NOTE: This disposition is nonprecedential. 

United States Court of Appeals for the Federal Circuit 

06-3324 

LLOYD D. FISHER, JR., 

Petitioner, 

v. 

OFFICE OF PERSONNEL MANAGEMENT, 

Respondent. 

Lloyd D. Fisher, Jr., of Lawrence, Kansas, pro se. 

Michael S. Dufault, Trial Attorney, Commercial Litigation Branch, Civil Division, 

United States Department of Justice, of Washington, DC, for respondent. With him on 

the brief were Peter D. Keisler, Assistant Attorney General, David M. Cohen, Director, 

and Franklin E. White, Jr., Assistant Director. 

Appealed from: United States Merit Systems Protection Board 
NOTE: This disposition is nonprecedential. 

United States Court of Appeals for the Federal Circuit 

06-3324 

LLOYD D. FISHER, JR., 

 Petitioner, 

v. 

OFFICE OF PERSONNEL MANAGEMENT, 

 Respondent. 

____________________________ 

DECIDED: January 17, 2007 

____________________________ 

 

Before LOURIE, RADER, and BRYSON, Circuit Judges. 

PER CURIAM. 

DECISION 

Lloyd D. Fisher, Jr. (“Fisher”) appeals from the final decision of the Merit Systems 

Protection Board (the “Board”) affirming the decision of the Office of Personnel 

Management (“OPM”) denying his request for waiver of repayment of a benefit 

overpayment paid under the Federal Employees Retirement System (“FERS”). Fisher

v. Office of Pers. Mgmt., DE-0845-05-0500-1-1 (M.S.P.B. May 17, 2006). Because 

substantial evidence supports the Board’s findings, we affirm. 
BACKGROUND 

Fisher was employed at the U.S. Department of Agriculture in Kansas from 

March 1998 until November 2000. Fisher applied for disability retirement benefits under 

the FERS on June 22, 2001. OPM approved Fisher’s application for disability 

retirement benefits on October 3, 2001, effective from August 26, 2000. 

The letter awarding Fisher benefits also advised him that he needed to provide 

proof that he had applied for Social Security Administration (“SSA”) disability benefits 

and to notify OPM of any SSA disability benefits received. In a letter to Fisher dated 

March 7, 2002, OPM informed Fisher that “[b]y law, the [OPM] is required to deduct all 

or a part of Social Security disability benefits from the FERS disability benefit paid to a 

retiree.” See 5 U.S.C. § 8452(a)(2)(A). The letter requested that Fisher provide an 

update as to the status of his SSA disability benefits application. The letter also 

included the following information: 

If you are overpaid FERS disability benefits because of receipt of Social 

Security disability benefits, OPM will send you a notice of the amount of 

overpayment. You are legally required to repay this money to OPM. If 

SSA sends you a retroactive payment, hold that award until you receive a 

notice of the amount of overpayment from OPM, so that you have 

sufficient funds to repay your duplicate payment. 

In a letter to Fisher dated July 21, 2002, the SSA informed Fisher that he was 

eligible for monthly disability benefits, effective June 1, 2001. The letter stated that 

Fisher would receive a lump sum payment of $13,683.00 in July 2002 and that he would 

receive monthly payments of $1065.00 starting in August of 2002. 

Fisher promptly notified OPM of the award of SSA disability benefits on July 23, 

2002. As instructed by the March 7, 2002, OPM letter, Fisher set aside the lump sum 

payment upon receiving it from the SSA. In a letter to Fisher dated August 12, 2002, 

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OPM informed Fisher that based on the retroactive award of SSA disability benefits, he 

had received an overpayment of FERS disability benefits in the amount of $10,055.00 

and that he would be required to repay that amount. The letter also informed Fisher 

that he could request a waiver so that repayment would not be required: “To qualify for 

waiver, you must satisfy two basic conditions. The first involves fault; the second 

involves a determination of equity and good conscience.” See 5 U.S.C. § 8346(b). The 

letter further explained that meeting the requirement of equity and good conscience 

required a showing of financial hardship, detrimental reliance, or unconscionability. See

5 C.F.R. § 831.1403. The letter also stated that a form requesting waiver must be 

returned to OPM within thirty days of the letter date. 

Fisher returned the form on September 12, 2002. In a letter dated April 25, 2003, 

OPM denied Fisher’s request for waiver because it was postmarked September 13, 

2002, and therefore was not within the thirty-day window specified by the overpayment 

letter. After Fisher appealed that decision to the Board, OPM rescinded its decision and 

agreed to review the merits of Fisher’s waiver request. However, in its reconsideration 

decision dated September 24, 2004, OPM denied a waiver, stating that Fisher was not 

without fault in causing the overpayment and that he did not meet the high 

unconscionability standard. OPM also found no financial hardship and stated that it 

would collect the overpayment in monthly installments of $279.00. OPM reissued its 

decision on August 5, 2005 after Fisher informed it that he had not received a copy of 

the decision. 

Fisher appealed OPM’s decision to the Denver Field Office of the Board on 

September 9, 2005. In an order dated October 5, 2005, the Administrative Judge (“AJ”) 

06-3324 -3- 
summarized a telephonic status conference conducted that same day. The AJ’s order 

noted that Fisher essentially did not dispute that an overpayment existed and that OPM 

acknowledged that Fisher was not at fault in causing or contributing to the overpayment. 

The AJ’s order also stated that she had explained to Fisher that an additional finding to 

support a waiver, such as financial hardship or unconscionability, would be required 

even if Fisher was without fault. Fisher argued that a waiver was appropriate based on 

considerations of equity, and stated that he would consider amending his appeal to 

include arguments of financial hardship. 

The AJ issued an initial determination affirming the decision of OPM on January 

10, 2006. The AJ found that Fisher had admitted the amount and existence of the 

overpayment and that the existence of the overpayment was further demonstrated by 

computer records and written calculations from OPM. Next, the AJ found that Fisher 

was without fault in causing the overpayment, thus meeting the first test for waiver 

eligibility. The AJ also found that under OPM’s Policy Guidelines on the Disposition of 

Civil Service Retirement Overpayments, May 1995, “a without-fault appellant, who 

accepts a payment he suspects or knows to be erroneous, is obligated to set aside the 

overpaid money pending recovery” (the set-aside rule). The AJ found that Fisher was 

aware of the set-aside requirement and had in fact set aside the SSA lump sum 

payment as requested. 

The AJ then turned to Fisher’s argument that waiver was appropriate because 

repayment would be unconscionable on other equitable grounds. Relying on a prior 

Board decision, the AJ stated that the word “unconscionable” means “going beyond the 

bounds of what is customary or reasonable; ridiculously or unjustly excessive; 

06-3324 -4- 
inordinate” and is determined by a totality of the circumstances approach. But the AJ 

found that Fisher had failed to prove by substantial evidence the existence of the kind of 

gross and egregious error necessary to meet the standard for unconscionability. 

On May 16, 2006, the Board denied Fisher’s petition for review, and the initial 

decision became the final decision of the Board. See 5 C.F.R. § 1201.113. Fisher 

timely appealed to this court, and we have jurisdiction pursuant to 28 U.S.C. § 

1295(a)(9). 

DISCUSSION 

The scope of our review in an appeal from a decision of the Board is limited. We 

must affirm the Board’s decision unless 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) unsupported by 

substantial evidence.” 5 U.S.C. § 7703(c); see Briggs v. Merit Sys. Prot. Bd., 331 F.3d 

1307, 1311 (Fed. Cir. 2003). Fisher has the burden of proving entitlement to a waiver of 

an overpayment by substantial evidence. 5 C.F.R. § 845.307(b) (“Burden of annuitant. 

The recipient of an overpayment must establish by substantial evidence that he or she 

is eligible for waiver or an adjustment.”). 

On appeal, Fisher argues that the Board erred in applying the set-aside rule and 

in denying his claim on the basis of lack of financial hardship rather than on the basis of 

equity and good conscience. In support of his argument that he has met the 

requirements for a waiver under equity and good conscience, Fisher argues that the AJ 

did not adequately consider the impact of his physical disabilities, particularly upon his 

ability to adequately represent himself. Fisher also argues that the FERS system which 

06-3324 -5- 
relates benefit payments to the separate SSA system generates inequitable outcomes. 

Finally, Fisher argues that OPM’s pattern of conduct during the litigation of the waiver 

issue further supports a finding of unconscionability. 

In response, the government argues that the Board did consider Fisher’s claim 

for waiver on the basis of unconscionability. The government also argues that Fisher’s 

medical condition was taken into consideration by providing reasonable accommodation 

during the prior litigation, such as the grant of extensions of time for Fisher to file his 

arguments. The government notes that Fisher’s decision not to pursue a waiver on the 

basis of financial hardship limited the Board’s ability to take his medical condition into 

consideration because that is not one of the factors for a finding of unconscionability. 

The government adds that the set-aside rule is relevant even to a claim based on equity 

and good conscience because OPM’s policy guidelines provide that, absent exceptional 

circumstances, recovery of an overpayment is not against equity and good conscience. 

We do not find the Board’s determination to be arbitrary, capricious, or an abuse 

of discretion. Fisher misapprehends the import of the Board’s decision. Even though 

Fisher was found to be without fault, he must also have demonstrated that collection of 

the overpayment would have been against equity and good conscience. See 5 U.S.C. § 

8346(b). There are three bases for meeting the equity and good conscience standard: 

financial hardship; detrimental reliance; and unconscionability. See 5 C.F.R. § 

831.1403. Because Fisher, as he emphasizes to this court, did not make an argument 

for financial hardship or detrimental reliance, he could only meet the standard by 

demonstrating unconscionability. The AJ’s initial determination, adopted by the Board, 

06-3324 -6- 
while including some discussion of financial hardship, clearly addresses Fisher’s claim 

of unconscionability. 

Substantial evidence supports the Board’s finding that Fisher’s claims did not 

meet the high threshold for a finding of unconscionability. Fisher’s complaint at its core 

is directed to the relationship of FERS disability benefit payments to SSA disability 

benefits. However, that is the system created by statute, and we are bound by it. Also, 

as explained by the AJ, Fisher’s arguments relating to his disabilities are more 

appropriate to a consideration of financial hardship, not unconscionability. 

Finally, we note that the statutory scheme has actually worked to Fisher’s benefit. 

He was able to receive benefits from the FERS to assist him with his living expenses 

during the pendency of his appeal concerning SSA disability benefits. Now that the 

SSA has determined that Fisher is entitled to disability benefits, he is merely being 

required to repay the FERS for the payments it made to him when it was properly the 

responsibility of the SSA to make those payments. In addition, even though Fisher 

admittedly has the entire sum set aside to return the overpayment now, OPM is allowing 

him to make interest free monthly payments of $279.00 to repay the sum owed. OPM’s 

decision is thus not unconscionable. 

We therefore affirm the Board’s decision. 

06-3324 -7-