                          UNITED STATES OF AMERICA
                       MERIT SYSTEMS PROTECTION BOARD


     DANIEL FLOYD RIVERS,                            DOCKET NUMBER
                  Appellant,                         AT-0845-14-0673-I-1

                  v.

     OFFICE OF PERSONNEL                             DATE: February 6, 2015
       MANAGEMENT,
                   Agency.



             THIS FINAL ORDER IS NO NPRECEDENTIAL 1

           Daniel Floyd Rivers, Burton, South Carolina, pro se.

           Christopher H. Ziebarth, 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) final decision denying
     the appellant’s request to waive interest due on the redeposit of previously
     withdrawn retirement contributions. Generally, we grant petitions such as this

     1
        A nonprecedential order is one that the Board has determined does not add
     sign ificantly 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 Parties may cite nonprecedential orders,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

     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).

                      DISCUSSION OF ARGUMENTS ON REVIEW
¶2        The appellant worked for the Department of the Navy from May 1984 to
     June 1986. Initial Appeal File (IAF), Tab 5 at 25, 33. After his resignation, he
     applied for and received a refund of his retirement deductions in the amount of
     $626.53. See id. at 16. In 1987, the appellant returned to federal service and
     eventually sought to redeposit the withdrawn retirement deductions. See id. at
     14-16, 32. In June 1995, OPM informed the appellant that he had to redeposit
     $60.00 in order to receive service credit for his 2 years of service with the
     Department of the Navy. See IAF, Tab 3 at 7; see also IAF, Tab 5 at 14-15.
     Nearly a year later, on April 23, 1996, the appellant submitted a $60.00 redeposit
     to OPM. See IAF, Tab 3 at 8-9. In September 2010, OPM informed the appellant
     that he owed an additional $4.00 in unpaid interest that had accrued since he did
     not pay the $60.00 by December 31, 1995.         Id. at 12.   Shortly thereafter, the
                                                                                        3

     appellant submitted payment for $4.20, and OPM informed the appellant’s
     employing agency that the appellant’s account was paid in full. Id. at 10-11.
¶3        Believing that he had successfully refunded his civil service retirement
     account, the appellant retired from federal service on January 11, 2014. See IAF,
     Tab 5 at 21. In March 2014, OPM informed the appellant that it had incorrectly
     calculated his redeposit and that he owed an additional $2,593 in order to receive
     credit for his service from 1984 to 1986. 2 Id. at 13-15. The appellant paid the
     full amount in April 2014, but requested that OPM waive the interest as OPM was
     responsible for the miscalculations.     IAF, Tab 1.     In an April 14, 2014 final
     decision, OPM denied the appellant’s request. IAF, Tab 5 at 10.
¶4        The appellant timely appealed OPM’s decision, arguing that the interest had
     accrued due to OPM’s error and that it should be waived. See IAF, Tab 1 at 4-5,
     7.   In response, OPM acknowledged that it had miscalculated the redeposit
     amount but asserted that the payment of interest under these circumstances is a
     statutory requirement that cannot be waived. IAF, Tab 5 at 4-5. Subsequent to a
     telephonic prehearing conference, the appellant filed an additional pleading
     requesting that the date through which the interest was calculated be adjusted
     from June 30, 2011, to June 1, 1995, the date of his initial request to redeposit his
     withdrawn retirement deductions.       IAF, Tabs 9-10.    The administrative judge
     affirmed OPM’s decision, finding no basis to waive the interest requirement for
     the redeposit or to stop the accrual of interest sooner.       IAF, Tab 13, Initial
     Decision (ID).
¶5        On petition for review, the appellant reiterates his argument that OPM
     should waive the interest that accrued after the date of his original request to
     redeposit the withdrawn retirement deductions in 1995, complains about the


     2
       OPM derived the total amount due by combining the amount of the appellant’s
     withdrawn retirement contributions for the 1984-1986 time period ($626.53), p lus
     interest accrued from November 12, 1986, through June 30, 2011 ($2030.80), minus
     what the appellant had already paid ($64.20). IAF, Tab 5 at 13, 16-20.
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     burden being placed on him, and challenges the administrative judge’s statement
     that interest would not have accrued if the appellant had paid the $60.00 by
     December 31, 1995, because he was never informed that the $60.00 was due by
     any particular date. See Petition for Review (PFR) File, Tab 1. The agency has
     responded in opposition. PFR File, Tab 4.
¶6        We have considered the appellant’s arguments but find that they present no
     reason to disturb the administrative judge’s well-reasoned findings. 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 where he considered the evidence as a
     whole, drew appropriate inferences, and made reasoned conclusions); see also
     Broughton v. Department of Health & Human Services, 33 M.S.P.R. 357, 359
     (1987) (same). As the administrative judge explained, the payment of interest on
     a redeposit is a statutory requirement, and there is no law, rule, or regulation that
     would allow OPM the discretion to waive the payment of interest. ID at 3 (citing
     5 U.S.C. § 8334(d)(1)).        The administrative judge also correctly rejected the
     appellant’s argument that interest should be waived based on equitable
     considerations, noting that “the doctrine of equitable estoppel cannot be used to
     pay a retirement benefit from the Federal Treasury that is contrary to a statutory
     appropriation because the payment would violate the Appropriations Clause of
     the Constitution.” ID at 3 (citing Office of Personnel Management v. Richmond,
     496 U.S. 414, 416-17 (1990)). Lastly, to the extent that the initial decision may
     be interpreted as suggesting that payment of $60.00 by December 31, 1995,
     would have prevented any further interest from accruing, we note that such
     interpretation is incorrect.    See ID at 4; PFR File, Tab 1 at 2.      Even if the
     appellant had promptly paid the $60.00 as advised by OPM, the additional $4.00
     of interest would not have accrued, but the interest on the remaining amount of
     the unpaid redeposit would have continued to accrue until the appellant repaid the
     entire amount of the redeposit—$626.53—plus interest.
                                                                                       5

¶7        Thus, as the administrative judge expressed, we are sympathetic to the
     appellant’s situation, but there is no remedy available that would allow for waiver
     or reduction of the amount of interest owed. Therefore, we DENY the petition for
     review.

                        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.
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     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.
