Anderson v. Opm , 713 F. App'x 1003 ( 2017 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
VINCENT B. ANDERSON,
Petitioner
v.
OFFICE OF PERSONNEL MANAGEMENT,
Respondent
______________________
2017-1597
______________________
Petition for review of the Merit Systems Protection
Board in No. SF-0845-15-0852-I-1.
______________________
Decided: October 16, 2017
______________________
VINCENT B. ANDERSON, Madras, OR, pro se.
JOSHUA A. MANDLEBAUM, Commercial Litigation
Branch, Civil Division, United States Department of
Justice, Washington, DC, for respondent. Also represent-
ed by CHAD A. READLER, ROBERT E. KIRSCHMAN, JR.,
FRANKLIN E. WHITE, JR.
______________________
Before DYK, REYNA, and WALLACH, Circuit Judges.
2 ANDERSON v. OPM
PER CURIAM.
Vincent Anderson petitions for review of a final deci-
sion of the Merit Systems Protection Board (“MSPB” or
“Board”). The Board sustained the denial of Anderson’s
request to waive recovery of an alleged overpayment by
the Office of Personnel Management (“OPM”). We affirm.
BACKGROUND
Mr. Anderson was employed as a heavy-equipment
repair technician with the Oregon National Guard. In
1990, he injured his ankle, and in 1992, this injury led to
his honorable discharge.
In 1992, Mr. Anderson filled an application for imme-
diate retirement based on disability under the Federal
Employees Retirement Systems (“FERS”), and applied for
disability benefits from the Social Security Administra-
tion (“SSA”). Mr. Anderson’s Social Security disability
application was denied on September 29, 1992. On March
29, 1993, OPM denied petitioner’s application for regular
disability retirement but notified Mr. Anderson that he
might be eligible for disability retirement under the
“Special Provisions” for National Guard Technicians
under Public Law No. 97-253. Anderson re-applied under
this provision, and on April 13, 1993, OPM notified Mr.
Anderson that his disability retirement had been ap-
proved.
Shortly thereafter, in a Special Notice to FERS Disa-
bility Annuitants, Mr. Anderson was advised that if he
were later awarded Social Security disability payments
(“SSDI”), he was required to notify OPM immediately,
and his disability annuity would be reduced accordingly.
In 2005, Mr. Anderson was awarded SSDI but failed to
notify OPM. On January 8, 2015, OPM became aware
that petitioner had been receiving SSDI.
On March 18, 2015, OPM informed Mr. Anderson that
it would reduce his disability retirement benefits by the
ANDERSON v. OPM 3
amount that he was entitled to receive from Social Securi-
ty. OPM also notified Mr. Anderson that he had received
overpayments amounting to $101,718 for the period
between September 1, 2005, and February 28, 2015, and
that he would have to make monthly repayment in 471
installments of $215.87 with a final installment of $43.23.
Mr. Anderson wrote Congressman Greg Walden complain-
ing about OPM’s decision, which OPM treated as a re-
quest for a waiver of the overpayment.
In response to the waiver request, on September 3,
2015, a Merit Systems Protection Board Administrative
Judge (“AJ”) issued a decision that adjusted Mr. Ander-
son’s repayment schedule from 471 installments of
$215.87 with a final installment of $43.23 to 806 install-
ments of $125 with a final installment of $104.52, based
on a finding that the initial repayment schedule would
create financial hardship for Mr. Anderson. Mr. Anderson
then sought review of that decision by the full Board, and
on December 28, 2016, the Board denied Mr. Anderson’s
petition and affirmed the ruling of the AJ.
Anderson seeks review in this court. We have jurisdic-
tion pursuant to 5 U.S.C. § 7703(b)(1) and 28 U.S.C. §
1295(a)(9).
DISCUSSION
The scope of this court’s review of a Board decision is
limited. We only set aside the Board's decision if it was
“(1) arbitrary, capricious, an abuse of discretion, or other-
wise not in accordance with law; (2) obtained without
procedures required by law, rule, or regulation having
been followed; or (3) unsupported by substantial evi-
dence.” 5 U.S.C. § 7703(c); accord Briggs v. Merit Sys.
Prot. Bd., 331 F.3d 1307, 1311 (Fed. Cir. 2003).
Petitioner claims that the Board failed to take into ac-
count the March 29, 1993, letter from OPM. Petitioner
contends that this letter confirms he received a normal
4 ANDERSON v. OPM
retirement, not a disability retirement. Anderson argues
that since he did not receive a disability retirement, his
annuity payments should not be offset.
However, the March 29, 1993, letter informing Mr.
Anderson that OPM would not approve his disability
retirement under the Civil Service Retirement System
(“CSRS”) or FERS is not helpful to petitioner. The subse-
quent April 13, 1993, letter informs petitioner that he
would receive disability retirement under the Special
Provisions. While Mr. Anderson did not receive a normal
disability retirement under the CSRS or the FERS, he
undisputedly received a disability retirement under the
“Special Provisions” for National Guard Technicians,
under the FERS, on April 13, 1993.
The Board correctly ruled that this Special Provision
is a form of disability retirement, which must be reduced
by SSA benefits. 5 U.S.C. § 8452(a)(2)(A) requires that
“[f]or any month in which an annuitant is entitled both to
an annuity under this subchapter. . . and to a disability
insurance benefit under section 223 of the Social Security
Act, the annuitant's annuity for such month (as so com-
puted) shall. . . be reduced by 100 percent of the annui-
tant's assumed disability insurance benefit for such
month.” Mr. Anderson appears to be receiving disability
retirement annuity payments under 5 U.S.C. § 8456. This
is in the same “subchapter” as 5 U.S.C. § 8452(a)(2)(A).
Therefore, OPM was correct to offset Mr. Anderson’s
disability retirement annuity by his SSDI benefits. We
find no abuse of discretion in denying Mr. Anderson a
waiver.
AFFIRMED
COSTS
No costs.