                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     JIMMY L. MAYE,                                  DOCKET NUMBER
                         Appellant,                  DC-0845-14-0616-I-1

                  v.

     OFFICE OF PERSONNEL                             DATE: December 2, 2014
       MANAGEMENT,
                   Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Jimmy L. Maye, Kinston, North Carolina, pro se.

           Patrick Jennings, 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 reconsideration decision of the Office of Personnel Management
     (OPM), which found that the appellant was overpaid in Federal Employees’
     Retirement System (FERS) disability benefits, denied his request for a waiver of

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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     collection of the overpayment, and established a repayment schedule. 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).

                                      BACKGROUND
¶2        The appellant filed a Board appeal, challenging OPM’s reconsideration
     decision, which found that he was overpaid $28,605.44 in FERS disability
     annuity benefits, denied his request for a waiver, and adjusted the collection
     schedule such that the appellant would pay $150 per month for 190 months with a
     final payment of $105.44. See Initial Appeal File (IAF), Tab 1; see also IAF, Tab
     4 at 5-11 (reconsideration decision).     As part of the agency’s response file
     submitted prior to the hearing, OPM offered a reduced collection schedule of
     approximately $125 per month for 228 months with a final payment of $105.44 in
     settlement of the appeal. IAF, Tab 4 at 4. The agency instructed the appellant to
     contact them to accept the settlement offer or to return a Financial Resources
     Questionnaire (FRQ) with an alternate recovery plan.         Id.   The appeal file
                                                                                      3

     contains only one FRQ completed by the appellant in November 2012, indicating
     a monthly surplus of $500. Id. at 20-22.
¶3        The administrative judge held a telephonic hearing, during which the
     appellant testified that he did not believe that OPM had correctly calculated the
     overpayment, responded to the administrative judge’s questioning that he did not
     perform his own calculation or analysis, and voiced no specific reason the
     calculation was incorrect. IAF, Tab 13, Initial Decision (ID) at 3. The appellant
     repeated his vague argument from the written initial appeal that he is a cancer
     survivor and heart disease patient and is unable to make the repayments. See
     IAF, Tab 1 at 2; ID at 4. The appellant also testified that he had received OPM’s
     June 2010 notice instructing him not to negotiate his Social Security checks until
     his FERS benefit had been reduced. See IAF, Tab 4 at 56-58; ID at 4. In the
     initial decision, the administrative judge affirmed OPM’s decision, finding that:
     (1) OPM proved the overpayment by preponderant evidence; (2) the appellant was
     not entitled to a waiver of the overpayment; and (3) the appellant was not entitled
     to an adjustment of the repayment schedule. ID at 3-5.
¶4        On review, the appellant submitted a one-page handwritten petition,
     asserting that he is without fault for the overpayment and that OPM “created this
     problem” and is obligated to correct errors in the payment of benefits. Petition
     for Review (PFR) File, Tab 1 at 1. The petition makes brief references to OPM
     regulations regarding the collection and compromise of debts, as well
     precedential Board authority regarding the standard for waiving recovery of an
     overpayment due to unconscionability and OPM delay. Id. The agency filed a
     reply, arguing that the appellant has not submitted any new and material evidence
     or shown that the administrative judge’s decision was based on an erroneous
     interpretation of statute or regulation.   PFR File, Tab 4 at 4.    The appellant
     responded with a conclusory statement that the initial decision was based on an
     erroneous interpretation of law, statute, and regulation but did not specify the
                                                                                      4

     error. PFR File, Tab 5 at 2. He further stated that the administrative judge had
     incorrectly affirmed OPM’s request for 228 monthly payments of $150. Id.

                     DISCUSSION OF ARGUMENTS ON REVIEW
¶5        OPM has the burden of establishing by a preponderance of the evidence the
     existence and amount of the overpayment.        Cebzanov v. Office of Personnel
     Management, 100 M.S.P.R. 170, ¶ 6 (2005); 5 C.F.R. § 845.307(a). As noted
     above, the appellant testified during the hearing that OPM had not properly
     calculated the amount of the overpayment but provided no specific argument
     concerning the alleged error. See ID at 3. On review, the appellant did not repeat
     his argument about the miscalculation of the overpayment.

¶6        We find that the administrative judge correctly found that OPM proved the
     existence and amount of the overpayment by preponderant evidence; this finding
     is supported by the evidence in the record.       In its reconsideration decision
     affirming the overpayment and denying the appellant a waiver, OPM provided
     detailed calculations of the appellant’s gross interim payments, actual accrued
     annuity due, and statutorily required reduction to the monthly annuity by any
     Social Security disability benefit. IAF, Tab 4 at 5-11. OPM provided evidence
     that the claimant was deemed eligible for Social Security disability benefits as of
     July 1, 2010, with a monthly benefit of $2,017.        Id. at 42.    Per 5 U.S.C.
     § 8452(d)(1), the annuity to which an annuitant is entitled under section 8452
     “shall not be less than the amount of an annuity computed under [s]ection 8415,”
     which governs the computation of a basic annuity.       Given the amount of the
     appellant’s monthly Social Security disability benefit in relation to his accrued
     FERS disability annuity, the appellant’s annuity would have been less than that to
     which he was entitled under 5 U.S.C. § 8415, and thus OPM awarded the amount
     of the appellant’s basic annuity pursuant to 5 U.S.C. § 8452(d)(1). IAF, Tab 4 at
     39 (compare “FERS E Rate” column with “FERS Disability” column); see id. at
     8.
                                                                                       5

¶7          The administrative judge correctly found that the appellant failed to
     establish his entitlement to a waiver of collection of the overpayment.
     Under 5 U.S.C. § 8470(b), recovery of an overpayment may be waived when the
     annuitant is without fault and recovery would be against equity and good
     conscience. Boone v. Office of Personnel Management, 119 M.S.P.R. 53, ¶ 5
     (2012). The appellant has the burden of establishing entitlement to a waiver of an
     overpayment by substantial evidence. Id.; 5 C.F.R. § 1201.56(a). Recovery is
     against equity and good conscience when it would cause financial hardship, the
     annuitant can show that he relinquished a valuable right or changed positions for
     the worse, or recovery would be unconscionable under the circumstances.
     Boone, 119 M.S.P.R. 53, ¶ 5; 5 C.F.R. § 845.303. Although the appellant made
     vague references to OPM’s regulatory authority regarding suspension of debt
     collection and a debtor’s right to request a compromise, he cites to nothing in the
     regulations that implies a debtor is entitled to such compromise. See IAF, Tab 8;
     PFR File, Tab 1.
¶8          On   review,   the   appellant   cited   Aguon   v.   Office   of   Personnel
     Management, 42 M.S.P.R. 540, 549 (1989), for the Board’s standard on
     unconscionability. PFR File, Tab 1. As stated in Aguon, the Board has found
     that the unconscionability criterion is a high standard justifying waiver only
     under exceptional circumstances. Aguon, 42 M.S.P.R. at 549; see Boone, 119
     M.S.P.R. 53, ¶ 9. In contrast to the various lengthy delays by OPM discussed in
     Aguon, in the present case OPM notified the appellant in April 2012 of the
     overpayment he received from June 2010 to March 2012, after the agency
     calculated his accrued annuity due and received information on his entitlement to
     Social Security disability benefits. IAF, Tab 4 at 28; see Aguon, 42 M.S.P.R. at
     550.   The appellant testified that he received the July 2010 letter from OPM
     notifying him of the requirement of using any Social Security disability checks to
     reduce his FERS disability benefits and the requirement that the appellant
     immediately notify the agency of the award of Social Security benefits. See IAF,
                                                                                      6

      Tab 4 at 56-58; ID at 4. Although the appellant seeks to characterize the July
      2010 letter as evidence that OPM knew of the overpayment in 2010, the record
      does not support such an assertion, and the appellant has presented no evidence or
      testimony of an egregious delay by OPM in correcting the overpayment.         See
      James v. Office of Personnel Management, 72 M.S.P.R. 211, 218-19 (1996).

¶9         Under the set-aside rule, an annuitant who receives both interim annuity
      payments and Social Security disability payments is obligated by the principles
      of equity and good conscience to set aside the money to repay OPM for
      payments made in excess of the adjusted annuity amount. See OPM’s Policy
      Guidelines on the Disposition of Overpayments under the Civil Service
      Retirement System and the Federal Employees’ Retirement System § I.C.4
      (1995), located at IAF, Tab 5 at 15; see also James, 72 M.S.P.R. at 217. On
      review, the appellant did not dispute the administrative judge’s finding that he
      failed to provide evidence warranting an exception to this rule, and we see no
      reason to substitute our assessment for that of the administrative judge.     See
      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 the administrative judge
      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).
¶10        Accordingly, we find that the administrative judge weighed the evidence,
      reached the correct conclusion under the law, and issued a well-reasoned
      decision. We note that the appellant last submitted an FRQ in November 2012
      and that the administrative judge correctly found that the appellant provided no
      evidence or testimony indicating that the repayment schedule imposed a financial
      hardship sufficient to warrant further adjustment. ID at 4-5; IAF, Tab 4 at 20-22.
      Prior to the hearing, the agency offered the appellant a reduced collection
      schedule of approximately $125 per month for 228 months with a final payment
                                                                                       7

of $105.44 in settlement of the appeal, but he did not respond to this offer. 2 IAF,
Tab 4 at 4. Although the appellant testified to being a cancer survivor and heart
disease patient, he provided no evidence or testimony regarding his medical costs.
Should the appellant’s financial situation change, or his monthly expenses exceed
his monthly income, nothing in this final order prevents the appellant from
contacting OPM requesting an adjusted repayment scheduled based on an updated
FRQ.

                 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).



2
  The appellant’s assertion on review that the administrative judge affirmed a repayment
schedule of $150 per month for 228 months, exceeding the amount of the overpayment,
confuses OPM’s reconsideration decision and settlement offer prior to the hearing. See
PFR File, Tab 5 at 2; ID; IAF, Tab 4 at 4-11. The administrative judge affirmed OPM’s
reduction in monthly repayments from $246.61 to $150 per month without referring to
the length of the repayment. ID at 4-5. However, as the initial decision affirms OPM’s
reconsideration decision, it clearly affirmed the recalculated collection schedule of 190
monthly payments of $150 and a final payment of $105.44 as outlined in the
reconsideration decision. ID at 4-5; IAF, Tab 4 at 10.
                                                                                  8

     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.
