                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     ROBERT ALAN HELFMAN,                            DOCKET NUMBER
                  Appellant,                         SF-831M-14-0084-I-1

                  v.

     OFFICE OF PERSONNEL                             DATE: August 18, 2014
       MANAGEMENT,
                   Agency.



                THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Robert Alan Helfman, Rancho Santa Margarita, California, pro se.

           Karla W. Yeakle, Washington, D.C., for the agency.


                                           BEFORE

                              Susan Tsui Grundmann, Chairman
                              Anne M. Wagner, Vice Chairman
                                 Mark A. Robbins, Member


                                       FINAL ORDER

¶1         The appellant has filed a petition for review of the initial decision, which
     affirmed the Office of Personnel Management’s (OPM’s) reconsideration
     decision. Generally, we grant petitions such as this one only when: the initial
     decision contains erroneous findings of material fact; the initial decision is based

     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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).
     on an erroneous interpretation of statute or regulation or the erroneous application
     of the law to the facts of the case; the 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, and based on the
     following points and authorities, 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).
¶2        OPM found that the appellant was overpaid disability retirement benefits in
     the amount of $3,817.73. Initial Appeal File (IAF), Tab 6 at 13. OPM explained
     that the overpayment occurred in large part because the appellant’s gross interim
     payments were made without the applicable health and life insurance premium
     deductions.    Id.   OPM denied the appellant’s request for waiver of the
     overpayment and collection of the overpayment amount in monthly installments
     of $106.00. Id.
¶3        On appeal, the administrative judge found that OPM met its burden to prove
     the existence and amount of the overpayment. IAF, Tab 10, Initial Decision (ID)
     at 2-3.   He also found that the appellant failed to meet his burden to show
     entitlement to waiver. ID at 3-6. He found that the appellant failed to show that
     recovery would cause him financial hardship because he had liquid assets in
     excess of $80,000.    ID at 3-4.   The administrative judge also found that the
     appellant failed to show that, based on the calculation of his income including the
     overpayment amount, his college age daughter was denied financial aid. ID at 4.
     The administrative judge found that the appellant failed to submit any evidence in
     support of the assertion that his daughter was denied a grant to pay for her college
     tuition because the overpayment amount caused the appellant’s income to exceed
     the income that would have allowed his daughter to receive the grant. ID at 4.
     Additionally, the administrative judge found that any increase in the appellant’s
     tax burden as a result of the overpayment was not a basis for waiver. ID at 5.
     Finally, the administrative judge found that the appellant failed to show that
     recovery of the overpayment would be unconscionable because OPM’s delay in
     responding to the appellant’s disability retirement application, and certain delays
     in correspondence with him in correcting the annuity amount, were not within the
     parameters found to be unconscionable by the Board. ID at 5-6.
¶4         In his petition for review, the appellant asserts that he was harmed in the
     presentation of his case because OPM’s representative did not participate in the
     prehearing conference, or at the hearing, and he could not complete discovery.
     Petition for Review File, Tab 1 at 3-6. Discovery is the process by which a party
     may obtain relevant information from another party to an appeal. 5 C.F.R.
     § 1201.72(a). Each party to an appeal is responsible for discovery. See Campbell
     v. U.S. Postal Service, 51 M.S.P.R. 122, 125 (1991). The Board generally does
     not involve itself in the discovery process unless a party files a motion to
     compel. 2 See King v. Department of the Navy, 98 M.S.P.R. 547, ¶ 10 (2005),
     aff’d, 167 F. App’x 191 (Fed. Cir. 2006).          To the extent that the appellant
     believed that he could have engaged in discovery by making a request for
     information from OPM’s representative during the processing of the appeal, at the
     prehearing conference, or at the hearing, he could have timely raised this issue to
     the administrative judge even in the absence of OPM’s representative.               The

     2
       Parties must file written motions to compel within 10 days of the date of service of
     objections or the expiration of the time limit for response, where no response has been
     received. 5 C.F.R. § 1201.73(d)(4). As required by the Board’s regulations, a motion
     to compel must be accompanied by the following: (i) a copy of the original request and
     a statement showing that the information sought is relevant and material; and (ii) a copy
     of the opposing party’s response to the request or, where appropriate, an affidavit or
     sworn statement under 28 U.S.C. § 1746 indicating that no response has been received.
     5 C.F.R. § 1201.71.
     appellant failed to show that he informed the administrative judge that he
     intended to discover information during the processing of the appeal, at the
     prehearing conference, or at the hearing. If the appellant had so informed the
     administrative judge, the administrative judge could have reminded the appellant
     of the Board’s discovery procedures, answered any questions about discovery that
     the appellant may have had, and then removed himself from the discovery
     process.   See Christofili v. Department of the Army, 81 M.S.P.R. 384, ¶ 15
     (1999).
¶5        The appellant also contends that, because of the absence of OPM’s
     representative from the prehearing conference and at the hearing, he was unable
     to present his case that, based on the calculation of his income including the
     overpayment amount, his college-age daughter was denied financial aid.          The
     appellant, however, could have submitted such evidence into the record after the
     prehearing conference, at the hearing, or during the 3-month period between his
     initial submission and the issuance of the initial decision.         See Burke v.
     Department of Veterans Affairs, 121 M.S.P.R. 299, ¶ 18 (2014). The appellant
     thus has failed to show that he was harmed by the absence of OPM’s
     representative.
¶6        In his petition for review, the appellant alleges that the administrative judge
     was biased because he urged the appellant to accept the agency’s settlement offer.
     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). The party must show that any such bias constitutes extrajudicial
     conduct rather than conduct arising in the administrative proceedings before him.
     Ali v. Department of the Army, 50 M.S.P.R. 563, 568 (1991).           In settlement
     negotiations, administrative judges are permitted to inform the parties of the
     relative strengths and weaknesses of their cases. Forston v. Department of the
     Navy, 60 M.S.P.R. 154, 160 (1993).      Such statements do not indicate bias or
     coercion. Id. Further, the appellant made no showing that the administrative
     judge had prejudged his case.      The administrative judge’s comment that the
     appellant should accept the agency’s settlement offer was made in his role as an
     adjudicator; it was not extrajudicial conduct but his appraisal of the appellant’s
     likelihood of success if the appellant elected to pursue adjudication of his appeal.
     See Cranfield v. Tennessee Valley Authority, 44 M.S.P.R. 384, 388 (1990) (the
     administrative judge’s comments to the parties reflecting the weaknesses of their
     cases did not reflect any prejudgment or preconceived notions as to the appeal).
¶7        Next, the appellant repeats his contention that he is entitled to a waiver of
     the overpayment because his receipt of the overpayment increased his taxes. In
     Slater v. Office of Personnel Management, 42 M.S.P.R. 510, 519-21 (1989), the
     Board found that an increase in an appellant’s tax burden because of an
     overpayment does not warrant waiver of the overpayment on the basis of
     detrimental reliance or unconscionability. A similar argument was raised in Day
     v. Office of Personnel Management, 873 F.2d 291, 292 (Fed. Cir. 1989). In that
     case, the plaintiff alleged that recovery of his annuity overpayment was improper
     partly because the recovery resulted in an unexpected income tax liability. The
     court found that the recovery was not unconscionable or otherwise improper and
     that waiver of the recovery therefore was not warranted. Id. at 292-94. Here, the
     appellant has not shown that the recovery of the amount of the annuity
     overpayment would be unconscionable. We therefore find that the appellant has
     not shown that he is entitled to waiver based on his tax liability for the
     overpayment amount. 3
¶8        The appellant also repeats his contention that OPM’s 1-year delay in
     adjusting his annuity was unconscionable and that the overpayment should be


     3
       The appellant did not challenge the existence or the amount of the overpayment
     below, ID at 3, or on petition for review. There is no evidence that the appellant is
     unable to collect the tax overpayment resulting from his annuity overpayment. See
     Vojas v. Office of Personnel Management, 115 M.S.P.R. 502 (2011).
waived on that basis.    As the administrative judge correctly found, however,
OPM’s delay in the appellant’s case was not egregious. See, e.g., Kellet v. Office
of Personnel Management, 62 M.S.P.R. 1, 4-5 (1993) (delay of 10 years in
adjusting an annuity found unconscionable); Cassity v. Office of Personnel
Management, 55 M.S.P.R. 25, 29 (1992) (55-month delay in adjusting annuity to
honor election of survivor annuity benefits was unconscionable in the absence of
an explanation for the delay), overruled in part on other grounds, Steele v. Office
of Personnel Management, 57 M.S.P.R. 458, 461–63 (1993).

                 NOTICE TO THE APPELLANT REGARDING
                    YOUR FURTHER REVIEW RIGHTS
     You have the right to request review of this final decision by the United
States 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 United States 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 the United
States   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 your court
appeal, you may visit our website at http://www.mspb.gov/probono for a list of
attorneys who have expressed interest in providing pro bono representation for
Merit Systems Protection Board appellants before the court. 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.
