                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     SCOTT M. BURTON,                                DOCKET NUMBER
                  Appellant,                         CH-0841-14-0691-I-1

                  v.

     OFFICE OF PERSONNEL                             DATE: July 14, 2015
       MANAGEMENT,
                   Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Scott M. Burton, Westerville, Ohio, 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
     dismissed his petition for reinstatement of his Federal Employees’ Group Life
     Insurance (FEGLI) policy for lack of jurisdiction and affirmed the Office of
     Personnel Management’s (OPM’s) decision regarding his disability retirement


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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     annuity. 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 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 issued a reconsideration decision denying the appellant’s application
     for reinstatement of his Federal Employees’ Retirement System (FERS) disability
     retirement annuity for 2014. Initial Appeal File (IAF), Tab 15. 2 OPM stated that,
     for the calendar year 2013, the appellant reported income that exceeded 80% of
     the 2013 base pay of the position from which he retired. Id. OPM explained that,
     under these circumstances, the appellant was deemed restored to earning capacity
     and became disqualified for a disability annuity. 3 Id. OPM also found that the
     appellant was not eligible to be enrolled in the FEGLI program. Id.

     2
      The appellant filed his appeal prior to OPM issuing a reconsideration decision on his
     application. IAF, Tab 1. While the appeal was pending with the Board’s regional
     office, OPM issued the reconsideration decision. IAF, Tab 15.
     3
       In OPM’s final submission into the record below, it stated that, based on the
     appellant’s earnings for calendar year 2011, it determined that he was restored to
     earning capacity. IAF, Tab 28. OPM also stated that because the appellant’s annuity
     was not terminated until August 1, 2013, he had received an annuity overpayment. Id.
     OPM indicated that the appellant had requested waiver of the overpayment on
     September 11, 2013, and on February 20, 2014, OPM advised him that based on his
                                                                                         3

¶3         The administrative judge found that the appellant’s reported income for
     2013 exceeded the amount that he may earn and continue to receive his disability
     annuity, disqualifying him from annuity payments for 2014. 4 IAF, Tab 30, Initial
     Decision (ID) at 4. Thus, she affirmed the reconsideration decision. She noted
     that when the appellant’s disability annuity ceased, OPM had no funds from
     which to pay the appellant’s FEGLI premiums. ID at 2. She found that, with
     exceptions not applicable in this case, jurisdiction over FEGLI issues resides in
     the federal district courts and the Court of Claims, not the Board. Id. Thus, she
     found that the Board had no jurisdiction to review the appellant’s claims
     regarding his loss of eligibility for the FEGLI program. Id.
¶4         In his petition for review, the appellant asserts, as he did below, that his
     disability annuity should be reinstated for 2014. Petition for Review (PFR) File,
     Tab 1. He also contends that he was forced to increase his earnings beginning in
     2011 because OPM erroneously failed to increase his annuity due to his loss of
     social security disability benefits. Id.
¶5         Under 5 U.S.C. § 8455(a)(2), the annuity of a FERS disability annuitant
     who is restored to earning capacity before becoming 60 years of age terminates
     upon reemployment by the federal government or 180 days after the end of the
     calendar year in which earning capacity is restored, whichever is earlier.
     See 5 C.F.R. § 844.402(a).       Earning capacity is deemed restored if, in any
     calendar year, the annuitant’s income from wages and/or self-employment equals
     at least 80% of the current rate of basic pay of the position he occupied
     immediately before retirement.      5 U.S.C. § 8455(a)(2); 5 C.F.R. § 844.402(b).
     OPM will reinstate a disability annuity terminated because earning capacity was


     reconsideration request, it would take no further collection action on the overpayment
     issue. Id.
     4
       The administrative judge stated that the appellant was disqualified for disability
     payments beginning January 1, 2015. ID at 4. She apparently meant that the appellant
     was disqualified in 2014.
                                                                                      4

     restored when the disability annuitant again loses earning capacity, as determined
     by OPM. 5 C.F.R. § 844.404(c)(1)(iii). The reinstated annuity is payable from
     January 1 of the year following the calendar year in which earning capacity was
     lost.   5 C.F.R. § 844.404(c)(2).   An appellant bears the burden of proving his
     entitlement to a disability retirement annuity.   Hudson v. Office of Personnel
     Management, 87 M.S.P.R. 385, ¶ 5 (2000); 5 C.F.R. § 1201.56(a)(2).           OPM,
     however, is obliged to come forward with evidence and an explanation
     demonstrating the basis on which it reached its determination. Hollifield v. Office
     of Personnel Management, 83 M.S.P.R. 563, ¶ 15 (1999).
¶6           The appellant does not dispute OPM’s evidence showing that on
     December 31, 2013, he reported income of $47,910, and that this amount
     exceeded 80% of the base salary wage of his former position with the U.S. Postal
     Service in 2013, i.e., exceeded 80% of $55,523. See IAF, Tab 15. Rather, the
     appellant contends that he had to supplement his income because of OPM’s delay
     in increasing his disability annuity by $629 per month due to his loss of a social
     security disability annuity. PFR File, Tab 1.
¶7           While a FERS disability annuitant is also receiving a social security
     disability annuity, his FERS disability annuity must be reduced by the social
     security disability amount to which he is entitled, as determined by the Social
     Security Administration, because such amount represents an assumed social
     security disability amount used in computing the FERS annuity.            5 U.S.C.
     § 8452(a)(2); Maxwell v. Office of Personnel Management, 78 M.S.P.R. 350, 355
     (1998), overruled on other grounds by Conner v. Office of Personnel
     Management, 120 M.S.P.R. 670 (2014), aff’d, No. 2014-3129 , 2015 WL 1061870
     (Fed. Cir. Mar. 12, 2015). However, when a FERS disability retirement annuitant
     loses his entitlement to social security disability benefits because he has had
     gainful employment, OPM must recalculate his FERS disability retirement
     annuity to account for the cessation of his monthly social security disability
     benefits. Stephenson v. Office of Personnel Management, 705 F.3d 1323, 1328
                                                                                               5

     (Fed. Cir. 2013).      Here, the appellant lost his entitlement to social security
     disability benefits in 2010, but OPM did not recalculate his FERS annuity to
     account for the cessation of social security benefits until 2013. IAF, Tab 29. The
     appellant states that it was during the years that OPM delayed recalculating his
     FERS disability annuity that he was forced to earn more than 80% of the base pay
     of his former position with the Postal Service in order to meet his living
     expenses. Id. The appellant believes that because OPM’s delay in recalculating
     his FERS disability annuity 5 was the reason that he had to earn more than 80% of
     the base pay of his former position, it was error for OPM to deny his request that
     his disability annuity be reinstated. PFR File, Tab 1.
¶8         It is well settled, however, that the government cannot be estopped from
     denying benefits not otherwise permitted by law even if the claimant was denied
     monetary benefits because of his reliance on the mistakes of a government
     official. Office of Personnel Management v. Richmond, 496 U.S. 414, 416, 434
     (1990). To the extent that OPM’s delay in recalculating the appellant’s annuity
     can be deemed a mistake, nonetheless, it does not provide a basis to find that
     OPM improperly denied the appellant’s application for reinstatement of his
     annuity for the year following the year that he earned 80% of the base pay of his
     former position. By law, the appellant’s annuity cannot be reinstated until the




     5
       When the appellant first sought recalculation of his annuity upward to terminate the
     offset for his receipt of social security disability benefits, it was OPM’s position that it
     did not have do such a recalculation, and that annuitants would have to bear the loss of
     income. See Stephenson, 705 F.3d 1323, 1324-25. During the interval that OPM
     delayed recalculating the appellant’s annuity, the issue of whether OPM must do such a
     recalculation was being litigated before the Board and the U.S. Court of Appeals for the
     Federal Circuit. Id. In 2013, the court resolved the issue, finding that OPM must
     recalculate FERS disability retirement annuities upward when the annuitant is not
     entitled to social security disability benefits. Id. at 1328. After the court issued its
     decision in Stephenson, OPM recalculated the appellant’s disability annuity upward to
     terminate the offset for his receipt of social security benefits, and it authorized a net
     payment of $10,623.30 to compensate him for his full underpayment. IAF, Tab 8 at 5.
                                                                                             6

     year following the year that he earns less than 80% of the base pay of his former
     position. 6 5 U.S.C. § 8455(b)(2); 5 C.F.R. § 844.404(c).
¶9         Finally, the appellant states on review that he believes that it was unfair for
     OPM not to allow him to continue his participation in the FEGLI program, but he
     does not dispute the administrative judge’s finding that the Board does not have
     jurisdiction over FEGLI issues under the circumstances of this case. PFR File,
     Tab 1. We find no basis to disturb the administrative judge’s finding regarding
     the lapse of payment of his FEGLI premiums.                See Richards v. Office of
     Personnel Management, 97 M.S.P.R. 291, ¶¶ 7-8 (2004) (finding that it was
     unnecessary to remand an appeal to issue a jurisdictional show cause order
     because the evidence showed that the dispute involved a FEGLI issue over which
     the Board is clearly without jurisdiction).

                      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

     6
       In his petition for review, the appellant states that, during 2014, he earned less than
     80% of the base pay of his former position, and that he has requested OPM to reinstate
     his FERS disability annuity on that basis. PFR File, Tab 1. However, the Board cannot
     review this claim until either OPM issues a final decision on the matter or OPM refuses
     or improperly fails to issue a final decision. 5. U.S.C. § 8461(e)(1); Okello v. Office of
     Personnel Management, 120 M.S.P.R. 498 ¶¶ 15-16 (2014).
                                                                                     7

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 an appeal to the
United States 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.
