                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     JOSEPH W. FAIRFIELD,                            DOCKET NUMBER
                   Appellant,                        SF-0845-15-0738-I-1

                  v.

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



             THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Joseph W. Fairfield, Shasta Lake, California, pro se.

           Karla W. Yeakle, 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 was overpaid $33,195.00 in disability annuity benefits
     under the Federal Employees’ Retirement System (FERS) and was not entitled to


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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     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 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).

                                     BACKGROUND
¶2        The appellant is a FERS disability retirement annuitant. Initial Appeal File
     (IAF), Tab 2 at 7, Tab 5 at 40, 44, 55. By letter dated September 19, 2012, OPM
     informed the appellant that his FERS annuity would be reduced if he were
     awarded Social Security Administration (SSA) disability benefits and that he
     would be required to repay any resulting FERS annuity overpayment. IAF, Tab 5
     at 15, Tab 31, Hearing Compact Disc (HCD) (testimony of the appellant).
     Included with the letter was a form for the appellant to complete upon his receipt
     of an SSA award. IAF, Tab 5 at 15-16.
¶3        In May 2014, the appellant was awarded SSA disability benefits, retroactive
     to October 1, 2012.     IAF, Tab 5 at 26-27, Tab 8 at 26, Tab 18 at 1; HCD
     (testimony of the appellant). Subsequently, in late May or early June 2014, the
     appellant mailed OPM a completed copy of the form enclosed with the September
     19, 2012 letter, notifying OPM that he had been awarded SSA disability benefits.
                                                                                     3

     IAF, Tab 8 at 26, 32, 47; HCD (testimony of the appellant).         The appellant
     followed up with OPM by telephone and in writing on several occasions between
     June and October 2014. IAF, Tab 8 at 33‑34, 38, 47, 51-53; HCD (testimony of
     the appellant).
¶4        Approximately 9 months after the appellant mailed the form to OPM, by
     letter dated February 28, 2015, OPM informed the appellant that his FERS
     annuity benefit would be reduced based on his entitlement to SSA disability
     benefits and that he had received a FERS annuity overpayment of $33,195.00 for
     the period between October 2012 through the end of February 2015. IAF, Tab 5
     at 21-22. OPM proposed to collect the overpayment in 65 monthly installments
     of $510.09 and a final installment of $39.15. Id. at 22.
¶5        The appellant submitted a timely request for reconsideration of the
     overpayment notice. Id. at 25. Approximately 4 months later, on July 16, 2015,
     OPM issued a reconsideration decision affirming its initial decision and finding
     that the appellant was not entitled to a waiver of the overpayment, but adjusting
     the collection schedule to 97 monthly installments of $340.00 and a final
     installment of $215.00. Id. at 7-11.
¶6        The    appellant   filed   a   timely   Board   appeal   challenging   OPM’s
     reconsideration decision. IAF, Tab 2. He argued that OPM had miscalculated
     the overpayment and that the overpayment should be waived. IAF, Tab 2 at 5,
     Tab 8 at 2, Tab 18 at 1-2, 7-8, Tab 34 at 2, 6, 8, Tab 37 at 2; HCD (testimony of
     the appellant).   The appellant also raised a number of affirmative defenses,
     including discrimination based on disability and age, a violation of due process,
     harmful procedural error, and that OPM’s action was not in accordance with the
     law. IAF, Tab 2 at 6-7, Tab 8 at 1, Tab 13 at 1, Tab 19 at 7-10, Tab 27 at 5-8,
     Tab 34 at 2, 8.
¶7        After holding the appellant’s requested hearing, the administrative judge
     issued an initial decision affirming OPM’s reconsideration decision.         IAF,
                                                                                               4

     Tab 40, Initial Decision (ID) at 1-2. The administrative judge found that OPM
     proved the existence and amount of the overpayment. ID at 8-21. He further
     found that the appellant failed to prove that he was entitled to a waiver of the
     overpayment because, although the appellant was without fault in causing the
     overpayment, ID at 22-23, OPM’s September 12, 2012 letter informed him of the
     set‑aside rule, ID at 24-29, and he failed to establish exceptional circumstances
     warranting waiver, ID at 30-38.         Finally, the administrative judge denied the
     appellant’s affirmative defenses. 2 ID at 40-44 nn.21, 48.
¶8         The appellant has filed a timely petition for review of the initial decision,
     alleging that the administrative judge made factual, legal, and procedural errors.
     Petition for Review (PFR) File, Tab 1. 3 The agency has responded in opposition
     to the petition for review. PFR File, Tab 4.




     2
       On review, the appellant does not appear to contest the administrative judge’s findings
     that he failed to prove his affirmative defenses of discrimination based on disability and
     age, and we discern no basis to disturb these findings. Petition for Review File, Tab 1.
     3
       To be timely, a petition for review must be filed within 35 days of the date of issuance
     of the initial decision, or, if the petitioner shows that the initial decision was received
     more than 5 days after the date of issuance, within 30 days of the date the petitioner
     received the initial decision. 5 C.F.R. § 1201.114(e). The appellant has the burden of
     proof on the issue of timeliness. 5 C.F.R. § 1201.56(b)(2)(i)(B). Here, the initial
     decision was issued on December 21, 2015, with a finality date of January 25, 2016. ID
     at 1, 49. The appellant, who is not registered as an e‑filer, filed his petition for review
     by mail, with a postmark date of January 27, 2016. PFR File, Tab 1 at 26; 5 C.F.R.
     § 1201.4(1) (providing that the date of a filing by mail is the postmark date). The
     appellant subsequently submitted a statement, signed under penalty of perjury, that, as a
     result of delays in the mail, he did not receive the initial decision until January 2, 2016.
     PFR File, Tab 5 at 2-3. The appellant’s statement is unrebutted. Accordingly, because
     the appellant filed his petition for review 30 days after his receipt of the initial
     decision, we find that it was timely filed. 5 C.F.R. § 1201.114(e); see Comito v.
     Department of the Army, 90 M.S.P.R. 58, ¶ 1 n.1 (2001) (finding that a petition for
     review was timely where an appellant submitted an unrebutted statement under penalty
     of perjury that she received the initial decision more than 5 days after the date of
     issuance).
                                                                                      5

                     DISCUSSION OF ARGUMENTS ON REVIEW
      The administrative judge correctly found that OPM proved the existence and
      amount of the overpayment.
¶9         OPM bears the burden of proving the existence and amount of an annuity
      overpayment by preponderant evidence.           Vojas v. Office of Personnel
      Management, 115 M.S.P.R. 502, ¶ 10 (2011); 5 C.F.R. § 845.307(a). Here, in
      finding that OPM satisfied this burden, the administrative judge relied on records
      in the agency file, including, but not limited to: (1) the appellant’s individual
      retirement record; (2) the February 28, 2015 overpayment notice and an
      attachment explaining how the overpayment was calculated; (3) the July 16, 2015
      reconsideration decision; (4) OPM documentation explaining the calculation of
      the appellant’s FERS disability annuity benefit; (5) computer printouts reflecting
      OPM’s verification of the appellant’s SSA disability benefits; and (6) the
      appellant’s own disability retirement application. ID at 8-21; see IAF, Tab 5
      at 7-11, 22-24, 26-27, 41-58.
¶10        The administrative judge conducted a thorough and detailed review of
      OPM’s calculation of the overpayment. ID at 9-21. Applying the formula for
      FERS disability retirement annuities to the evidence in the agency file, he
      concluded that OPM correctly calculated the appellant’s annuity, addressing each
      of the appellant’s allegations of error.    ID at 10-11, 17-20; see 5 U.S.C.
      § 8452(a)(1)(A) (providing the formula for FERS disability retirement annuities);
      IAF, Tab 27 at 3-4, Tab 37 at 4; HCD (testimony of the appellant).            The
      administrative judge then proceeded to review OPM’s calculation of the
      statutorily required reduction in the appellant’s FERS annuity benefits based on
      his receipt of SSA disability benefits. ID at 9-13; see 5 U.S.C. § 8452(a)(2).
      After conducting this analysis, and determining the difference between the
      amount of FERS annuity benefits to which the appellant was entitled and the
      amount that he was paid for the time period at issue, the administrative judge
                                                                                       6

      concluded that OPM proved by a preponderance of the evidence that the appellant
      had received an overpayment of FERS disability retirement benefits in the
      amount of $33,195.00. ID at 11-13, 21.
¶11         On review, the appellant challenges the administrative judge’s finding that
      OPM proved the existence and amount of the overpayment.          PFR File, Tab 1
      at 3-10, 17, 24. As discussed below, we find that his arguments do not provide a
      basis to disturb the initial decision.
            The administrative judge properly considered the agency file as evidence of
            the existence and amount of the overpayment.
¶12         On review, as he did below, the appellant contends that the administrative
      judge erred in considering the agency file as evidence that OPM proved the
      existence and amount of the overpayment, because the agency file is hearsay, and
      according to the appellant, is unreliable. PFR File, Tab 1 at 3-10; IAF, Tab 34 at
      1-4; HCD (testimony of the appellant). We disagree.
¶13         It is well settled that relevant hearsay evidence is admissible in Board
      proceedings. Luten v. Office of Personnel Management, 110 M.S.P.R. 667, ¶ 12
      (2009); Borninkhof v. Department of Justice, 5 M.S.P.R. 77, 83 (1981).         Our
      reviewing court has held that hearsay evidence “may be accepted as preponderant
      evidence even without corroboration if, to a reasonable mind, the circumstances
      are such as to lend it credence.”        Kewley v. Department of Health & Human
      Services, 153 F.3d 1357, 1364 (Fed. Cir. 1998).          In Wisecup v. Office of
      Personnel Management, 30 M.S.P.R. 191, 193-94, aff’d, 809 F.2d 790 (Fed. Cir.
      1986) (Table), the Board found that, in the absence of significant rebuttal by an
      appellant, OPM’s records were sufficient to establish the existence and amount of
      an overpayment by preponderant evidence.          In reaching this conclusion, the
      Board considered the fact that the appellant did not identify any specific
      inaccuracies or discrepancies in OPM’s records, demonstrate that the records
      were not routinely made in the ordinary course of business, or demonstrate that
      the records were inherently unreliable, untrustworthy, or noncredible. Id. at 193.
                                                                                            7

¶14         Here, applying Wisecup, the administrative judge concluded that OPM’s
      evidence, although hearsay, was sufficient to establish the existence and amount
      of the overpayment. 4 ID at 14-16 & n.9. The administrative judge reviewed the
      records and verified OPM’s calculations. ID at 8-14. He further found that:
      (1) the records at issue were made in the ordinary course of OPM’s business as
      the administrator of the Federal retirement systems; (2) the records generally
      were accurate based on his review; and (3) the appellant failed to adduce any
      compelling contradictory evidence. ID at 15-16 & n.9.
¶15         On review, the appellant also argues that, in evaluating the probative value
      of OPM’s records, the administrative judge failed to follow the U.S. Supreme
      Court’s decision in Richardson v. Perales, 402 U.S. 389 (1971). PFR File, Tab 1
      at 4-6. To the contrary, in Perales, which involved an appeal from a denial of
      Social Security disability benefits, the Supreme Court found that hearsay
      evidence alone may constitute substantial evidence.           402 U.S. at 402; see
      Borninkhof, 5 M.S.P.R. at 84 (interpreting Perales as a rejection of any rule that
      hearsay may not per se constitute substantial evidence). To the extent that the
      appellant contends that the administrative judge was required to replicate the
      precise analysis that the Supreme Court used to evaluate the probative value of
      the medical reports in a Social Security disability benefits appeal, we disagree.
      PFR File, Tab 1 at 4-6.       Instead, the Board reviews the probative value of
      hearsay evidence in Board appeals under the factors set forth in Borninkhof,
      5 M.S.P.R. at 87. Social Security Administration v. Long, 113 M.S.P.R. 190, ¶ 27


      4
        On review, the appellant contends that the administrative judge failed to rule on his
      objection to the administrative judge’s consideration of the agency file. PFR File,
      Tab 1 at 7. To the contrary, the administrative judge conducted a detailed analysis of
      the issue and the appellant’s arguments and concluded that OPM’s records were reliable
      and probative. ID at 14-16 & n.9. For this same reason, the appellant’s allegations that
      the administrative judge failed to explain his reasoning, as required by Spithaler v.
      Office of Personnel Management, 1 M.S.P.R. 587, 589 (1980), are without merit. PFR
      File, Tab 1 at 7, 23.
                                                                                            8

      (2010), aff’d, 635 F.3d 526 (Fed. Cir. 2011).              Here, we find that the
      administrative judge considered the Borninkhof factors relevant to analyzing
      OPM records in an overpayment appeal, as identified in Wisecup, and correctly
      concluded that OPM’s records were sufficient to establish the existence and
      amount of the overpayment. ID at 15-16 & n.9.

            The appellant has failed to demonstrate any error in the administrative
            judge’s finding that OPM proved that it correctly calculated the amount of
            the overpayment.
¶16         On review, the appellant challenges the administrative judge’s finding that
      OPM proved that it correctly calculated the amount of the overpayment.
      PFR File, Tab 1 at 9, 13, 24. He contends that the administrative judge failed to
      consider his allegation at the hearing that there was some degree of variation in
      the amount of SSA disability benefits that he received each month. Id. at 9.
¶17         We agree with the administrative judge that OPM properly reduced the
      appellant’s FERS annuity based on his entitlement to, rather than actual receipt
      of, SSA disability benefits. 5 ID at 18; see 5 U.S.C. § 8452(a)(2)(A) (referencing
      a requirement for a reduction in an annuitant’s FERS disability annuity benefit
      for a month in which the appellant is “entitled both” to a FERS disability
      retirement annuity and SSA disability benefits); 5 C.F.R. § 844.302(b)(2), (c)(2)
      (referencing periods for which an annuitant is “entitled to” SSA disability
      benefits); see also Maxwell v. Office of Personnel Management, 78 M.S.P.R. 350,
      355 (1998) (finding that a delay in an appellant’s receipt of SSA disability

      5
        We have considered the appellant’s argument on review that the administrative
      judge’s finding was contrary to the decision by the U.S. Court of Appeals for the
      Federal Circuit in Stephenson v. Office of Personnel Management, 705 F.3d 1323 (Fed.
      Cir. 2013), and find it unpersuasive. PFR File, Tab 1 at 17-18. In Stephenson, the
      court held OPM could not reduce an appellant’s FERS disability benefits for a period
      during which he was not entitled to SSA disability benefits because he was working.
      705 F.3d at 1328-29. The court’s finding was based on an analysis of whether the
      appellant was entitled to SSA disability benefits under 5 U.S.C. § 423(a)(1), the
      applicable provision of the Social Security Act, not whether the appellant received such
      benefits. Stephenson, 705 F.3d at 1328-29.
                                                                                       9

      benefits did not alter the fact that she was entitled to receive the benefits for
      purposes of calculating a reduction to her FERS annuity), overruled on other
      grounds by Conner v. Office of Personnel Management, 120 M.S.P.R. 670, ¶ 6
      (2014).
¶18        The appellant also contends that the administrative judge failed to consider
      that he paid $6,000.00 of his SSA disability benefits to the attorney who
      represented him in proceedings before the SSA. PFR File, Tab 1 at 13, 20, 24;
      see IAF, Tab 5 at 25. The appellant has cited no authority, and we can identify
      none, for the proposition that he is entitled to a reduction in repaying an
      overpayment based upon his payment of attorney’s fees and costs in pursuing his
      SSA disability benefits award.     See 5 U.S.C. § 8452(a)(2)(A).     As discussed
      above, the reduction in the appellant’s FERS disability retirement benefit is
      governed by his entitlement to SSA disability benefits, regardless of whether
      some portion of those benefits were ultimately paid to his attorney. Therefore,
      the appellant has failed to demonstrate that the administrative judge erred in
      finding that OPM correctly calculated the overpayment without a reduction for
      attorney’s fees. ID at 10-21.
      The administrative judge correctly found that the appellant failed to prove that he
      was entitled to a waiver of the overpayment.
¶19        An appellant has the burden of proving by substantial evidence that he is
      entitled to a waiver of an overpayment. Vojas, 115 M.S.P.R. 502, ¶ 18; 5 C.F.R.
      § 845.307(b). A waiver of an annuity overpayment may be granted when the
      annuitant is without fault and recovery would be against equity and good
      conscience. Zucker v. Office of Personnel Management, 114 M.S.P.R. 288, ¶ 7
      (2010); 5 C.F.R. § 845.301.     Here, it is undisputed that the appellant met his
      obligation to inform OPM of the overpayment and that he was without fault.
      ID at 22-23. However, on review, the appellant raises several challenges to the
      administrative judge’s finding that he failed to demonstrate that recovery would
      be against equity and good conscience. PFR File, Tab 1 at 9-23; ID at 24-37.
                                                                                        10

      For the reasons discussed below, we find that the appellant’s arguments do not
      provide a basis for disturbing the initial decision.

            The administrative judge correctly found that the set-aside rule applies.
¶20        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, 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); Knox v. Office of Personnel
      Management, 107 M.S.P.R. 353, ¶ 8 (2007); IAF, Tab 5 at 70, Policy Guidelines
      on the Disposition of Overpayments under the Civil Service Retirement System
      and Federal Employees’ Retirement System, § I.C.4 (1995) (Policy Guidelines).
¶21        On review, the appellant contests the administrative judge’s finding that the
      set‑aside rule applies. PFR File, Tab 1 at 9-14, 19-21. However, we agree with
      the administrative judge that OPM’s September 19, 2012 letter provided the
      appellant with sufficient notice that he was required to set aside his SSA
      disability benefit payments to repay OPM for any overpayment of his FERS
      disability annuity. ID at 24-29.
¶22        We have considered the appellant’s arguments on review that the
      September 19, 2012 letter was poorly written, unclear, or confusing, and find
      them unpersuasive. PFR File, Tab 1 at 9-14, 19-21. In pertinent part, the letter
      notified the appellant that by law, OPM “is required to deduct all or part of Social
      Security disability benefits from the FERS disability benefit paid to a retiree.”
      IAF, Tab 5 at 15. The letter further stated:
            If you are overpaid FERS disability benefits because of receipt of
            Social Security disability benefits, OPM will send you a notice of the
            amount of the overpayment. You are legally required to repay this
            money to OPM. If SSA sends you a retroactive payment, hold that
            award until you receive a notice of the amount of your overpayment
            from OPM, so that you have sufficient funds to repay your duplicate
            payment.
                                                                                      11

      Id. We find that the letter clearly informed the appellant that he was required to
      set aside his SSA disability benefits award to reimburse OPM for any FERS
      overpayment.
¶23        On review, the appellant reiterates his argument, raised below, that the
      set-aside rule should not apply because his mental capacity was purportedly
      affected by his prescribed opiate when he received the September 2012 letter.
      PFR File, Tab 1 at 11; IAF, Tab 37 at 3-4; HCD (testimony of the appellant).
      The administrative judge found the appellant’s claims that he suffered from
      mental incapacity in 2012 and 2013 were inapposite because the appellant was
      not awarded SSA disability insurance benefits until May 2014 and did not allege
      that he suffered from mental incapacity at that time. ID at 28-29. He further
      found that the appellant’s actions in repeatedly notifying OPM that he had been
      awarded SSA disability benefits, in accordance with the instructions in the
      September 2012 letter, reflected that he was aware, or at least strongly suspected,
      that he had received an overpayment.      ID at 27-29.    We discern no basis to
      disturb these well-reasoned findings.     See Knox, 107 M.S.P.R. 353, ¶¶ 7-9
      (holding that an appellant was without fault in creating an overpayment but was
      not entitled to a waiver because she was aware that she should have set aside the
      overpayment). In sum, we find that the appellant’s arguments on review do not
      provide a basis for disturbing the administrative judge’s conclusion that the
      set-aside rule applies.

            The administrative judge correctly found that the appellant failed to
            establish exceptional circumstances warranting waiver.
¶24        Because the set-aside rule applies, the appellant is not entitled to a waiver
      of the overpayment unless he can establish that exceptional circumstances exist.
      See Boone, 119 M.S.P.R. 53, ¶ 6. Exceptional circumstances may include, but
      are not limited to, cases in which: (1) there has been an exceptionally lengthy
      delay by OPM in adjusting an annuity; (2) OPM failed to respond within a
                                                                                         12

      reasonable length of time to an annuitant’s inquiries regarding an overpayment;
      (3) OPM failed to act expeditiously to adjust an annuity in the face of specific
      notice; or (4) OPM was otherwise grossly negligent in handling the case. King v.
      Office of Personnel Management, 114 M.S.P.R. 181, ¶ 20 (2010).
¶25         On review, the appellant reiterates his argument, raised below, that
      exceptional circumstances exist because OPM failed to adjust his FERS disability
      retirement annuity until 9 months after he notified OPM that he had been awarded
      SSA   disability benefits,   and   OPM     failed   to   respond   to   his   repeated
      communications regarding his SSA disability benefits award during that same
      time period. PFR File, Tab 1 at 12, 14; IAF, Tab 18 at 7. The administrative
      judge found that, although OPM’s delays may have been vexing to the appellant,
      they did not meet the threshold for a finding of exceptional circumstances, where,
      as here, OPM issued the overpayment notice to the appellant 25 days after
      verifying his SSA disability benefits award with the SSA. ID at 31-32.            We
      discern no error in this finding.          See James v. Office of Personnel
      Management, 72 M.S.P.R. 211, 218-19 (1996) (finding that a delay of
      approximately 15 months between the date that an appellant notified OPM that he
      had been awarded SSA disability benefits and the date that OPM issued an
      overpayment notice did not constitute an exceptionally lengthy delay warranting
      waiver); Harris v. Office of Personnel Management, 43 M.S.P.R. 387, 390-91
      (finding that a 2‑year delay between the date that an appellant became eligible
      for SSA disability benefits and the date that OPM adjusted his Civil Service
      Retirement   System   annuity did    not    establish    exceptional    circumstances
      warranting waiver), aff’d, 907 F.2d 158 (Fed. Cir. 1990); Newcomb v. Office of
      Personnel Management, 42 M.S.P.R. 552, 558‑60 (1989) (finding that a delay of
      3 years and 10 months between an appellant’s request for a waiver and OPM’s
      final decision did not constitute exceptional circumstances rendering recovery
      unconscionable); see also IAF, Tab 5 at 70, Policy Guidelines, § I.C.4 (stating
                                                                                       13

      that exceptional circumstances would involve extremely egregious errors or
      delays by OPM, such as failure to issue a written decision within 4 years of a
      request for waiver).
¶26        The appellant also repeats his arguments that he is entitled to a waiver
      under a theory of detrimental reliance because: (1) the overpayment purportedly
      caused his tax burden to increase; and (2) he elected to retain an attorney to
      appeal the denial of his SSA benefits because he allegedly did not understand that
      his FERS disability benefits would be reduced. PFR File, Tab 1 at 18-20; IAF,
      Tab 2 at 5, Tab 18 at 9; HCD (testimony of the appellant). The administrative
      judge correctly found that the appellant failed to establish a claim of detrimental
      reliance because, although OPM’s actions may have ultimately put the appellant
      in a worse position, OPM did not mislead the appellant or induce him to change
      his position, where, as here, he was on notice of the potential overpayment and
      the set‑aside requirement.     ID at 35-37; see Slater v. Office of Personnel
      Management, 42 M.S.P.R. 510, 520-21 (1989) (finding that an increase in an
      appellant’s tax burden because of an overpayment did not warrant waiver of the
      overpayment on the basis of detrimental reliance where there was no evidence
      that OPM misled the appellant, or induced him to change his position); see also
      Freidman v. Office of Personnel Management, 153 F. App’x 719, 721 (Fed. Cir.
      2005) (finding that an appellant failed to establish that his payment of attorneys’
      fees incurred in pursuing SSA disability benefits constituted exceptional
      circumstances warranting waiver). 6
¶27        We also have considered the appellant’s other arguments on review,
      including, but not limited to, his allegations of error, negligence, and delays by
      OPM, PFR File, Tab 1 at 9-24, and find that none of them provide a basis for


      6
       Although Freidman is an unpublished decision, the Board may rely on unpublished
      Federal Circuit decisions where, as here, it finds the court’s reasoning persuasive.
      Mauldin v. U.S. Postal Service, 115 M.S.P.R. 513, ¶ 12 (2011).
                                                                                      14

      disturbing the administrative judge’s conclusion that he failed to establish
      exceptional circumstances warranting waiver.
      The administrative judge correctly found that the appellant failed to prove that
      OPM violated his due process rights.
¶28        On review, the appellant challenges the administrative judge’s finding that
      he failed to prove his affirmative defense of a violation of due process. PFR File,
      Tab 1 at 21-22. He reiterates his assertions, raised below, that OPM violated his
      due process rights when:       (1) OPM erroneously made collections on the
      overpayment while his reconsideration request and Board appeal were pending, in
      violation of 5 C.F.R. §§ 845.204(a)(9) and 845.205(d)(1); (2) OPM issued an
      overpayment notice that purportedly failed to provide all of the information
      required by 5 C.F.R. § 845.204(a); and (3) OPM failed to respond to his requests
      for documents and information that he submitted prior to the reconsideration
      decision. PFR File, Tab 1 at 16-17, 21-22; IAF, Tab 8 at 1, Tab 18 at 2-5,
      Tab 21 at 2, Tab 26 at 1-2, Tab 27 at 5, Tab 29 at 1, Tab 34 at 4-5.
¶29        The administrative judge considered these allegations and found that the
      appellant failed to establish that OPM violated his due process rights.         ID
      at 42-43 & n.21.    He found that, after the appellant raised the issue of the
      premature collection of the overpayment, OPM remedied the error, relying on
      evidence that OPM either refunded or was in the process of refunding the
      amounts that it improperly collected. ID at 43 & n.11; IAF, Tab 5 at 5, 29-35,
      Tab 8 at 62-64, Tab 24 at 3, Tab 30 at 4-5. He further found that, because due
      process is a flexible concept and OPM’s collection of the overpayment did not
      constitute a permanent deprivation, the appellant failed to establish that the
      premature collection violated his due process rights.     ID at 4; see Gajdos v.
      Department of the Army, 121 M.S.P.R. 361, ¶ 18 (2014) (finding that due process
      is “flexible and calls for such procedural protections as the particular situation
      demands” (quoting Mathews v. Eldridge, 424 U.S. 319, 334 (1976)).
                                                                                          15

¶30            Regarding the appellant’s remaining contentions, the administrative judge
      found that, because OPM generally stays overpayment collections while Board
      appeals are pending, the risk of an erroneous deprivation of property rights was
      low, given the availability of independent review by the Board prior to OPM’s
      final action. ID at 43; see Matthews, 424 U.S. at 335 (finding that due process
      requires consideration of the risk of an erroneous deprivation of a property
      interest through the procedures used); see also Gajdos, 121 M.S.P.R. 361, ¶ 25
      (considering the availability of post‑deprivation relief before the Board in
      finding that an agency did not violate an appellant’s due process rights in
      effectuating his furlough).        He further found that the appellant ultimately
      received the process required by OPM’s regulations, either directly from OPM or
      during the course of his Board appeal. ID at 43. For these reasons, he concluded
      that the appellant failed to establish that OPM violated his due process rights. ID
      at 43.
¶31            On review, the appellant has not identified any factual or legal errors in the
      administrative judge’s analysis, but instead merely reiterates the actions that he
      contends constitute due process violations and disputes the administrative judge’s
      characterization of tangential matters. PFR File, Tab 1 at 16-17, 21-22. As
      such, the appellant’s contentions on review constitute mere disagreement with the
      administrative judge’s well‑reasoned finding that the appellant failed to prove
      that OPM violated his due process rights and do not provide a basis for disturbing
      the initial decision.     Crosby v. U.S. Postal Service, 74 M.S.P.R. 98, 105-06
      (1997) (finding no reason to disturb the administrative judge’s findings when she
      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).
                                                                                        16

      The administrative judge correctly found that the appellant failed to prove his
      affirmative defenses of harmful procedural error and that OPM’s decision was not
      in accordance with the law.
¶32        Below, the appellant relied on many of the same actions that he alleged
      constituted due process violations (OPM’s premature collection of the
      overpayment, purportedly deficient overpayment notice, and failure to respond to
      his request for documents and information) as the basis for his affirmative
      defenses of harmful procedural error and that OPM’s decision was not in
      accordance with the law.     IAF, Tab 2 at 6-7, Tab 8 at 1-4, Tab 19 at 7-10,
      Tab 27 at 5.
¶33        The administrative judge found that the appellant failed to prove harmful
      error because he failed to demonstrate that any of the alleged errors were likely to
      have caused OPM to reach a different conclusion.        ID at 40-41; see Forte v.
      Department of the Navy, 123 M.S.P.R. 124, ¶ 9 (2016) (finding that, to show
      harmful error, an appellant must prove that any procedural error was likely to
      have caused the agency to reach a conclusion different from the one it would
      have reached in the absence or cure of the error); 5 C.F.R. § 1201.4(r) (defining
      harmful error). He found that the appellant failed to prove his not‑in‑accordance
      ‑with‑the‑law affirmative defense because the appellant failed to establish that
      there was no legal authority for OPM’s decision. ID at 40-41; see Stephen v.
      Department of the Air Force, 47 M.S.P.R. 672, 683-84 (1991) (in evaluating a
      not-in-accordance-with-the-law affirmative defense, the Board must determine
      whether the decision itself, in its entirety, was not in accordance with law) (citing
      Handy v. U.S. Postal Service, 754 F.2d 335, 337-38 (Fed. Cir. 1985)).
¶34        To the extent that the appellant intends to challenge these findings on
      review, PFR File, Tab 1 at 16-17, 21-22, we find that his contentions fail to
      provide a basis for disturbing the administrative judge’s well‑reasoned
      conclusions. See Crosby, 74 M.S.P.R. 98, 105–06; Broughton, 33 M.S.P.R. at
      359 (1987).
                                                                                         17

      The administrative judge did not abuse his discretion in his procedural rulings.
¶35        On review, the appellant argues that the administrative judge erred in
      accepting the agency’s closing statement despite a service error, and in denying
      the appellant’s requests to compel discovery and present an expert witness.
      PFR File, Tab 1 at 2, 4, 10, 23; IAF, Tab 32 at 2.
¶36        Administrative judges have broad discretion to control proceedings,
      including ruling on discovery matters and excluding witnesses and evidence that
      are not relevant or material to the issues of the case. See Thomas v. U.S. Postal
      Service, 116 M.S.P.R. 453, ¶ 4 (2011) (finding that an administrative judge has
      broad discretion to exclude evidence and witnesses which have not been shown to
      be    relevant    or    material);   Wagner      v.    Environmental      Protection
      Agency, 54 M.S.P.R. 447, 452 (1992) (finding that the Board will not reverse an
      administrative judge’s rulings on discovery matters absent an abuse of
      discretion), aff’d, 996 F.2d 1236 (Fed. Cir. 1993) (Table).       For the following
      reasons, we find that the appellant failed to establish that the administrative judge
      abused his discretion here.
¶37        Following the hearing, the administrative judge issued an order requiring
      that any written closing statements be received by the Board and the opposing
      party by October 29, 2015, and that rebuttals be received by November 5. IAF,
      Tab 32 at 2. The agency electronically filed its closing statement on October 27,
      2015, but did not ensure the appellant’s timely receipt. IAF, Tab 33 at 4, 11, Tab
      35 at 1, Tab 37 at 102.       The appellant responded to the agency’s closing
      statement on November 5, IAF, Tab 37, and subsequently, both parties continued
      to file additional pleadings, IAF, Tabs 38-39.
¶38        The administrative judge denied the appellant’s request that he decline to
      consider the agency’s closing statement, finding that, because both parties had
      failed to comply with the Board’s directives, he would accept all of their
                                                                                            18

      submissions into the record and consider them. 7 ID at 7 n.4. Absent an abuse of
      discretion, the Board will not reverse an administrative judge’s determination
      regarding sanctions. Leseman v. Department of the Army, 122 M.S.P.R. 139, ¶ 6
      (2015); Davis v. Department of Commerce, 120 M.S.P.R. 34, ¶ 18 (2013). We
      find that the appellant failed to establish that the administrative judge abused his
      discretion in declining to sanction the agency here. See Herring v. Department of
      Veterans Affairs, 72 M.S.P.R. 96, 99 (1996) (observing that the practice at the
      Board’s headquarters is to serve a copy of a pleading on the other parties when a
      party fails to comply with the Board’s regulations requiring such service); Panter
      v. Department of the Air Force, 22 M.S.P.R. 281, 282 (1984) (finding that an
      adjudicatory error that is not prejudicial to a party’s substantive rights provides
      no basis for reversal of an initial decision).
¶39         The appellant also argues that the administrative judge improperly denied
      his request to call an expert witness to testify regarding his allegation that a
      July 31, 2012 letter in the agency file was forged or fraudulent. PFR File, Tab 1
      at 10, 23; see IAF, Tab 5 at 12-13, Tab 27 at 17-18. The administrative judge
      found that, because the appellant claimed that he had never received the letter,
      any disputes regarding its authenticity were not relevant to the issues before the
      Board. IAF, Tab 27 at 17. He declined to extrapolate from any alleged forgery
      or fraud that the remainder of OPM’s proof of the overpayment was unreliable.
      IAF, Tab 27 at 17-18; ID at 15.
¶40         We discern no abuse of discretion in the administrative judge’s decision to
      deny the appellant’s request to call the expert witness to testify regarding the July


      7
        In addition to the issues described above, the appellant appears to have sent his
      written closing statement to the Board and the agency by facsimile on October 29,
      2015, but the agency contended that it did not receive the fax. IAF, Tab 34, Tab 36
      at 4, Tab 39 at 2. Also, when filing his closing statement, the appellant did not include
      a certificate of service, as required by the Board’s regulations. IAF, Tab 34; see
      5 C.F.R. § 1201.26(b)(2) (providing that a certificate of service stating how and when
      service was made must accompany each pleading served by a party).
                                                                                        19

      31, 2012 letter.    The administrative judge did not rely on the letter in his
      findings. ID at 8-48. We further agree with the administrative judge that the
      expert’s testimony regarding the letter would be insufficient to impugn the
      reliability of the remainder of OPM’s evidence. IAF, Tab 27 at 17-18; ID at 15;
      see Parsons v. United States, 670 F.2d 164, 166-67 (Ct. Cl. 1982) (observing that
      there is a presumption that public officials perform their duties in good faith);
      Thompson v. Office of Personnel Management, 81 M.S.P.R. 677, ¶¶ 6-8 (1999)
      (finding that an administrative judge’s failure to adjudicate an appellant’s claim
      that OPM discriminated against him in the calculation of his annuity was
      harmless error because the employee who calculated the annuity correctly did so
      pursuant to the applicable statute, a nondiscretionary function). Accordingly, the
      appellant has failed to establish that the administrative judge disallowed relevant
      testimony which could have affected the outcome of his appeal.           Sanders v.
      Social Security Administration, 114 M.S.P.R. 487, ¶ 10 (2010) (finding that, to
      obtain reversal of an initial decision on the ground that the administrative judge
      abused his discretion in excluding evidence, the petitioning party must show on
      review that a relevant witness or evidence, which could have affected the
      outcome, was disallowed).
¶41        The appellant also contends that the administrative judge improperly denied
      his motion to compel the agency to respond to discovery requests for copies of
      any complaints or disciplinary actions against K.J., the OPM employee who
      prepared the July 15, 2015 reconsideration decision, and K.J.’s performance
      evaluations. 8 PFR File, Tab 1 at 4; IAF, Tab 19 at 1-2, Tab 25 at 1-3, Tab 27
      at 8-10. We find that the administrative judge did not abuse his discretion in
      denying the appellant’s motion to compel responses to the discovery requests at

      8
        The administrative judge’s order denying the motion to compel also addressed other
      discovery requests, but the appellant has not raised any specific challenge to the
      administrative judge’s findings regarding those requests on review, and therefore, we
      do not address them further. PFR File, Tab 1; IAF, Tab 27 at 8-14.
                                                                                              20

      issue here. The appellant claimed below that the requested material would show
      that OPM was careless in reaching its reconsideration decision. 9 IAF, Tab 27
      at 9. The Board reviews OPM’s reconsideration decision on its merits, rather
      than on the background of the individual who prepared the decision, and,
      therefore, we agree with the administrative judge that the appellant failed to
      demonstrate that the information sought was relevant to the issues in his appeal. 10
      IAF, Tab 27 at 9-10; see 5 C.F.R. § 1201.72(a) (providing that discovery is the
      process, apart from the hearing, by which a party may obtain relevant
      information); see also Thompson, 81 M.S.P.R. 677, ¶¶ 6-8.
      The appellant has not shown that the administrative judge was biased.
¶42         The appellant further asserts that the administrative judge was biased and
      favored the agency in his rulings. PFR File, Tab 1 at 2, 7, 10, 21, 23. In making
      a claim of bias or prejudice against an administrative judge, a party must
      overcome     the   presumption     of   honesty    and    integrity   that   accompanies
      administrative        adjudicators.             Oliver       v.       Department        of
      Transportation, 1 M.S.P.R. 382, 386 (1980).           We find nothing in the record
      indicating that the administrative judge demonstrated any form of bias, and the
      instances of alleged bias all pertain to the administrative judge’s rulings during
      the proceedings. PFR File, Tab 1 at 2, 7, 10, 21, 23. Generally, such allegations

      9
        For the first time on review, the appellant claims that the documents that he requested
      in discovery were relevant because they may have shown that K.J. was the person who
      created the allegedly fraudulent July 31, 2012 letter. PFR File, Tab 1 at 4. The Board
      generally will not consider an argument raised for the first time in a petition for review
      absent a showing that it is based on new and material evidence not previously available
      despite the party’s due diligence. Banks v. Department of the Air Force, 4 M.S.P.R.
      268, 271 (1980). The appellant has not made such a showing here. Moreover, even if
      we were to consider the appellant’s new argument, as discussed previously, the
      appellant also has failed to demonstrate that the authenticity of the letter is relevant to
      the dispositive issues in his appeal.
      10
         On review, the appellant also appears to contend that he was denied the opportunity
      to cross‑examine K.J. at hearing. PFR File, Tab 1 at 3. However, the appellant did not
      request to call K.J. as a witness at the hearing, even though he was aware that the
      agency did not intend to call any witnesses. IAF, Tab 15 at 1, Tab 27 at 16-18.
                                                                                     21

      may not form the basis of a finding of bias, and, here, we find they do not
      overcome the presumption of fairness and impartiality afforded to the
      administrative judge. See Vaughn v. Department of the Treasury, 119 M.S.P.R.
      605, ¶ 18 (2013) (finding that the Board will not infer bias based on an
      administrative judge’s case-related rulings).
¶43        Finally, we have considered the appellant’s numerous other arguments and
      allegations of error on review and conclude that none of them form a basis for
      disturbing the initial decision. For this reason, and the reasons discussed above,
      we deny the appellant’s petition for review and affirm the initial decision.

                      NOTICE TO THE APPELLANT REGARDING
                         YOUR FURTHER REVIEW RIGHTS
      You have the right to request further review of this final decision.
      Discrimination Claims: Administrative Review
            You may request review of this final decision on your discrimination
      claims by the Equal Employment Opportunity Commission (EEOC). See title 5
      of the United States Code, section 7702(b)(1) (5 U.S.C. § 7702(b)(1)). If you
      submit your request by regular U.S. mail, the address of the EEOC is:
                                Office of Federal Operations
                         Equal Employment Opportunity Commission
                                      P.O. Box 77960
                                 Washington, D.C. 20013

      If you submit your request via commercial delivery or by a method requiring a
      signature, it must be addressed to:
                                Office of Federal Operations
                         Equal Employment Opportunity Commission
                                     131 M Street, NE
                                       Suite 5SW12G
                                 Washington, D.C. 20507

      You should send your request to EEOC no later than 30 calendar days after your
      receipt of this order. If you have a representative in this case, and your
      representative receives this order before you do, then you must file with EEOC no
                                                                                22

later than 30 calendar days after receipt by your representative. If you choose to
file, be very careful to file on time.
Discrimination and Other Claims: Judicial Action
        If you do not request EEOC to review this final decision on your
discrimination claims, you may file a civil action against the agency on both your
discrimination claims and your other claims in an appropriate U.S. district court.
See 5 U.S.C. § 7703(b)(2). You must file your civil action with the district court
no later than 30 calendar days after your receipt of this order. If you have a
representative in this case, and your representative receives this order before you
do, then you must file with the district court no later than 30 calendar days after
receipt by your representative. If you choose to file, be very careful to file on
time.    If the action involves a claim of discrimination based on race, color,
religion, sex, national origin, or a disabling condition, you may be entitled to
representation by a court‑appointed lawyer and to waiver of any requirement of
prepayment of fees, costs, or other security.        See 42 U.S.C. § 2000e-5(f)
and 29 U.S.C. § 794a.




FOR THE BOARD:                           ______________________________
                                         Jennifer Everling
                                         Acting Clerk of the Board
Washington, D.C.
