       NOTE: This disposition is nonprecedential.


  United States Court of Appeals
      for the Federal Circuit
                ______________________

              WILLIAM O. WAGONER,
                    Petitioner,

                           v.

     OFFICE OF PERSONNEL MANAGEMENT,
                  Respondent.
             ______________________

                      2013-3006
                ______________________

   Petition for review of the Merit Systems Protection
Board in No. CH0831110115-B-1.
                ______________________

                 Decided: April 8, 2013
                ______________________

   WILLIAM O. WAGONER, of Pittsboro, Indiana, pro se.

    CAMERON COHICK, Trial Attorney, Commercial Litiga-
tion Branch, Civil Division, United States Department of
Justice, of Washington, DC, for respondent. With him on
the brief were STUART F. DELERY, Principal Deputy Assis-
tant Attorney General, JEANNE E. DAVIDSON, Director and
DEBORAH A. BYNUM, Assistant Director.
                 ______________________
2                                 WILLIAM WAGONER   v. OPM
    Before DYK, MAYER, and O'MALLEY, Circuit Judges.
PER CURIAM.
    William O. Wagoner appeals the final decision of the
Merit Systems Protection Board (“Board”), which affirmed
the Office of Personnel Management’s (“OPM”) finding
that Mr. Wagoner was not eligible for retirement benefits
under the Civil Service Retirement System (“CSRS”), and
ordered him to repay the annuities he improperly re-
ceived. Mr. Wagoner argues on appeal that he was denied
due process because the Board refused to allow him to
present evidence or obtain discovery regarding his remov-
al from the United States Postal Service (“USPS”). Be-
cause we agree with OPM that the grounds for Mr.
Wagoner’s removal from the USPS are not within the
scope of this case, we affirm.
                      BACKGROUND
    Mr. Wagoner worked as a Mail Processing Clerk, Lev-
el 6, for the USPS in Indianapolis, Indiana. In 2007,
Wagoner had been involved in several incidents with law
enforcement personnel leading up to his arrest, including
an incident in which police arrested Mr. Wagoner for
public intoxication and discovered drug paraphernalia on
his person. As a result, the USPS informed Mr. Wagoner
on June 25, 2008 that it was removing him for cause from
his position, effective July 3, 2008. Mr. Wagoner ap-
pealed his removal to the Board.
     While Mr. Wagoner’s appeal was pending, the USPS
first moved to dismiss the appeal as untimely, then moved
to dismiss the appeal without prejudice because the
criminal charges arising from the same conduct for which
he was removed were unresolved. The administrative
judge granted the motion to dismiss without prejudice,
and directed Mr. Wagoner to re-file his appeal within 30
days of the resolution of the criminal charges, or by July
1, 2009, even if the criminal matter was not yet resolved.
 WILLIAM WAGONER   v. OPM                                 3
Mr. Wagoner entered a plea of guilty on March 23, 2009,
and the criminal proceedings ended. Accordingly, Mr.
Wagoner had until April 22, 2009 to re-file his appeal. He
did not. Mr. Wagoner did, however, re-file his appeal
almost two months later, on June 13, 2009.
    Mr. Wagoner explained that he was tardy in re-filing
his claim because his spouse was severely ill and her
treatment was both costly and time-consuming. The
administrative judge rejected Mr. Wagoner’s explanation
for his late-filed appeal, finding that general references to
his spouse’s medical difficulties were not sufficient to
justify the delay. The administrative judge found that
Mr. Wagoner did not explain how his spouse’s condition or
his responsibilities as her care-giver caused the delay in
the re-filing of his appeal. The administrative judge also
noted that the record reflected that Mr. Wagoner appar-
ently waited to re-file his appeal until after he lost a
grievance objecting to his removal. The administrative
judge explained that waiting for completion of the griev-
ance before re-filing his appeal with the Board does not
excuse his untimely filing. Mr. Wagoner did not appeal
the dismissal of his claim, and his removal from the USPS
was effective as of May 21, 2009.
    Meanwhile, on April 9, 2009, the USPS sent Mr. Wag-
oner a Voluntary Early Retirement (“VER”) offer package.
The USPS informed Mr. Wagoner that, if he chose to take
early retirement, his decision would become irrevocable
on June 19, 2009. Mr. Wagoner signed and returned the
acknowledgement form indicating that he accepted VER,
it was approved, and Mr. Wagoner began to receive re-
tirement annuity benefits shortly thereafter.
    Over a year later, in July 2010, OPM informed Mr.
Wagoner that he was actually ineligible for retirement
benefits. While Mr. Wagoner met the service requirement
with 36 years of federal service, he was only 54 years old
on the date of his separation from the USPS, rather than
4                                WILLIAM WAGONER   v. OPM
55, as required for immediate CSRS retirement under 5
U.S.C. § 8336(a). And, though he met the age and service
requirements for Discontinued Service Retirement
(“DSR”) under 5 U.S.C. § 8336(d)(1), because he was
removed from his position for misconduct, he did not
qualify for that either. As such, OPM advised Mr. Wag-
oner that, over the past year, he had received $24,747 in
annuity payments he was not entitled to keep. After a
reduction of $65.70 for paid federal income taxes, OPM
demanded that Mr. Wagoner repay the remaining
$24,681.30 in annuities.
    Mr. Wagoner asked OPM to reconsider its initial deci-
sion. OPM explained that, because Mr. Wagoner was
removed from the USPS for misconduct, he was not
eligible for early retirement. And, because OPM did not
terminate his annuity until May 2010 1, he had received
an annuity overpayment he was now required to repay.
OPM recognized that Mr. Wagoner was not at fault for
the overpayments, but found that, because he failed to
demonstrate that recovery of the overpayment would not
be against equity and good conscience, Mr. Wagoner was
required to repay the full amount.
    Mr. Wagoner appealed OPM’s decision to the Board,
and an administrative judge affirmed on October 3, 2011.
Mr. Wagoner argued that, because OPM (and the USPS)
approved his request for retirement, that OPM was
estopped from revoking the benefits he had already
received. The administrative judge rejected Mr. Wagon-
er’s argument. Mr. Wagoner did not challenge OPM’s
calculation of overpayment, or contend he was entitled to



    1   The OPM decision states that Mr. Wagoner’s an-
nuity was terminated on May 2009, but this appears to be
a typo. Other documents reflect the correct date as May
2010.
 WILLIAM WAGONER   v. OPM                               5
waive the repayment obligation.        Mr. Wagoner then
requested consideration by the full Board.
     On July 10, 2010, the Board affirmed the administra-
tive judge’s decision. The Board first affirmed the admin-
istrative judge’s decision that Mr. Wagoner was not
entitled to retirement benefits because he was removed
from his position for misconduct. The Board also rejected
Mr. Wagoner’s argument that his annuity was irrevoca-
ble. The Board recognized that, while Mr. Wagoner’s own
election was irrevocable, OPM is not similarly bound, and
is only obligated to provide annuities to persons who meet
the statutory requirements for them. The Board last
affirmed the administrative judge’s decision to exclude
evidence related to the grounds for Mr. Wagoner’s remov-
al. The Board found that, because the reasons for Mr.
Wagoner’s removal were not within the scope of his cur-
rent appeal, any witnesses and discovery requests related
to the removal properly were denied by the administrative
judge.
     Mr. Wagoner now appeals the Board’s final decision
affirming OPM’s decisions that he was not eligible for
retirement benefits and was required to repay $24,681.30
in annuity benefits. We have jurisdiction under 28 U.S.C.
§ 1295(a)(9).
                   STANDARD OF REVIEW
    The scope of our review in an appeal from a decision
of the Board is limited. In general, we can set aside the
Board’s decision only if it was “(1) arbitrary, capricious,
an abuse of discretion, or otherwise not in accordance
with law; (2) obtained without procedures required by
law, rule, or regulation having been followed; or (3) un-
supported by substantial evidence.” 5 U.S.C. § 7703(c);
see Briggs v. Merit Sys. Prot. Bd., 331 F.3d 1307, 1311
(Fed. Cir. 2003). Substantial evidence is “such relevant
evidence as a reasonable mind might accept as adequate
to support a conclusion.” Consol. Edison Co. v. NLRB,
6                                 WILLIAM WAGONER   v. OPM
305 U.S. 197, 229 (1938). Mr. Wagoner has the burden of
proving that he is entitled to retirement benefits. Carreon
v. Office of Pers. Mgmt., 321 F.3d 1128, 1130 (Fed. Cir.
2003).
     We begin with Mr. Wagoner’s main contention: that
the Board erred and deprived him of due process rights by
not allowing him to present evidence and serve discovery
requests regarding his dismissal from the USPS. Despite
Mr. Wagoner’s protestations, the grounds for his removal
are not within the scope of this case. Mr. Wagoner twice
appealed the USPS’s decision to remove him from his
position, first in 2008, and again in 2009. The Board
dismissed his first appeal in 2008 without prejudice to re-
filing when his related criminal proceedings were com-
pleted. The Board dismissed his second, re-filed appeal,
as untimely. Mr. Wagoner did not appeal the Board’s
dismissals of his claim of wrongful removal. The current
case relates only to OPM’s decisions regarding Mr. Wag-
oner’s eligibility for retirement benefits. Because Mr.
Wagoner did not further appeal the Board’s dismissal of
his removal in the earlier filed case, the Board was enti-
tled to rely on Mr. Wagoner’s removal for misconduct as
an established fact in the current case. As such, the
Board properly did not consider evidence relating to the
propriety of Mr. Wagoner’s removal because it was beyond
the scope of this case.
    We now briefly turn to the substantive merits of Mr.
Wagoner’s current appeal. Section 8336 of Title 5 pro-
vides the conditions under which a civil servant may be
entitled to an annuity in the CSRS. Two provisions are
important to Mr. Wagoner’s appeal: (1) 5 U.S.C. § 8336(a),
which provides that an employee is entitled to an imme-
diate retirement under CSRS so long as he or she is at
least 55 years of age and has completed 30 years of cred-
itable federal service; and (2) 5 U.S.C. § 8336(d), which
provides that an employee is entitled to an annuity if the
employee is separated from service involuntarily, but not
 WILLIAM WAGONER   v. OPM                              7
removed for cause for misconduct, and is at least 50 years
of age and has completed 25 years of creditable federal
service. OPM established that Mr. Wagoner was not
eligible for CSRS retirement benefits under either provi-
sion. Because he was under 55 years of age at the time of
his separation he was not eligible under § 8336(a). Mr.
Wagoner was also removed for cause on charges of mis-
conduct and was, thus, not eligible under § 8336(d). As
such, OPM and the Board properly determined that Mr.
Wagoner was not eligible for CSRS retirement benefits.
Mr. Wagoner does not claim that the Board applied the
wrong law or that the Board misstated his age or the
grounds for his removal. Instead, Mr. Wagoner contends
that his retirement benefits could not be revoked because
the USPS and OPM had approved his request for VER.
We find, however, that the Board correctly rejected that
assertion. See Office of Pers. Mgmt. v. Richmond, 496
U.S. 414, 422 (1990) (“no money can be paid out of the
Treasury unless it has been appropriated by an act of
Congress.”) (quoting Cincinnati Soap Co. v. United States,
301 U.S. 308, 321 (1937)).
    OPM also established with substantial evidence that
Mr. Wagoner had received an overpayment of retirement
annuities in the amount of $24,681.30 because he was not
eligible for benefits under the CSRS. Mr. Wagoner did
not, and has not, challenged OPM’s calculation of the
overpayment, nor has he argued that the collection of the
overpaid benefits would be against equity and good con-
science under 5 U.S.C. § 8346(b).     Mr. Wagoner’s only
assertion is that he was denied due process because he
was denied the ability to present evidence and conduct
discovery regarding the propriety of his removal from the
USPS. As previously stated, however, the propriety of
Mr. Wagoner’s removal from the USPS is not within the
scope of this case, and any evidence presented relating to
his removal would be irrelevant.
8                               WILLIAM WAGONER   v. OPM
                     CONCLUSION
    Because we hold that the Board did not violate Mr.
Wagoner’s due process rights by refusing to allow evi-
dence beyond the scope of the case, we affirm the final
order of the Board.
                     AFFIRMED
