                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     VINCENT B. ANDERSON,                             DOCKET NUMBER
                   Appellant,                         SF-0845-15-0852-I-1

                  v.

     OFFICE OF PERSONNEL                              DATE: December 28, 2016
       MANAGEMENT,
                   Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Vincent B. Anderson, Madras, Oregon, pro se.

           Kristopher L. Rogers, 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 had received an overpayment of disability retirement
     benefits under the Federal Employees’ Retirement System (FERS) and that he


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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     was not entitled to 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 statu te
     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         Effective September 18, 1992, the appellant became a FERS disability
     retirement annuitant after separating from the Department of the Army. Initial
     Appeal File (IAF), Tab 8 at 5, 39, 54-56. In OPM’s brochure entitled, “Special
     Notice to FERS Disability Annuitants,” he was advised that, if he became eligible
     for disability benefits from the Social Security Administration (SSA) in the
     future, he had to immediately notify OPM and his disability retirement annuity
     would be reduced by a portion of the SSA disability benefits. Id. at 7, 33. OPM
     became aware that the appellant was approved for SSA disability benefits
     effective September 1, 2005. Id. at 5, 12, 22.
¶3         By letter dated March 18, 2015, OPM informed the appellant that it had
     adjusted his disability retirement annuity based on his entitlement to SSA
     disability benefits, and that he had received an annuity overpayment of $101,718
     for the period between September 1, 2005, and February 28, 2015. Id. at 12-15.
                                                                                      3

     OPM proposed to collect the overpayment in 471 installments of $21 5.87 and a
     final installment of $43.23.   Id. at 15.   The appellant made a Congressional
     inquiry, which OPM treated as a request for reconsideration of the overpayment
     notice. Id. at 5, 8-10. On September 3, 2015, OPM issued a reconsideration
     decision affirming its initial decision and finding that the appellant was not
     entitled to a waiver or adjustment of the overpayment. Id. at 5‑7.
¶4        The appellant filed a Board appeal of OPM’s reconsideration decision and
     requested a hearing. IAF, Tab 1 at 1-6. He alleged that he was not awarded a
     disability retirement annuity, but instead received a reduced or partial retirement
     annuity. IAF, Tab 1 at 4, Tab 3 at 1, 4, Tab 11 at 2, Tab 13 at 1. He also argued
     that he was entitled to a waiver of the overpayment based on financial hardship.
     IAF, Tab 3 at 2-3, Tab 11 at 1, Tab 13 at 1. The administrative judge issued an
     order in which she informed the appellant of his burden of proving an entitlement
     to a waiver or adjustment of the overpayment. IAF, Tab 10 at 2 -3.
¶5        After holding a hearing, the administrative judge issued an initial decision
     affirming OPM’s reconsideration decision as modified to adjust the repayment
     schedule.   IAF, Tab 21, Initial Decision (ID) at 1, 11.      She found that the
     appellant was awarded a disability retirement annuity subject to an offset for SSA
     disability benefits, and that OPM proved the existence and amount of the
     overpayment. ID at 4-5. She further found that the appellant failed to prove that
     he was entitled to a waiver of the overpayment because, although he was without
     fault in causing the overpayment, OPM had advised him that his annuity must be
     reduced for any SSA disability benefits, and he failed to establish exceptional
     circumstances warranting waiver.      ID at 5‑7.    However, she found that he
     demonstrated financial hardship warranting an adjustment of the repayment
     schedule, and she set the repayment schedule to 806 monthly installments of
     $125 with a final installment of $104.52. ID at 7-11.
                                                                                        4

¶6        The appellant has filed a petition for review. Petition for Review (PFR)
     File, Tab 1. The agency has filed a response. PFR File, Tab 4. The appellant has
     filed a reply to the agency’s response. PFR File, Tab 5.

                     DISCUSSION OF ARGUMENTS ON REVIEW
¶7        OPM bears the burden of proving the existence and amount of an annuity
     overpayment by preponderant evidence. 2           Vojas v. Office of Personnel
     Management, 115 M.S.P.R. 502, ¶ 10 (2011); 5 C.F.R. § 845.307(a).                The
     appellant has the burden of proving by substantial evidence 3 that he is entitled to
     a waiver or adjustment of the overpayment.         Vojas, 115 M.S.P.R. 502, ¶ 18;
     5 C.F.R. §§ 845.307(b), 1201.56(b)(2)(ii). Recovery of an overpayment may be
     waived when the annuitant is without fault and recovery would be against equity
     and good conscience.        5 U.S.C. § 8470(b); Vojas, 115 M.S.P.R. 502, ¶ 18;
     5 C.F.R. § 845.301. Here, the agency conceded that the appellant was without
     fault in the creation of the overpayment. ID at 5; IAF, Tab 10 at 1. However,
     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—which do not include
     financial hardship—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); IAF, Tab 8 at 72.
¶8        On review, the appellant requests that the overpayment be waived and that
     OPM return the amount already collected from him. PFR File, Tab 1 at 1, Tab 5.
     Although the appellant testified that he did not remember receiving OPM’s notice


     2
      A preponderance of the evidence is the degree of relevant evidence that a reasonable
     person, considering the record as a whole, would accept as sufficient to find that a
     contested fact is more likely to be true than untrue. 5 C.F.R. § 1201.4(q).
     3
       Substantial evidence is the degree of relevant evidence that a reasonable person,
     considering the record as a whole, might accept as adequate to support a conclusion,
     even though other reasonable persons might disagree. 5 C.F.R. § 1201.4(p).
                                                                                              5

      of the requirement to reduce his disability retirement annuity by SSA disability
      benefits, the administrative judge found, based on documents presented by OPM,
      that the appellant had conversations with OPM staff regarding his need to apply
      for SSA disability benefits. ID at 6; IAF, Tab 8 at 33, 51-53, Tab 19, Hearing
      Compact Disc (14:00-15:45). The appellant does not challenge this finding on
      review. Thus, we agree with the administrative judge’s finding that the appellant
      failed to establish his entitlement to a waiver because he should have set aside the
      overpayments to repay the debt and did not show any exceptional circumstances.
      ID at 6-7; see Dorrello v. Office of Personnel Management, 91 M.S.P.R. 535, ¶ 7
      (2002) (stating that, if an appellant is aware of the set-aside requirement, the
      collection     of    the   overpayment      cannot    be   waived    absent   exceptional
      circumstances, which does not include financial hardship). 4
¶9            In his petition for review, the appellant repeats his claim that he received a
      reduced or partial retirement annuity instead of a disability retirement annuity .
      PFR File, Tab 1 at 1, Tab 5. To support this claim, he submits a letter from OPM
      dated March 29, 1993, rejecting his application for disability retirement. 5
      PFR File, Tab 1 at 5-7.         He also alleges that, when he turned age 62, OPM
      “removed the disability label and made [his retirement] a regular retirement .”
      PFR File, Tab 5.
¶10           The record supports the administrative judge’s finding that the appellant
      applied, and was approved, for disability retirement. ID at 4; IAF, Tab 8 at 5,
      54‑56, Tab 15 at 20-22. Further, the appellant does not provide any support for
      his claim that OPM converted his disability retirement into a “regular” retirement

      4
        The parties do not dispute, and we find no reason to disturb, the administrative
      judge’s finding that OPM’s recovery schedule would cause the appellant a financial
      hardship, or her adjustment of the repayment schedule. ID at 11; see Dorrello,
      91 M.S.P.R. 535, ¶ 7 (considering that, even when waiver of recovery is not
      appropriate, the repayment schedule may be adjusted based on financial hardship);
      5 C.F.R. § 845.301.
      5
          This letter was part of the record below. IAF, Tab 20 at 4 -6.
                                                                                       6

when he turned age 62. Thus, under 5 U.S.C. § 8452(a)(2)(A), OPM was required
to offset his disability retirement annuity by his SSA disability benefits. ID at 5;
see, e.g., Noland v. Office of Personnel Management, 80 M.S.P.R. 89, ¶ 2 (1998)
(finding that an appellant’s FERS disability retirement annuity benefits were
subject to reduction based on his concurrent receipt of SSA disability benefits).
Accordingly, we find that the administrative judge properly affirmed OPM’s
reconsideration decision as modified to adjust the repayment schedule. 6

                 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).




6
  OPM has advised the Board that it may seek recovery of any debt remaining upon an
appellant’s death from his or her estate or other responsible party. A party responsible
for any debt remaining upon the appellant’s death may include an heir (spouse, child, or
other) who is deriving a benefit from the appellant’s Federal benefits, an heir or other
person acting as the representative of the appellant’s estate if, for example, the
representative fails to pay the United States before paying the claims of other creditors
in accordance with 31 U.S.C. § 3713(b), or transferees or distributers of the appellant’s
estate.
                                                                                  7

      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,
2012). You may read this law as well as other sections of t he 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 ma y 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:                            ______________________________
                                          Jennifer Everling
                                          Acting Clerk of the Board
Washington, D.C.
