Sidney Nelson, Jr. v. Office of Personnel Management ( 2014 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
SIDNEY NELSON, JR., DOCKET NUMBER
Appellant, SF-0845-13-0347-I-1
v.
OFFICE OF PERSONNEL DATE: August 15, 2014
MANAGEMENT,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL *
Sidney Nelson, Jr., Seattle, Washington, pro se.
Kristine Prentice, Washington, D.C., for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Anne M. Wagner, Vice Chairman
Mark A. Robbins, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
affirmed the Office of Personnel Management’s (OPM) reconsideration decision
which found that he had received an overpayment of annuity benefits under the
Federal Employees’ Retirement System in the amount of $36,505.58. Generally,
*
A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
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 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, and based on the following
points and authorities, 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 bears the burden of establishing his entitlement to a waiver
by substantial evidence. 5 C.F.R. § 845.307(b); Knox v. Office of Personnel
Management, 107 M.S.P.R. 353, ¶ 5 (2007). A waiver may be granted when the
annuitant is without fault and recovery would be against equity and good
conscience. 5 U.S.C. § 8470(b); 5 C.F.R. § 854.301. OPM policy further
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—which do not include
financial hardship—recovery in these cases is not against equity and good
conscience. IAF, Tab 6, Subtab 6 (Policy Guidelines on the Disposition of
Overpayments under the Civil Service Retirement System and Federal Employees
Retirement System, § I.B.6.)
¶3 Here, the appellant’s petition for review does not challenge OPM’s
calculation of the overpayment or his receipt of the monies. Petition for Review
File, Tab 1. Rather, the appellant argues that the administrative judge erred by
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finding him not to be without fault in the overpayment. The appellant reasserts
his argument that it was not his fault if he received an overpayment and that he is
entitled to a waiver of the overpayment because it is OPM’s responsibility to mail
him a disability annuity check with the correct amount. Id.
¶4 We have considered the appellant’s arguments on review concerning the
administrative judge’s weighing of the evidence, however, we discern no reason
to reweigh the evidence or substitute our assessment of the record evidence for
that of the administrative judge. See Crosby v. U.S. Postal Service, 74 M.S.P.R.
98, 105-106 (1997) (finding no reason to disturb the administrative judge’s
findings when the administrative judge 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).
¶5 In this case, the administrative judge thoroughly addressed this issue and
found that the appellant is not entitled to a waiver or adjustment of the
overpayment. Initial Decision (ID) at 5-11. Specifically, the administrative
judge found that the appellant did not dispute the existence or amount of the
overpayment. ID at 5. The administrative judge found further that, in 2001,
while the appellant was receiving disability retirement benefits from his
retirement with the Postal Service, the appellant was also working for the Internal
Revenue Service and receiving a salary that nearly matched what he had received
from the Postal Service prior to his retirement, and that he did not advise OPM of
his IRS salary. ID at 7. The administrative judge also found that OPM’s April 4,
2005 letter provided the appellant with written notice of the 80% limitation on
annual earnings for a disability retiree and it notified him of his base salary, and
thus, the appellant had specific notice of his 80% limitation on earnings by April
4, 2005. Nonetheless, the appellant earned over $40,000.00 annually in 2005,
2006, and 2007. Thus, the administrative judge found that the appellant is not
entitled to a waiver of the overpayment because he was not without fault in
creating it. ID at 8. With regard to the repayment schedule, the administrative
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judge found that the appellant failed to submit substantial evidence sufficient to
establish what his monthly income is or whether his spouse has an income. ID
at 10. The administrative judge found further that the appellant also failed to
submit a current Financial Resources Questionnaire (FRQ) (the only FRQ in the
file is dated 2006), and that, while most of the monthly expenses the appellant
claims in an unsworn narrative are reasonable, he also claims that he has
$800,000.00 in student loans, but he submitted no verification for such an
extraordinary debt. ID at 10. Accordingly, the administrative judge found that
the appellant failed to establish by substantial evidence that he is entitled to any
adjustment of the recovery schedule. ID at 11. While the appellant does not
agree with the administrative judge’s findings and determinations, he has
provided no basis upon which to disturb them. The appellant’s mere
disagreement with the administrative judge’s findings and credibility
determinations does not warrant full review of the record by the Board. See
Gager v. Department of Commerce, 99 M.S.P.R. 216, ¶5 (2005); Weaver v.
Department of the Navy, 2 M.S.P.R. 129, 133-34 (1980), review denied, 669 F.2d
613 (9th Cir. 1982) (per curiam). Accordingly, the appellant has provided no
basis upon which to disturb the initial decision.
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
You have the right to request review of this final decision by the United
States 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.
5
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 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 your court
appeal, you may visit our website at http://www.mspb.gov/probono for a list of
attorneys who have expressed interest in providing pro bono representation for
Merit Systems Protection Board appellants before the court. 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.