UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

DWIGHT S. SHIMODA,

Appellant,

v.

OFFICE OF PERSONNEL 

MANAGEMENT,

Agency.

DOCKET NUMBER

SF-0845-20-0258-I-1

DATE: June 21, 2024

THIS FINAL ORDER IS NONPRECEDENTIAL1

Dwight S. Shimoda, Las Vegas, Nevada, pro se.

Trina Janifer, Washington, D.C., for the agency.

BEFORE

Cathy A. Harris, Chairman

Raymond A. Limon, Vice Chairman

Henry J. Kerner, Member

FINAL ORDER

The appellant has filed a petition for review of the initial decision, which

affirmed as modified the reconsideration decision issued by the Office of

Personnel Management (OPM) that determined (1) that he had received an

overpayment of $32,665.00 in disability retirement annuity benefits under the

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 A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).
Federal Employees’ Retirement System (FERS) and (2) that he was not entitled to

a waiver of the same. Generally, we grant petitions such as this one only in the

following circumstances: 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

administrative 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. 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, 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).

The appellant does not challenge, and we discern no basis to disturb, the

administrative judge’s reasoned conclusion that OPM proved the existence of the

overpayment at issue, which occurred as a result of his concurrent receipt of

disability insurance benefits from the Social Security Administration (SSA)

during the period of May 1, 2014, through May 30, 2017. Initial Appeal File

(IAF), Tab 51, Initial Decision (ID) at 5-6; see 5 U.S.C. § 8452(a); 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); Johnston v. Office of Personnel Management, 70 M.S.P.R. 109, 112-17,

aff’d, 99 F.3d 1160 (Fed. Cir. 1996) (Table); 5 C.F.R. § 844.302. Similarly, the

appellant does not challenge, and we discern no basis to disturb, the

administrative judge’s finding that the appellant was not without fault in creating

the overpayment insofar as he failed to report his receipt of SSA benefits to OPM

despite the agency’s repeated instructions to do so. IAF, Tab 6 at 86, 109;

2
ID at 7-9; see Ewing v. Office of Personnel Management, 100 M.S.P.R. 224, ¶ 5

(2005) (finding the appellant at fault for an overpayment of FERS disability

retirement annuity benefits when he failed to report his receipt of SSA benefits to

OPM despite being instructed to do so); see also 5 C.F.R. § 845.302(a) (setting

forth pertinent considerations in finding fault).

Instead, the appellant seemingly asserts that the administrative judge erred

in her modification of OPM’s reconsideration decision, i.e., in her adjustment of

his repayment schedule from $42.00 per month to $5.00 per month. Petition for

Review (PFR) File, Tab 2 at 4-5, Tab 3 at 4-5; ID at 9-14. To this end, the

appellant provides additional bills/financial statements, ostensibly to show that he

is unable to repay the debt at the rate of $5.00 per month. PFR File, Tab 2

at 6-14. Neither the appellant’s arguments nor the documents that he provides

warrant a different outcome. Indeed, all of the financial information that the

appellant submits predates the initial decision, and he offers no explanation as to

why he could not submit this information prior to the close of the record. 2

See Avansino v. U.S. Postal Service, 3 M.S.P.R. 211, 214 (1980) (finding that the

Board generally will not consider evidence submitted for the first time with the

petition for review absent a showing that it was unavailable before the record was

closed despite the party’s due diligence). Moreover, insofar as none of these

documents constitute new evidence, a different outcome is not warranted.

See 5 C.F.R. § 1201.115(d) (“To constitute new evidence, the information

contained in the documents, not just the documents themselves, must have been

unavailable despite due diligence when the record closed.”).

Accordingly, we affirm the initial decision. 

2

 Three of the bills indicate a due date subsequent to the issuance of the initial decision,

PFR File, Tab 2 at 8-10; ID at 1; however, the statements themselves predate the initial

decision, see 5 C.F.R. § 1201.115(d). Similarly, although the appellant provides a

financial statement regarding automobile insurance for a period of time subsequent to

the initial decision, PFR File, Tab 2 at 12; ID at 1, the statement itself indicates that it

was prepared prior to the issuance of the initial decision, see 5 C.F.R. § 1201.115(d). 

3
NOTICE OF APPEAL RIGHTS3

You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By

statute, the nature of your claims determines the time limit for seeking such

review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).

Although we offer the following summary of available appeal rights, the Merit

Systems Protection Board does not provide legal advice on which option is most

appropriate for your situation and the rights described below do not represent a

statement of how courts will rule regarding which cases fall within their

jurisdiction. If you wish to seek review of this final decision, you should

immediately review the law applicable to your claims and carefully follow all

filing time limits and requirements. Failure to file within the applicable time

limit may result in the dismissal of your case by your chosen forum.

Please read carefully each of the three main possible choices of review

below to decide which one applies to your particular case. If you have questions

about whether a particular forum is the appropriate one to review your case, you

should contact that forum for more information. 

(1) Judicial review in general. As a general rule, an appellant seeking

judicial review of a final Board order must file a petition for review with the U.S.

Court of Appeals for the Federal Circuit, which must be received by the court

within 60 calendar days of the date of issuance of this decision. 5 U.S.C.

§ 7703(b)(1)(A). 

If you submit a petition for review to the U.S. Court of Appeals for the

Federal Circuit, you must submit your petition to the court at the

following address: 

3

 Since the issuance of the initial decision in this matter, the Board may have updated

the notice of review rights included in final decisions. As indicated in the notice, the

Board cannot advise which option is most appropriate in any matter.

4
U.S. Court of Appeals 

for the Federal Circuit 

717 Madison Place, N.W. 

Washington, D.C. 20439 

Additional information about the U.S. Court of Appeals for the Federal

Circuit 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, 10, and 11. 

If you are interested in securing pro bono representation for an appeal to

the U.S. 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

Board neither endorses the services provided by any attorney nor warrants that

any attorney will accept representation in a given case. 

(2) Judicial or EEOC review of cases involving a claim of

discrimination. This option applies to you only if you have claimed that you

were affected by an action that is appealable to the Board and that such action

was based, in whole or in part, on unlawful discrimination. If so, you may obtain

judicial review of this decision—including a disposition of your discrimination

claims—by filing a civil action with an appropriate U.S. district court (not the

U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you

receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems

Protection Board, 582 U.S. 420 (2017). If you have a representative in this case,

and your representative receives this decision before you do, then you must file

with the district court no later than 30 calendar days after your representative

receives this decision. If the action involves a claim of discrimination based on

race, color, religion, sex, national origin, or a disabling condition, you may be

entitled to representation by a court-appointed lawyer and to waiver of any

5
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.

§ 2000e-5(f) and 29 U.S.C. § 794a. 

Contact information for U.S. district courts can be found at their respective

websites, which can be accessed through the link below: 

http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx. 

Alternatively, you may request review by the Equal Employment

Opportunity Commission (EEOC) of your discrimination claims only, excluding

all other issues. 5 U.S.C. § 7702(b)(1). You must file any such request with the

EEOC’s Office of Federal Operations within 30 calendar days after you receive

this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,

and your representative receives this decision before you do, then you must file

with the EEOC no later than 30 calendar days after your representative receives

this decision. 

If you submit a request for review to the EEOC by regular U.S. mail, the

address of the EEOC is: 

Office of Federal Operations 

Equal Employment Opportunity Commission 

P.O. Box 77960 

Washington, D.C. 20013 

If you submit a request for review to the EEOC via commercial delivery or

by a method requiring a signature, it must be addressed to: 

Office of Federal Operations 

Equal Employment Opportunity Commission 

131 M Street, N.E. 

Suite 5SW12G 

Washington, D.C. 20507 

(3) Judicial review pursuant to the Whistleblower Protection

Enhancement Act of 2012. This option applies to you only if you have raised

claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or

6
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).

If so, and your judicial petition for review “raises no challenge to the Board’s

disposition of allegations of a prohibited personnel practice described in section

2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),

(B), (C), or (D),” then you may file a petition for judicial review either with the

U.S. Court of Appeals for the Federal Circuit or any court of appeals of

competent jurisdiction.4 The court of appeals must receive your petition for

review within 60 days of the date of issuance of this decision. 5 U.S.C.

§ 7703(b)(1)(B). 

If you submit a petition for judicial review to the U.S. Court of Appeals for

the Federal Circuit, you must submit your petition to the court at the

following address: 

U.S. Court of Appeals 

for the Federal Circuit 

717 Madison Place, N.W. 

Washington, D.C. 20439 

Additional information about the U.S. Court of Appeals for the Federal

Circuit 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, 10, and 11. 

If you are interested in securing pro bono representation for an appeal to

the U.S. 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

4

 The original statutory provision that provided for judicial review of certain

whistleblower claims by any court of appeals of competent jurisdiction expired on

December 27, 2017. The All Circuit Review Act, signed into law by the President on

July 7, 2018, permanently allows appellants to file petitions for judicial review of

MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals

for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.

The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,

132 Stat. 1510. 

7
Board neither endorses the services provided by any attorney nor warrants that

any attorney will accept representation in a given case. 

Contact information for the courts of appeals can be found at their

respective websites, which can be accessed through the link below: 

http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx. 

 

 

FOR THE BOARD: ______________________________

Gina K. Grippando

Clerk of the Board

Washington, D.C.

8