Friedman v. Office of Personnel Management , 153 F. App'x 719 ( 2005 )


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  •                      NOTE: Pursuant to Fed. Cir. R. 47.6, this disposition
    is not citable as precedent. It is a public record.
    United States Court of Appeals for the Federal Circuit
    05-3068
    STEVEN H. FRIEDMAN,
    Petitioner,
    v.
    OFFICE OF PERSONNEL MANAGEMENT,
    Respondent.
    ___________________________
    DECIDED: October 12, 2005
    ___________________________
    Before MAYER, CLEVENGER, DYK, Circuit Judges.
    PER CURIAM.
    Steven H. Friedman petitions for review of the decision of the Merit Systems
    Protection Board (“Board”), upholding the refusal by the Office of Personnel
    Management (“OPM”) to waive repayment of the duplicate disability benefits that
    Friedman received. We affirm.
    BACKGROUND
    Friedman received disability retirement benefits from both the Federal
    Employees Retirement System (“FERS”) and the Social Security Administration (“SSA”)
    for the period of September 1, 2000, to August 30, 2002. It is undisputed that an
    individual may not receive payment of full benefits from both the FERS and the SSA
    concurrently. 
    5 U.S.C. § 8452
    (a)(2) (2000). Consequently, OPM—which administers
    FERS payments—determined that Friedman was required to repay the overpaid
    benefits amounting to $22,260.00. OPM imposed a repayment schedule of $125.00 per
    month for 178 months, to be withheld from Friedman’s monthly retirement benefit.
    OPM’s determination was affirmed by the administrative judge (“AJ”), except that the
    repayment schedule was modified to require payment only at the rate of $75.00 per
    month. The full Board denied review of the AJ’s decision. Friedman timely appealed
    the Board’s decision to this Court.     We have jurisdiction pursuant to 
    28 U.S.C. § 1295
    (a)(9) (2000).
    DISCUSSION
    Friedman maintains that the Board’s affirmance is flawed because:          (1) his
    mental state should be a basis for waiving the repayment altogether; and alternatively,
    (2) his repayment should be reduced by the amount of attorney’s fees he incurred when
    applying for disability benefits from the SSA; and (3) his repayment schedule should be
    reduced to $5 per month due to his financial circumstances.
    We must affirm the Board’s decision unless it is found to be arbitrary, capricious,
    an abuse of discretion, or otherwise not in accordance with law; obtained without
    procedures required by law, rule or regulation; or unsupported by substantial evidence.
    
    5 U.S.C. § 7703
    (c) (2000); Butterbaugh v. Dep’t of Justice, 
    1336 F.3d 1332
    , 1336 (Fed.
    Cir. 2003).
    I
    Waiver of a repayment is available when, “in the judgment of the [OPM], the
    individual is without fault and recovery would be against equity and good conscience.” 
    5 U.S.C. § 8470
    (b) (2000).      In accordance with our conclusion regarding identical
    05-3068                                 2
    language in the Civil Service Retirement Act, this provision grants OPM discretion to
    determine whether to waive a repayment. See Grabis v. Office of Pers. Mgmt., No. 04-
    3239, slip op. at 9 (Fed. Cir. Sept. 27, 2005) (construing 
    5 U.S.C. § 8436
    (b) (2000)).
    OPM’s “set-aside rule” requires that when an individual is aware that he has received an
    overpayment, he is obligated under principles of equity and good conscience to set
    aside the amount overpaid for repayment to the OPM. OPM Policy Guidelines on the
    Disposition of Overpayments § I.C.4. When an individual fails to set aside the overpaid
    amount, he cannot—absent a showing of exceptional circumstances—claim that it is
    against equity and good conscience for OPM to recover the repayment. Id.
    OPM informed Friedman of its “set-aside” requirement when it initially approved
    his application for benefits. In its approval letter, OPM stated that “Social Security
    checks should not be negotiated until the FERS benefit has been reduced. The Social
    Security checks will be needed to pay OPM for the reduction which should have been
    made in the FERS annuity.” J.A. at 48. Friedman nonetheless failed to set aside the
    amount he was overpaid. Before the Board, Friedman argued that his mental state was
    an exceptional circumstance requiring the waiver of repayment because he suffered
    from   severe   mental   problems    including   stress,   problems   with   interpersonal
    relationships, and depression. Friedman’s doctor testified that Friedman experienced
    anxiety and depression. However, the doctor also testified that in general Friedman
    could tend to the normal affairs of living, maintaining a home, and conducting
    household-related business. The Board determined that Friedman’s mental problems
    were not so severe as to constitute an exceptional circumstance justifying a waiver. We
    conclude that that finding is supported by substantial evidence.
    05-3068                                 3
    II
    Friedman also argues that OPM should deduct from his repayment amount the
    attorney’s fees he incurred for pursuing disability benefits from the SSA, because
    Friedman was required, as a recipient of FERS benefits, to apply for SSA benefits. The
    AJ denied this request, noting that “[t]here is no provision in the statute [
    5 U.S.C. § 8470
    ] for a reduction in the overpaid amount for any attorney fees incurred in obtaining
    SSA benefits.”    J.A. at 8 n.1.   Friedman claims that the attorney’s fees should be
    deducted as a matter of “equity and good conscience” because he was required to
    pursue the SSA benefits. Although Friedman was required to apply for SSA benefits,
    he was not required to obtain counsel to do so. Friedman does not explain why the
    payment of attorney’s fees constitutes an “exceptional circumstance” justifying a partial
    waiver. We find no error in the Board’s refusal to reduce the repayment amount by
    Friedman’s attorney’s fees.
    III
    Finally, Friedman argues that his repayment should have been reduced to $5 per
    month. When an individual is not entitled to a waiver, he may still be entitled to an
    adjustment of his repayment schedule if he shows financial hardship.         
    5 C.F.R. § 845.301
     (2005).    The AJ found that after Friedman’s fixed monthly expenses are
    deducted from his monthly income, he is left with $380.00 for non-fixed living expenses
    consisting of food, gasoline, and emergency expenses, and that he “requires
    substantially all of his income to meet ordinary and necessary living expenses.” J.A. at
    10. After conducting a review of Friedman’s expenses, the AJ decided to modify OPM’s
    05-3068                                 4
    repayment schedule of $125 per month to $75 per month to ensure that Friedman has
    enough remaining for non-fixed monthly expenses. Friedman has provided no basis on
    which to disturb the Board’s decision not to further reduce his repayment obligation.
    CONCLUSION
    For the foregoing reasons, the Board’s decision is affirmed.
    COSTS:
    No costs.
    05-3068                                 5
    

Document Info

Docket Number: 2005-3068

Citation Numbers: 153 F. App'x 719

Judges: Clevenger, Dyk, Mayer, Per Curiam

Filed Date: 10/12/2005

Precedential Status: Non-Precedential

Modified Date: 8/3/2023