question the correctness of the payments. Id. at 67-68; see Vojas, 115 M.S.P.R.
502, ¶ 20. Additionally, “[u]nless there are exceptional circumstances, recovery
by OPM in those cases [where the monies should have been set aside] is not
against equity and good conscience.” IAF, Tab 5 at 71. Financial hardship is not
an exceptional circumstance; exceptional circumstances involve egregious errors
or delays by OPM, such as a failure to issue a written decision within 4 years of a
request for waiver. Id.

4
Substantial evidence is 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).
6

¶10 We agree with the administrative judge’s findings that OPM met its burden
of proving the existence and amount of the overpayment, that the appellant was
not without fault in the creation of the overpayment, and that he was ineligible for
a waiver. ID at 11-17. In so finding, the administrative judge determined that
there was sufficient record evidence to conclude that the appellant was aware of a
potential overpayment, despite his claim that he did not receive or did not recall
receiving OPM’s letters in March 2005 and September 2005. ID at 15; IAF,
Tab 11 at 7-8. The administrative judge also noted that the appellant admitted to
learning that he had received an overpayment in 2014 but still did not alert OPM
at that time. ID at 15-16. Although the appellant disputes the administrative
judge’s ultimate finding that he was not entitled to a waiver, he has not offered
any new or material evidence that would cast doubt on this conclusion. PFR File,
Tab 1. Further, the appellant has not offered any new evidence demonstrating
financial hardship sufficient to warrant a reduction in his installment payment
amount.
¶11 Accordingly, we find that the administrative judge properly weighed the
evidence and provided sound reasoning for his findings. The appellant has not
provided a basis to disturb those findings. See, e.g., 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 she 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).
We therefore deny the petition for review and affirm the initial decision. 5

5
OPM has advised the Board that it may seek recovery of any debt remaining upon an
appellant’s death from the appellant’s estate or other responsible party. A party
responsible for any debt remaining upon the appellant’s death may include an heir
(spouse, child, or other) who is deriving a benefit from the appellant’s Federal benefits,
an heir or other person acting as the representative of the estate if, for example, the
representative fails to pay the United States before paying the claims of other creditors
in accordance with 31 U.S.C. § 3713(b), or transferees or distributers of the appellant’s
estate. Pierotti v. Office of Personnel Management, 124 M.S.P.R. 103, ¶ 13 (2016).
7

NOTICE OF APPEAL RIGHTS 6
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.

(1) Judicial review in general. As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:

6
Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
8

U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439

Additional information about the U.S. Court of Appeals for the Federal
Circuit 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, 10, 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
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.

(2) Judicial or EEOC review of cases involving a claim of
discrimination. This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so , you may obtain
judicial review of this decision—including a disposition of your discrimination
claims—by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board, 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court-appointed lawyer and
9

to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues. 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013

If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507

(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012. This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
10

disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of competent jurisdiction. 7 The court of appeals must receive your
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439

Additional information about the U.S. Court of Appeals for the Federal
Circuit 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, 10, 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
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.

7
The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expire d on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appe als
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
11

Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.

FOR THE BOARD: /s/ for
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9373508. Public record. Not legal advice.