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### THIS FINAL ORDER IS NONPRECEDENTIAL 1

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1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions.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; 2ID 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). 3NOTICE OF APPEAL RIGHTS 3

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. 4U.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 5requirement 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 6other 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. 7Board 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