Opinion

James Scott v. Office of Personnel Management

Court: Merit Systems Protection Board
Filed: May 25, 2023
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 23.4%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

JAMES C. SCOTT, JR., DOCKET NUMBER

Appellant, DA-0845-16-0534-I-1

OFFICE OF PERSONNEL DATE: May 25, 2023

MANAGEMENT,

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

James C. Scott, Jr., San Antonio, Texas, pro se.

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

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, 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 OPM correctly determined the existence and amount of the

overpayment and that the appellant failed to establish his entitlement to waiver of

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).

collection of the overpayment. In his petition, the appellant argues that he is

entitled to waiver of collection of the overpayment because he was unable to

inform OPM that he was receiving Social Security disability payments because

from 2007 to 2013 he was severely ill. 2 He also reiterates his contention made

below that “his rights were discriminated” due to his disability. 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 . Except as

expressly MODIFIED to find the appellant at fault in receipt of the overpayment,

we AFFIRM the initial decision.

¶2 In her initial decision, the administrative judge found the appellant was not

entitled to waiver of recovery of the overpayment because he had received letters

from OPM that clearly explained his obligation to set aside the Social Security

disability checks that he received so that he would be able to repay the

overpayment that would be created during the period that he received both

Federal Employees’ Retirement System and Social Security disability benefit

payments. Initial Appeal File (IAF), Tab 16, Initial Decision (ID) at 11; IAF,

The appellant does not assert, and we do not find, any error in the administrative

judge’s finding that OPM correctly determined the existence and amount of the annuity

overpayment.

Tab 12 at 33, 60, 83. She did not credit the appellant’s testimony that he had no

knowledge about setting aside funds and that OPM never notified him that he was

responsible for any overpayment. ID at 10-11. Nor did she credit the appellant’s

testimony that he was incapacitated in 2007 when he retired and thus was unable

to handle his affairs with OPM, given that the record shows that he filed an

application for Social Security benefits in late 2006. Id. The Board will defer to

the credibility findings of the administrative judge and will not grant a petition

for review based on a mere disagreement with those findings. Crosby v. U.S.

Postal Service, 74 M.S.P.R. 98, 105-06 (1997).

¶3 Although the administrative judge concluded that the appellant knew that

the receipt of Social Security disability benefits would trigger an overpayment,

she found that he was without fault in the overpayment, crediting his testimony

that he began receiving Social Security disability benefits in 2010 and notified

OPM in 2010 via telephone of the same. ID at 5, 10-11; Hearing Record (HR)

(testimony of the appellant). However, on review, the appellant states that he

started receiving Social Security disability benefits in November 2007. Petition

for Review File, Tab 1 at 2. His assertion is supported by the documentation in

the record, which includes a payment history listing November 2007, as the first

payment for Social Security disability benefits. IAF, Tab 12 at 18-19.

¶4 OPM’s “Policy Guidelines on the Disposition of Overpayments under the

Civil Service Retirement System and Federal Employees’ Retirement System”

(Guidelines) provide that an individual is not without fault if he accepted a

payment that he “should have known to be erroneous.” IAF, Tab 12 at 113.

However, OPM’s Guidelines also provide an exception to this rule, i.e., the

Prompt Notification Exception, which states that an individual “will

automatically be found without fault, regardless of whether they knew or should

have known that the payment was erroneous, if they promptly contact OPM and

question the correctness of the overpayment.” Id. at 114. Prompt notification is

defined as within 60 days of receipt of the overpayment. Id. As set forth above,

the administrative judge found that the appellant knew that the Social Security

disability benefits would trigger an overpayment. ID at 10-11. Because we

discern no basis for disturbing that finding and the appellant did not promptly

contact OPM within 60 days of his receipt of such benefits, he is considered at

fault under OPM’s guidance. IAF, Tab 12 at 33, 60, 113-14; HR (testimony of

the appellant). However, because the administrative judge affirmed OPM’s

decision finding that the appellant was not entitled to a waiver of the

overpayment, the finding of fault has no impact on the outcome of this case.

¶5 Although the administrative judge properly found that the appellant

provided no evidence to support his disability discrimination claim, ID at 2 n.2, it

appears from the appellant’s assertions on review that he may not be alleging

disability discrimination but rather asserting that recovery of the overpayment

would be unconscionable given his work-related disability. The appellant’s claim

is without merit because, as the administrative judge correctly found, the

appellant failed to show that recovery of the overpayment was unconscionable.

¶6 Accordingly, we affirm the initial decision. 3

NOTICE OF APPEAL RIGHTS 4

The initial decision, as supplemented by this Final Order, constitutes the

Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain

review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of

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).

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 indica ted in the notice, the

Board cannot advise which option is most appropriate in any matter.

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 situati on 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:

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 att orney 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. 420 (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 to waiver of any

requirement of prepayment of fees, costs, or other securi ty. 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

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. 5 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