UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JOSEPH W. FAIRFIELD, DOCKET NUMBER
Appellant, SF-0845-15-0738-I-1
v.
OFFICE OF PERSONNEL DATE: June 28, 2016
MANAGEMENT,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Joseph W. Fairfield, Shasta Lake, California, pro se.
Karla W. Yeakle, 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) finding that he was overpaid $33,195.00 in disability annuity benefits
under the Federal Employees’ Retirement System (FERS) and was not entitled to
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
a waiver of the overpayment. 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 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 is a FERS disability retirement annuitant. Initial Appeal File
(IAF), Tab 2 at 7, Tab 5 at 40, 44, 55. By letter dated September 19, 2012, OPM
informed the appellant that his FERS annuity would be reduced if he were
awarded Social Security Administration (SSA) disability benefits and that he
would be required to repay any resulting FERS annuity overpayment. IAF, Tab 5
at 15, Tab 31, Hearing Compact Disc (HCD) (testimony of the appellant).
Included with the letter was a form for the appellant to complete upon his receipt
of an SSA award. IAF, Tab 5 at 15-16.
¶3 In May 2014, the appellant was awarded SSA disability benefits, retroactive
to October 1, 2012. IAF, Tab 5 at 26-27, Tab 8 at 26, Tab 18 at 1; HCD
(testimony of the appellant). Subsequently, in late May or early June 2014, the
appellant mailed OPM a completed copy of the form enclosed with the September
19, 2012 letter, notifying OPM that he had been awarded SSA disability benefits.
3
IAF, Tab 8 at 26, 32, 47; HCD (testimony of the appellant). The appellant
followed up with OPM by telephone and in writing on several occasions between
June and October 2014. IAF, Tab 8 at 33‑34, 38, 47, 51-53; HCD (testimony of
the appellant).
¶4 Approximately 9 months after the appellant mailed the form to OPM, by
letter dated February 28, 2015, OPM informed the appellant that his FERS
annuity benefit would be reduced based on his entitlement to SSA disability
benefits and that he had received a FERS annuity overpayment of $33,195.00 for
the period between October 2012 through the end of February 2015. IAF, Tab 5
at 21-22. OPM proposed to collect the overpayment in 65 monthly installments
of $510.09 and a final installment of $39.15. Id. at 22.
¶5 The appellant submitted a timely request for reconsideration of the
overpayment notice. Id. at 25. Approximately 4 months later, on July 16, 2015,
OPM issued a reconsideration decision affirming its initial decision and finding
that the appellant was not entitled to a waiver of the overpayment, but adjusting
the collection schedule to 97 monthly installments of $340.00 and a final
installment of $215.00. Id. at 7-11.
¶6 The appellant filed a timely Board appeal challenging OPM’s
reconsideration decision. IAF, Tab 2. He argued that OPM had miscalculated
the overpayment and that the overpayment should be waived. IAF, Tab 2 at 5,
Tab 8 at 2, Tab 18 at 1-2, 7-8, Tab 34 at 2, 6, 8, Tab 37 at 2; HCD (testimony of
the appellant). The appellant also raised a number of affirmative defenses,
including discrimination based on disability and age, a violation of due process,
harmful procedural error, and that OPM’s action was not in accordance with the
law. IAF, Tab 2 at 6-7, Tab 8 at 1, Tab 13 at 1, Tab 19 at 7-10, Tab 27 at 5-8,
Tab 34 at 2, 8.
¶7 After holding the appellant’s requested hearing, the administrative judge
issued an initial decision affirming OPM’s reconsideration decision. IAF,
4
Tab 40, Initial Decision (ID) at 1-2. The administrative judge found that OPM
proved the existence and amount of the overpayment. ID at 8-21. He further
found that the appellant failed to prove that he was entitled to a waiver of the
overpayment because, although the appellant was without fault in causing the
overpayment, ID at 22-23, OPM’s September 12, 2012 letter informed him of the
set‑aside rule, ID at 24-29, and he failed to establish exceptional circumstances
warranting waiver, ID at 30-38. Finally, the administrative judge denied the
appellant’s affirmative defenses. 2 ID at 40-44 nn.21, 48.
¶8 The appellant has filed a timely petition for review of the initial decision,
alleging that the administrative judge made factual, legal, and procedural errors.
Petition for Review (PFR) File, Tab 1. 3 The agency has responded in opposition
to the petition for review. PFR File, Tab 4.
2
On review, the appellant does not appear to contest the administrative judge’s findings
that he failed to prove his affirmative defenses of discrimination based on disability and
age, and we discern no basis to disturb these findings. Petition for Review File, Tab 1.
3
To be timely, a petition for review must be filed within 35 days of the date of issuance
of the initial decision, or, if the petitioner shows that the initial decision was received
more than 5 days after the date of issuance, within 30 days of the date the petitioner
received the initial decision. 5 C.F.R. § 1201.114(e). The appellant has the burden of
proof on the issue of timeliness. 5 C.F.R. § 1201.56(b)(2)(i)(B). Here, the initial
decision was issued on December 21, 2015, with a finality date of January 25, 2016. ID
at 1, 49. The appellant, who is not registered as an e‑filer, filed his petition for review
by mail, with a postmark date of January 27, 2016. PFR File, Tab 1 at 26; 5 C.F.R.
§ 1201.4(1) (providing that the date of a filing by mail is the postmark date). The
appellant subsequently submitted a statement, signed under penalty of perjury, that, as a
result of delays in the mail, he did not receive the initial decision until January 2, 2016.
PFR File, Tab 5 at 2-3. The appellant’s statement is unrebutted. Accordingly, because
the appellant filed his petition for review 30 days after his receipt of the initial
decision, we find that it was timely filed. 5 C.F.R. § 1201.114(e); see Comito v.
Department of the Army, 90 M.S.P.R. 58, ¶ 1 n.1 (2001) (finding that a petition for
review was timely where an appellant submitted an unrebutted statement under penalty
of perjury that she received the initial decision more than 5 days after the date of
issuance).
5
DISCUSSION OF ARGUMENTS ON REVIEW
The administrative judge correctly found that OPM proved the existence and
amount of the overpayment.
¶9 OPM bears the burden of proving the existence and amount of an annuity
overpayment by preponderant evidence. Vojas v. Office of Personnel
Management, 115 M.S.P.R. 502, ¶ 10 (2011); 5 C.F.R. § 845.307(a). Here, in
finding that OPM satisfied this burden, the administrative judge relied on records
in the agency file, including, but not limited to: (1) the appellant’s individual
retirement record; (2) the February 28, 2015 overpayment notice and an
attachment explaining how the overpayment was calculated; (3) the July 16, 2015
reconsideration decision; (4) OPM documentation explaining the calculation of
the appellant’s FERS disability annuity benefit; (5) computer printouts reflecting
OPM’s verification of the appellant’s SSA disability benefits; and (6) the
appellant’s own disability retirement application. ID at 8-21; see IAF, Tab 5
at 7-11, 22-24, 26-27, 41-58.
¶10 The administrative judge conducted a thorough and detailed review of
OPM’s calculation of the overpayment. ID at 9-21. Applying the formula for
FERS disability retirement annuities to the evidence in the agency file, he
concluded that OPM correctly calculated the appellant’s annuity, addressing each
of the appellant’s allegations of error. ID at 10-11, 17-20; see 5 U.S.C.
§ 8452(a)(1)(A) (providing the formula for FERS disability retirement annuities);
IAF, Tab 27 at 3-4, Tab 37 at 4; HCD (testimony of the appellant). The
administrative judge then proceeded to review OPM’s calculation of the
statutorily required reduction in the appellant’s FERS annuity benefits based on
his receipt of SSA disability benefits. ID at 9-13; see 5 U.S.C. § 8452(a)(2).
After conducting this analysis, and determining the difference between the
amount of FERS annuity benefits to which the appellant was entitled and the
amount that he was paid for the time period at issue, the administrative judge
6
concluded that OPM proved by a preponderance of the evidence that the appellant
had received an overpayment of FERS disability retirement benefits in the
amount of $33,195.00. ID at 11-13, 21.
¶11 On review, the appellant challenges the administrative judge’s finding that
OPM proved the existence and amount of the overpayment. PFR File, Tab 1
at 3-10, 17, 24. As discussed below, we find that his arguments do not provide a
basis to disturb the initial decision.
The administrative judge properly considered the agency file as evidence of
the existence and amount of the overpayment.
¶12 On review, as he did below, the appellant contends that the administrative
judge erred in considering the agency file as evidence that OPM proved the
existence and amount of the overpayment, because the agency file is hearsay, and
according to the appellant, is unreliable. PFR File, Tab 1 at 3-10; IAF, Tab 34 at
1-4; HCD (testimony of the appellant). We disagree.
¶13 It is well settled that relevant hearsay evidence is admissible in Board
proceedings. Luten v. Office of Personnel Management, 110 M.S.P.R. 667, ¶ 12
(2009); Borninkhof v. Department of Justice, 5 M.S.P.R. 77, 83 (1981). Our
reviewing court has held that hearsay evidence “may be accepted as preponderant
evidence even without corroboration if, to a reasonable mind, the circumstances
are such as to lend it credence.” Kewley v. Department of Health & Human
Services, 153 F.3d 1357, 1364 (Fed. Cir. 1998). In Wisecup v. Office of
Personnel Management, 30 M.S.P.R. 191, 193-94, aff’d, 809 F.2d 790 (Fed. Cir.
1986) (Table), the Board found that, in the absence of significant rebuttal by an
appellant, OPM’s records were sufficient to establish the existence and amount of
an overpayment by preponderant evidence. In reaching this conclusion, the
Board considered the fact that the appellant did not identify any specific
inaccuracies or discrepancies in OPM’s records, demonstrate that the records
were not routinely made in the ordinary course of business, or demonstrate that
the records were inherently unreliable, untrustworthy, or noncredible. Id. at 193.
7
¶14 Here, applying Wisecup, the administrative judge concluded that OPM’s
evidence, although hearsay, was sufficient to establish the existence and amount
of the overpayment. 4 ID at 14-16 & n.9. The administrative judge reviewed the
records and verified OPM’s calculations. ID at 8-14. He further found that:
(1) the records at issue were made in the ordinary course of OPM’s business as
the administrator of the Federal retirement systems; (2) the records generally
were accurate based on his review; and (3) the appellant failed to adduce any
compelling contradictory evidence. ID at 15-16 & n.9.
¶15 On review, the appellant also argues that, in evaluating the probative value
of OPM’s records, the administrative judge failed to follow the U.S. Supreme
Court’s decision in Richardson v. Perales, 402 U.S. 389 (1971). PFR File, Tab 1
at 4-6. To the contrary, in Perales, which involved an appeal from a denial of
Social Security disability benefits, the Supreme Court found that hearsay
evidence alone may constitute substantial evidence. 402 U.S. at 402; see
Borninkhof, 5 M.S.P.R. at 84 (interpreting Perales as a rejection of any rule that
hearsay may not per se constitute substantial evidence). To the extent that the
appellant contends that the administrative judge was required to replicate the
precise analysis that the Supreme Court used to evaluate the probative value of
the medical reports in a Social Security disability benefits appeal, we disagree.
PFR File, Tab 1 at 4-6. Instead, the Board reviews the probative value of
hearsay evidence in Board appeals under the factors set forth in Borninkhof,
5 M.S.P.R. at 87. Social Security Administration v. Long, 113 M.S.P.R. 190, ¶ 27
4
On review, the appellant contends that the administrative judge failed to rule on his
objection to the administrative judge’s consideration of the agency file. PFR File,
Tab 1 at 7. To the contrary, the administrative judge conducted a detailed analysis of
the issue and the appellant’s arguments and concluded that OPM’s records were reliable
and probative. ID at 14-16 & n.9. For this same reason, the appellant’s allegations that
the administrative judge failed to explain his reasoning, as required by Spithaler v.
Office of Personnel Management, 1 M.S.P.R. 587, 589 (1980), are without merit. PFR
File, Tab 1 at 7, 23.
8
(2010), aff’d, 635 F.3d 526 (Fed. Cir. 2011). Here, we find that the
administrative judge considered the Borninkhof factors relevant to analyzing
OPM records in an overpayment appeal, as identified in Wisecup, and correctly
concluded that OPM’s records were sufficient to establish the existence and
amount of the overpayment. ID at 15-16 & n.9.
The appellant has failed to demonstrate any error in the administrative
judge’s finding that OPM proved that it correctly calculated the amount of
the overpayment.
¶16 On review, the appellant challenges the administrative judge’s finding that
OPM proved that it correctly calculated the amount of the overpayment.
PFR File, Tab 1 at 9, 13, 24. He contends that the administrative judge failed to
consider his allegation at the hearing that there was some degree of variation in
the amount of SSA disability benefits that he received each month. Id. at 9.
¶17 We agree with the administrative judge that OPM properly reduced the
appellant’s FERS annuity based on his entitlement to, rather than actual receipt
of, SSA disability benefits. 5 ID at 18; see 5 U.S.C. § 8452(a)(2)(A) (referencing
a requirement for a reduction in an annuitant’s FERS disability annuity benefit
for a month in which the appellant is “entitled both” to a FERS disability
retirement annuity and SSA disability benefits); 5 C.F.R. § 844.302(b)(2), (c)(2)
(referencing periods for which an annuitant is “entitled to” SSA disability
benefits); see also Maxwell v. Office of Personnel Management, 78 M.S.P.R. 350,
355 (1998) (finding that a delay in an appellant’s receipt of SSA disability
5
We have considered the appellant’s argument on review that the administrative
judge’s finding was contrary to the decision by the U.S. Court of Appeals for the
Federal Circuit in Stephenson v. Office of Personnel Management, 705 F.3d 1323 (Fed.
Cir. 2013), and find it unpersuasive. PFR File, Tab 1 at 17-18. In Stephenson, the
court held OPM could not reduce an appellant’s FERS disability benefits for a period
during which he was not entitled to SSA disability benefits because he was working.
705 F.3d at 1328-29. The court’s finding was based on an analysis of whether the
appellant was entitled to SSA disability benefits under 5 U.S.C. § 423(a)(1), the
applicable provision of the Social Security Act, not whether the appellant received such
benefits. Stephenson, 705 F.3d at 1328-29.
9
benefits did not alter the fact that she was entitled to receive the benefits for
purposes of calculating a reduction to her FERS annuity), overruled on other
grounds by Conner v. Office of Personnel Management, 120 M.S.P.R. 670, ¶ 6
(2014).
¶18 The appellant also contends that the administrative judge failed to consider
that he paid $6,000.00 of his SSA disability benefits to the attorney who
represented him in proceedings before the SSA. PFR File, Tab 1 at 13, 20, 24;
see IAF, Tab 5 at 25. The appellant has cited no authority, and we can identify
none, for the proposition that he is entitled to a reduction in repaying an
overpayment based upon his payment of attorney’s fees and costs in pursuing his
SSA disability benefits award. See 5 U.S.C. § 8452(a)(2)(A). As discussed
above, the reduction in the appellant’s FERS disability retirement benefit is
governed by his entitlement to SSA disability benefits, regardless of whether
some portion of those benefits were ultimately paid to his attorney. Therefore,
the appellant has failed to demonstrate that the administrative judge erred in
finding that OPM correctly calculated the overpayment without a reduction for
attorney’s fees. ID at 10-21.
The administrative judge correctly found that the appellant failed to prove that he
was entitled to a waiver of the overpayment.
¶19 An appellant has the burden of proving by substantial evidence that he is
entitled to a waiver of an overpayment. Vojas, 115 M.S.P.R. 502, ¶ 18; 5 C.F.R.
§ 845.307(b). A waiver of an annuity overpayment may be granted when the
annuitant is without fault and recovery would be against equity and good
conscience. Zucker v. Office of Personnel Management, 114 M.S.P.R. 288, ¶ 7
(2010); 5 C.F.R. § 845.301. Here, it is undisputed that the appellant met his
obligation to inform OPM of the overpayment and that he was without fault.
ID at 22-23. However, on review, the appellant raises several challenges to the
administrative judge’s finding that he failed to demonstrate that recovery would
be against equity and good conscience. PFR File, Tab 1 at 9-23; ID at 24-37.
10
For the reasons discussed below, we find that the appellant’s arguments do not
provide a basis for disturbing the initial decision.
The administrative judge correctly found that the set-aside rule applies.
¶20 OPM policy provides that individuals who know or suspect that they are
receiving overpayments are 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. Boone v. Office of
Personnel Management, 119 M.S.P.R. 53, ¶ 6 (2012); Knox v. Office of Personnel
Management, 107 M.S.P.R. 353, ¶ 8 (2007); IAF, Tab 5 at 70, Policy Guidelines
on the Disposition of Overpayments under the Civil Service Retirement System
and Federal Employees’ Retirement System, § I.C.4 (1995) (Policy Guidelines).
¶21 On review, the appellant contests the administrative judge’s finding that the
set‑aside rule applies. PFR File, Tab 1 at 9-14, 19-21. However, we agree with
the administrative judge that OPM’s September 19, 2012 letter provided the
appellant with sufficient notice that he was required to set aside his SSA
disability benefit payments to repay OPM for any overpayment of his FERS
disability annuity. ID at 24-29.
¶22 We have considered the appellant’s arguments on review that the
September 19, 2012 letter was poorly written, unclear, or confusing, and find
them unpersuasive. PFR File, Tab 1 at 9-14, 19-21. In pertinent part, the letter
notified the appellant that by law, OPM “is required to deduct all or part of Social
Security disability benefits from the FERS disability benefit paid to a retiree.”
IAF, Tab 5 at 15. The letter further stated:
If you are overpaid FERS disability benefits because of receipt of
Social Security disability benefits, OPM will send you a notice of the
amount of the overpayment. You are legally required to repay this
money to OPM. If SSA sends you a retroactive payment, hold that
award until you receive a notice of the amount of your overpayment
from OPM, so that you have sufficient funds to repay your duplicate
payment.
11
Id. We find that the letter clearly informed the appellant that he was required to
set aside his SSA disability benefits award to reimburse OPM for any FERS
overpayment.
¶23 On review, the appellant reiterates his argument, raised below, that the
set-aside rule should not apply because his mental capacity was purportedly
affected by his prescribed opiate when he received the September 2012 letter.
PFR File, Tab 1 at 11; IAF, Tab 37 at 3-4; HCD (testimony of the appellant).
The administrative judge found the appellant’s claims that he suffered from
mental incapacity in 2012 and 2013 were inapposite because the appellant was
not awarded SSA disability insurance benefits until May 2014 and did not allege
that he suffered from mental incapacity at that time. ID at 28-29. He further
found that the appellant’s actions in repeatedly notifying OPM that he had been
awarded SSA disability benefits, in accordance with the instructions in the
September 2012 letter, reflected that he was aware, or at least strongly suspected,
that he had received an overpayment. ID at 27-29. We discern no basis to
disturb these well-reasoned findings. See Knox, 107 M.S.P.R. 353, ¶¶ 7-9
(holding that an appellant was without fault in creating an overpayment but was
not entitled to a waiver because she was aware that she should have set aside the
overpayment). In sum, we find that the appellant’s arguments on review do not
provide a basis for disturbing the administrative judge’s conclusion that the
set-aside rule applies.
The administrative judge correctly found that the appellant failed to
establish exceptional circumstances warranting waiver.
¶24 Because the set-aside rule applies, the appellant is not entitled to a waiver
of the overpayment unless he can establish that exceptional circumstances exist.
See Boone, 119 M.S.P.R. 53, ¶ 6. Exceptional circumstances may include, but
are not limited to, cases in which: (1) there has been an exceptionally lengthy
delay by OPM in adjusting an annuity; (2) OPM failed to respond within a
12
reasonable length of time to an annuitant’s inquiries regarding an overpayment;
(3) OPM failed to act expeditiously to adjust an annuity in the face of specific
notice; or (4) OPM was otherwise grossly negligent in handling the case. King v.
Office of Personnel Management, 114 M.S.P.R. 181, ¶ 20 (2010).
¶25 On review, the appellant reiterates his argument, raised below, that
exceptional circumstances exist because OPM failed to adjust his FERS disability
retirement annuity until 9 months after he notified OPM that he had been awarded
SSA disability benefits, and OPM failed to respond to his repeated
communications regarding his SSA disability benefits award during that same
time period. PFR File, Tab 1 at 12, 14; IAF, Tab 18 at 7. The administrative
judge found that, although OPM’s delays may have been vexing to the appellant,
they did not meet the threshold for a finding of exceptional circumstances, where,
as here, OPM issued the overpayment notice to the appellant 25 days after
verifying his SSA disability benefits award with the SSA. ID at 31-32. We
discern no error in this finding. See James v. Office of Personnel
Management, 72 M.S.P.R. 211, 218-19 (1996) (finding that a delay of
approximately 15 months between the date that an appellant notified OPM that he
had been awarded SSA disability benefits and the date that OPM issued an
overpayment notice did not constitute an exceptionally lengthy delay warranting
waiver); Harris v. Office of Personnel Management, 43 M.S.P.R. 387, 390-91
(finding that a 2‑year delay between the date that an appellant became eligible
for SSA disability benefits and the date that OPM adjusted his Civil Service
Retirement System annuity did not establish exceptional circumstances
warranting waiver), aff’d, 907 F.2d 158 (Fed. Cir. 1990); Newcomb v. Office of
Personnel Management, 42 M.S.P.R. 552, 558‑60 (1989) (finding that a delay of
3 years and 10 months between an appellant’s request for a waiver and OPM’s
final decision did not constitute exceptional circumstances rendering recovery
unconscionable); see also IAF, Tab 5 at 70, Policy Guidelines, § I.C.4 (stating
13
that exceptional circumstances would involve extremely egregious errors or
delays by OPM, such as failure to issue a written decision within 4 years of a
request for waiver).
¶26 The appellant also repeats his arguments that he is entitled to a waiver
under a theory of detrimental reliance because: (1) the overpayment purportedly
caused his tax burden to increase; and (2) he elected to retain an attorney to
appeal the denial of his SSA benefits because he allegedly did not understand that
his FERS disability benefits would be reduced. PFR File, Tab 1 at 18-20; IAF,
Tab 2 at 5, Tab 18 at 9; HCD (testimony of the appellant). The administrative
judge correctly found that the appellant failed to establish a claim of detrimental
reliance because, although OPM’s actions may have ultimately put the appellant
in a worse position, OPM did not mislead the appellant or induce him to change
his position, where, as here, he was on notice of the potential overpayment and
the set‑aside requirement. ID at 35-37; see Slater v. Office of Personnel
Management, 42 M.S.P.R. 510, 520-21 (1989) (finding that an increase in an
appellant’s tax burden because of an overpayment did not warrant waiver of the
overpayment on the basis of detrimental reliance where there was no evidence
that OPM misled the appellant, or induced him to change his position); see also
Freidman v. Office of Personnel Management, 153 F. App’x 719, 721 (Fed. Cir.
2005) (finding that an appellant failed to establish that his payment of attorneys’
fees incurred in pursuing SSA disability benefits constituted exceptional
circumstances warranting waiver). 6
¶27 We also have considered the appellant’s other arguments on review,
including, but not limited to, his allegations of error, negligence, and delays by
OPM, PFR File, Tab 1 at 9-24, and find that none of them provide a basis for
6
Although Freidman is an unpublished decision, the Board may rely on unpublished
Federal Circuit decisions where, as here, it finds the court’s reasoning persuasive.
Mauldin v. U.S. Postal Service, 115 M.S.P.R. 513, ¶ 12 (2011).
14
disturbing the administrative judge’s conclusion that he failed to establish
exceptional circumstances warranting waiver.
The administrative judge correctly found that the appellant failed to prove that
OPM violated his due process rights.
¶28 On review, the appellant challenges the administrative judge’s finding that
he failed to prove his affirmative defense of a violation of due process. PFR File,
Tab 1 at 21-22. He reiterates his assertions, raised below, that OPM violated his
due process rights when: (1) OPM erroneously made collections on the
overpayment while his reconsideration request and Board appeal were pending, in
violation of 5 C.F.R. §§ 845.204(a)(9) and 845.205(d)(1); (2) OPM issued an
overpayment notice that purportedly failed to provide all of the information
required by 5 C.F.R. § 845.204(a); and (3) OPM failed to respond to his requests
for documents and information that he submitted prior to the reconsideration
decision. PFR File, Tab 1 at 16-17, 21-22; IAF, Tab 8 at 1, Tab 18 at 2-5,
Tab 21 at 2, Tab 26 at 1-2, Tab 27 at 5, Tab 29 at 1, Tab 34 at 4-5.
¶29 The administrative judge considered these allegations and found that the
appellant failed to establish that OPM violated his due process rights. ID
at 42-43 & n.21. He found that, after the appellant raised the issue of the
premature collection of the overpayment, OPM remedied the error, relying on
evidence that OPM either refunded or was in the process of refunding the
amounts that it improperly collected. ID at 43 & n.11; IAF, Tab 5 at 5, 29-35,
Tab 8 at 62-64, Tab 24 at 3, Tab 30 at 4-5. He further found that, because due
process is a flexible concept and OPM’s collection of the overpayment did not
constitute a permanent deprivation, the appellant failed to establish that the
premature collection violated his due process rights. ID at 4; see Gajdos v.
Department of the Army, 121 M.S.P.R. 361, ¶ 18 (2014) (finding that due process
is “flexible and calls for such procedural protections as the particular situation
demands” (quoting Mathews v. Eldridge, 424 U.S. 319, 334 (1976)).
15
¶30 Regarding the appellant’s remaining contentions, the administrative judge
found that, because OPM generally stays overpayment collections while Board
appeals are pending, the risk of an erroneous deprivation of property rights was
low, given the availability of independent review by the Board prior to OPM’s
final action. ID at 43; see Matthews, 424 U.S. at 335 (finding that due process
requires consideration of the risk of an erroneous deprivation of a property
interest through the procedures used); see also Gajdos, 121 M.S.P.R. 361, ¶ 25
(considering the availability of post‑deprivation relief before the Board in
finding that an agency did not violate an appellant’s due process rights in
effectuating his furlough). He further found that the appellant ultimately
received the process required by OPM’s regulations, either directly from OPM or
during the course of his Board appeal. ID at 43. For these reasons, he concluded
that the appellant failed to establish that OPM violated his due process rights. ID
at 43.
¶31 On review, the appellant has not identified any factual or legal errors in the
administrative judge’s analysis, but instead merely reiterates the actions that he
contends constitute due process violations and disputes the administrative judge’s
characterization of tangential matters. PFR File, Tab 1 at 16-17, 21-22. As
such, the appellant’s contentions on review constitute mere disagreement with the
administrative judge’s well‑reasoned finding that the appellant failed to prove
that OPM violated his due process rights and do not provide a basis for disturbing
the initial decision. 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).
16
The administrative judge correctly found that the appellant failed to prove his
affirmative defenses of harmful procedural error and that OPM’s decision was not
in accordance with the law.
¶32 Below, the appellant relied on many of the same actions that he alleged
constituted due process violations (OPM’s premature collection of the
overpayment, purportedly deficient overpayment notice, and failure to respond to
his request for documents and information) as the basis for his affirmative
defenses of harmful procedural error and that OPM’s decision was not in
accordance with the law. IAF, Tab 2 at 6-7, Tab 8 at 1-4, Tab 19 at 7-10,
Tab 27 at 5.
¶33 The administrative judge found that the appellant failed to prove harmful
error because he failed to demonstrate that any of the alleged errors were likely to
have caused OPM to reach a different conclusion. ID at 40-41; see Forte v.
Department of the Navy, 123 M.S.P.R. 124, ¶ 9 (2016) (finding that, to show
harmful error, an appellant must prove that any procedural error was likely to
have caused the agency to reach a conclusion different from the one it would
have reached in the absence or cure of the error); 5 C.F.R. § 1201.4(r) (defining
harmful error). He found that the appellant failed to prove his not‑in‑accordance
‑with‑the‑law affirmative defense because the appellant failed to establish that
there was no legal authority for OPM’s decision. ID at 40-41; see Stephen v.
Department of the Air Force, 47 M.S.P.R. 672, 683-84 (1991) (in evaluating a
not-in-accordance-with-the-law affirmative defense, the Board must determine
whether the decision itself, in its entirety, was not in accordance with law) (citing
Handy v. U.S. Postal Service, 754 F.2d 335, 337-38 (Fed. Cir. 1985)).
¶34 To the extent that the appellant intends to challenge these findings on
review, PFR File, Tab 1 at 16-17, 21-22, we find that his contentions fail to
provide a basis for disturbing the administrative judge’s well‑reasoned
conclusions. See Crosby, 74 M.S.P.R. 98, 105–06; Broughton, 33 M.S.P.R. at
359 (1987).
17
The administrative judge did not abuse his discretion in his procedural rulings.
¶35 On review, the appellant argues that the administrative judge erred in
accepting the agency’s closing statement despite a service error, and in denying
the appellant’s requests to compel discovery and present an expert witness.
PFR File, Tab 1 at 2, 4, 10, 23; IAF, Tab 32 at 2.
¶36 Administrative judges have broad discretion to control proceedings,
including ruling on discovery matters and excluding witnesses and evidence that
are not relevant or material to the issues of the case. See Thomas v. U.S. Postal
Service, 116 M.S.P.R. 453, ¶ 4 (2011) (finding that an administrative judge has
broad discretion to exclude evidence and witnesses which have not been shown to
be relevant or material); Wagner v. Environmental Protection
Agency, 54 M.S.P.R. 447, 452 (1992) (finding that the Board will not reverse an
administrative judge’s rulings on discovery matters absent an abuse of
discretion), aff’d, 996 F.2d 1236 (Fed. Cir. 1993) (Table). For the following
reasons, we find that the appellant failed to establish that the administrative judge
abused his discretion here.
¶37 Following the hearing, the administrative judge issued an order requiring
that any written closing statements be received by the Board and the opposing
party by October 29, 2015, and that rebuttals be received by November 5. IAF,
Tab 32 at 2. The agency electronically filed its closing statement on October 27,
2015, but did not ensure the appellant’s timely receipt. IAF, Tab 33 at 4, 11, Tab
35 at 1, Tab 37 at 102. The appellant responded to the agency’s closing
statement on November 5, IAF, Tab 37, and subsequently, both parties continued
to file additional pleadings, IAF, Tabs 38-39.
¶38 The administrative judge denied the appellant’s request that he decline to
consider the agency’s closing statement, finding that, because both parties had
failed to comply with the Board’s directives, he would accept all of their
18
submissions into the record and consider them. 7 ID at 7 n.4. Absent an abuse of
discretion, the Board will not reverse an administrative judge’s determination
regarding sanctions. Leseman v. Department of the Army, 122 M.S.P.R. 139, ¶ 6
(2015); Davis v. Department of Commerce, 120 M.S.P.R. 34, ¶ 18 (2013). We
find that the appellant failed to establish that the administrative judge abused his
discretion in declining to sanction the agency here. See Herring v. Department of
Veterans Affairs, 72 M.S.P.R. 96, 99 (1996) (observing that the practice at the
Board’s headquarters is to serve a copy of a pleading on the other parties when a
party fails to comply with the Board’s regulations requiring such service); Panter
v. Department of the Air Force, 22 M.S.P.R. 281, 282 (1984) (finding that an
adjudicatory error that is not prejudicial to a party’s substantive rights provides
no basis for reversal of an initial decision).
¶39 The appellant also argues that the administrative judge improperly denied
his request to call an expert witness to testify regarding his allegation that a
July 31, 2012 letter in the agency file was forged or fraudulent. PFR File, Tab 1
at 10, 23; see IAF, Tab 5 at 12-13, Tab 27 at 17-18. The administrative judge
found that, because the appellant claimed that he had never received the letter,
any disputes regarding its authenticity were not relevant to the issues before the
Board. IAF, Tab 27 at 17. He declined to extrapolate from any alleged forgery
or fraud that the remainder of OPM’s proof of the overpayment was unreliable.
IAF, Tab 27 at 17-18; ID at 15.
¶40 We discern no abuse of discretion in the administrative judge’s decision to
deny the appellant’s request to call the expert witness to testify regarding the July
7
In addition to the issues described above, the appellant appears to have sent his
written closing statement to the Board and the agency by facsimile on October 29,
2015, but the agency contended that it did not receive the fax. IAF, Tab 34, Tab 36
at 4, Tab 39 at 2. Also, when filing his closing statement, the appellant did not include
a certificate of service, as required by the Board’s regulations. IAF, Tab 34; see
5 C.F.R. § 1201.26(b)(2) (providing that a certificate of service stating how and when
service was made must accompany each pleading served by a party).
19
31, 2012 letter. The administrative judge did not rely on the letter in his
findings. ID at 8-48. We further agree with the administrative judge that the
expert’s testimony regarding the letter would be insufficient to impugn the
reliability of the remainder of OPM’s evidence. IAF, Tab 27 at 17-18; ID at 15;
see Parsons v. United States, 670 F.2d 164, 166-67 (Ct. Cl. 1982) (observing that
there is a presumption that public officials perform their duties in good faith);
Thompson v. Office of Personnel Management, 81 M.S.P.R. 677, ¶¶ 6-8 (1999)
(finding that an administrative judge’s failure to adjudicate an appellant’s claim
that OPM discriminated against him in the calculation of his annuity was
harmless error because the employee who calculated the annuity correctly did so
pursuant to the applicable statute, a nondiscretionary function). Accordingly, the
appellant has failed to establish that the administrative judge disallowed relevant
testimony which could have affected the outcome of his appeal. Sanders v.
Social Security Administration, 114 M.S.P.R. 487, ¶ 10 (2010) (finding that, to
obtain reversal of an initial decision on the ground that the administrative judge
abused his discretion in excluding evidence, the petitioning party must show on
review that a relevant witness or evidence, which could have affected the
outcome, was disallowed).
¶41 The appellant also contends that the administrative judge improperly denied
his motion to compel the agency to respond to discovery requests for copies of
any complaints or disciplinary actions against K.J., the OPM employee who
prepared the July 15, 2015 reconsideration decision, and K.J.’s performance
evaluations. 8 PFR File, Tab 1 at 4; IAF, Tab 19 at 1-2, Tab 25 at 1-3, Tab 27
at 8-10. We find that the administrative judge did not abuse his discretion in
denying the appellant’s motion to compel responses to the discovery requests at
8
The administrative judge’s order denying the motion to compel also addressed other
discovery requests, but the appellant has not raised any specific challenge to the
administrative judge’s findings regarding those requests on review, and therefore, we
do not address them further. PFR File, Tab 1; IAF, Tab 27 at 8-14.
20
issue here. The appellant claimed below that the requested material would show
that OPM was careless in reaching its reconsideration decision. 9 IAF, Tab 27
at 9. The Board reviews OPM’s reconsideration decision on its merits, rather
than on the background of the individual who prepared the decision, and,
therefore, we agree with the administrative judge that the appellant failed to
demonstrate that the information sought was relevant to the issues in his appeal. 10
IAF, Tab 27 at 9-10; see 5 C.F.R. § 1201.72(a) (providing that discovery is the
process, apart from the hearing, by which a party may obtain relevant
information); see also Thompson, 81 M.S.P.R. 677, ¶¶ 6-8.
The appellant has not shown that the administrative judge was biased.
¶42 The appellant further asserts that the administrative judge was biased and
favored the agency in his rulings. PFR File, Tab 1 at 2, 7, 10, 21, 23. 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. Oliver v. Department of
Transportation, 1 M.S.P.R. 382, 386 (1980). We find nothing in the record
indicating that the administrative judge demonstrated any form of bias, and the
instances of alleged bias all pertain to the administrative judge’s rulings during
the proceedings. PFR File, Tab 1 at 2, 7, 10, 21, 23. Generally, such allegations
9
For the first time on review, the appellant claims that the documents that he requested
in discovery were relevant because they may have shown that K.J. was the person who
created the allegedly fraudulent July 31, 2012 letter. PFR File, Tab 1 at 4. The Board
generally will not consider an argument raised for the first time in a petition for review
absent a showing that it is based on new and material evidence not previously available
despite the party’s due diligence. Banks v. Department of the Air Force, 4 M.S.P.R.
268, 271 (1980). The appellant has not made such a showing here. Moreover, even if
we were to consider the appellant’s new argument, as discussed previously, the
appellant also has failed to demonstrate that the authenticity of the letter is relevant to
the dispositive issues in his appeal.
10
On review, the appellant also appears to contend that he was denied the opportunity
to cross‑examine K.J. at hearing. PFR File, Tab 1 at 3. However, the appellant did not
request to call K.J. as a witness at the hearing, even though he was aware that the
agency did not intend to call any witnesses. IAF, Tab 15 at 1, Tab 27 at 16-18.
21
may not form the basis of a finding of bias, and, here, we find they do not
overcome the presumption of fairness and impartiality afforded to the
administrative judge. See Vaughn v. Department of the Treasury, 119 M.S.P.R.
605, ¶ 18 (2013) (finding that the Board will not infer bias based on an
administrative judge’s case-related rulings).
¶43 Finally, we have considered the appellant’s numerous other arguments and
allegations of error on review and conclude that none of them form a basis for
disturbing the initial decision. For this reason, and the reasons discussed above,
we deny the appellant’s petition for review and affirm the initial decision.
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
You have the right to request further review of this final decision.
Discrimination Claims: Administrative Review
You may request review of this final decision on your discrimination
claims by the Equal Employment Opportunity Commission (EEOC). See title 5
of the United States Code, section 7702(b)(1) (5 U.S.C. § 7702(b)(1)). If you
submit your request 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 your request 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, NE
Suite 5SW12G
Washington, D.C. 20507
You should send your request to EEOC no later than 30 calendar days after your
receipt of this order. If you have a representative in this case, and your
representative receives this order before you do, then you must file with EEOC no
22
later than 30 calendar days after receipt by your representative. If you choose to
file, be very careful to file on time.
Discrimination and Other Claims: Judicial Action
If you do not request EEOC to review this final decision on your
discrimination claims, you may file a civil action against the agency on both your
discrimination claims and your other claims in an appropriate U.S. district court.
See 5 U.S.C. § 7703(b)(2). You must file your civil action with the district court
no later than 30 calendar days after your receipt of this order. If you have a
representative in this case, and your representative receives this order before you
do, then you must file with the district court no later than 30 calendar days after
receipt by your representative. If you choose to file, be very careful to file on
time. 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 security. See 42 U.S.C. § 2000e-5(f)
and 29 U.S.C. § 794a.
FOR THE BOARD: ______________________________
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.
Joseph W. Fairfield v. Office of Personnel Management
Combined Opinion