                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     CARLOS I. APONTE,                               DOCKET NUMBER
                   Appellant,                        NY-0831-15-0279-I-1

                  v.

     OFFICE OF PERSONNEL                             DATE: April 29, 2016
       MANAGEMENT,
                   Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL *

           Carlos I. Aponte, Jayuya, Puerto Rico, pro se.

           Cynthia Reinhold, 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 by the Office of Personnel Management
     (OPM) concerning his disability retirement annuity under the Federal Employees’
     Retirement System (FERS). Generally, we grant petitions such as this one only


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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     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).

                     DISCUSSION OF ARGUMENTS ON REVIEW
¶2        The appellant retired on disability under FERS effective June 21, 2007.
     Initial Appeal File (IAF), Tab 1. Effective February 1, 2008, the Social Security
     Administration (SSA) awarded the appellant a disability benefit.        IAF, Tab 7
     at 59‑64.
¶3        By letter dated February 15, 2013, OPM informed the appellant that it had
     recalculated his annuity. IAF, Tab 7 at 22-24. OPM explained that, for the first
     12 months of his retirement, he was entitled to an annuity of 60 percent of his
     high-3 average salary, minus the full amount of his SSA disability benefit, and
     that after the first 12 months, he was entitled to an annuity of 40 percent of his
     high-3 salary, minus 60 percent of his SSA disability benefit.       Id. at 23; see
     5 U.S.C. § 8452(a)(2). OPM further explained that, if his earned benefit, based
     on years of service, exceeded his disability annuity under the applicable formula,
     he was entitled to the earned benefit. IAF, Tab 7 at 23; see 5 U.S.C. § 8452(d).
     OPM calculated that, at the time of his retirement, the appellant was entitled to a
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     disability annuity of $2,187.00 per month, i.e., 60 percent of his high-3 average
     salary of $43,747.00.      IAF, Tab 7 at 25.     However, OPM found that, as of
     February 1, 2008, when the appellant became entitled to SSA benefits of
     $1842.00 per month, his annuity under 5 U.S.C. § 8452(a) was reduced to
     $345.00.   Id.   OPM further found that, effective July 1, 2008, the appellant’s
     disability benefit was $353.00, i.e., 40 percent of his high-3 average salary, minus
     60 percent of his SSA benefit. Id. at 26. OPM calculated that the appellant’s
     earned benefit, based on his 14 years 1 month of law enforcement officer (LEO)
     service, times 1.7 percent, and 6 years 10 months of additional service, times
     1 percent, was $1,121 per month, subject to cost of living adjustments. Id. at 28.
     Accordingly, OPM found that from February 1, 2008 onward, the appellant was
     entitled to his earned benefit, which was greater than the reduced disability
     annuity. Id. at 23, 25-26; see 5 U.S.C. § 8452(d).
¶4         The appellant requested reconsideration, and, on June 15, 2015, OPM issued
     a final decision affirming its annuity calculation. IAF, Tab 7 at 7-9, 12-13. On
     appeal to the Board, the appellant argued that OPM improperly reduced his
     disability annuity based on his SSA benefits. IAF, Tab 1. Following a hearing,
     the   administrative     judge   issued   an   initial   decision   affirming   OPM’s
     reconsideration decision. IAF, Tab 12, Initial Decision (ID). This petition for
     review followed.       Petition for Review (PFR) File, Tab 1.       OPM has filed a
     response, arguing in general terms that the appellant’s petition does not meet the
     criteria for review. PFR File, Tab 3.
¶5         On review, the appellant cites Stephenson v. Office of Personnel
     Management, 705 F.3d 1323 (Fed. Cir. 2013), and Hatch v. Office of Personnel
     Management, 97 M.S.P.R. 669 (2004), recons. denied, 100 M.S.P.R. 204 (2005),
     for the proposition that “OPM cannot punish based on their calculation of
     retirement benefit an individual who retire based on disability.” PFR File, Tab 1.
     We have considered these decisions, and we find that neither supports the
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     appellant’s contention that OPM improperly reduced his disability annuity to
     account for his SSA disability benefit.
¶6        In Stephenson, the U.S. Court of Appeals for the Federal Circuit found that
     OPM had improperly reduced Mr. Stephenson’s FERS disability annuity pursuant
     5 U.S.C. § 8452(a)(2) during a period when he was performing substantial gainful
     activity and was therefore not entitled to SSA disability benefits. However, the
     court also held that, when a person receiving a FERS disability annuity is entitled
     to receive an SSA disability benefit, 5 U.S.C. § 8452(a)(2) requires that the FERS
     disability annuity be reduced to account for the SSA benefit.          Stephenson,
     705 F.3d at 1324, 1326‑27.     Here, there is no dispute that the appellant was
     entitled to SSA benefits during the period his FERS disability annuity was
     reduced pursuant to 5 U.S.C. § 8452(a)(2).
¶7        In Hatch, the Board held that the appellant’s service for a specified time
     was properly treated as full-time rather than part-time service for purposes of
     retirement credit, when he was assigned to a full-time position during that period,
     but was given leave without pay (LWOP) for 4 hours a day because of his
     continuing medical inability to work full days, and received Office of Workers’
     Compensation Programs (OWCP) benefits for the 4 hours of leave. The issue of
     SSA benefits did not arise in Hatch, and there is no evidence indicating that the
     appellant in this case was ever on LWOP or received OWCP benefits. Hatch is
     therefore inapposite.
¶8        The appellant also argues that the administrative judge failed to consider
     the sworn statement of a certified public accountant, M.L., who concluded that
     the correct amount of the appellant’s FERS disability annuity was $2,341.00. See
     IAF, Tab 7 at 17-19.    However, the fact that the administrative judge did not
     mention M.L.’s statement does not mean that he did not consider it in reaching
     his decision.    See Marques v. Department of Health & Human Services,
     22 M.S.P.R. 129, 132 (1984), aff’d, 776 F.2d 1062 (Fed. Cir. 1985) (Table). In
     any event, M.L. failed to show his arithmetic, and we find his opinion
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     unpersuasive. Rather, for the reasons explained in the initial decision, we find
     that OPM complied with the provisions of 5 U.S.C. § 8352 in calculating the
     appellant’s disability annuity. ID at 2‑4.
¶9      Finally, the appellant contends that OPM failed to take his LEO service into
     account in calculating his earned annuity. PFR File, Tab 1. However, the record
     reflects that OPM did consider the appellant’s LEO service in calculating his
     earned benefit. IAF, Tab 7 at 22, 28. The appellant has not shown that OPM
     erred in its calculation.    Accordingly, we find the appellant has not met his
     burden of proving by preponderant evidence that he is entitled to the retirement
     benefits he seeks.      See Villanueva v. Office of Personnel Management,
     52 M.S.P.R. 368, 370-61, aff’d, 980 F.2d 1431 (Fed. Cir. 1992).

                     NOTICE TO THE APPELLANT REGARDING
                        YOUR FURTHER REVIEW RIGHTS
           You have the right to request review of this final decision by the U.S.
     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. 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 U.S. Code, section 7703 (5 U.S.C. § 7703) (as rev. eff. Dec. 27,
                                                                                  6

2012). You may read this law as well as other sections of the U.S. 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 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
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.
