UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

JOSEPH W. FAIRFIELD,

Appellant,

v.

OFFICE OF PERSONNEL 

MANAGEMENT,

Agency.

DOCKET NUMBER

SF-0845-15-0738-I-1

DATE: June 28, 2016

THIS FINAL ORDER IS NONPRECEDENTIAL1

Joseph W. Fairfield, Shasta Lake, California, pro se.

Karla W. Yeakle, Washington, D.C., for the agency.

BEFORE

Susan Tsui Grundmann, 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) finding that he was overpaid $33,195.00 in disability annuity benefits 

under the Federal Employees’ Retirement System (FERS) and was not entitled to 

 1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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

a waiver of the overpayment. 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 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. 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, 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 is a FERS disability retirement annuitant. Initial Appeal File 

(IAF), Tab 2 at 7, Tab 5 at 40, 44, 55. By letter dated September 19, 2012, OPM

informed the appellant that his FERS annuity would be reduced if he were

awarded Social Security Administration (SSA) disability benefits and that he 

would be required to repay any resulting FERS annuity overpayment. IAF, Tab 5

at 15, Tab 31, Hearing Compact Disc (HCD) (testimony of the appellant). 

Included with the letter was a form for the appellant to complete upon his receipt 

of an SSA award. IAF, Tab 5 at 15-16. 

¶3 In May 2014, the appellant was awarded SSA disability benefits, retroactive 

to October 1, 2012. IAF, Tab 5 at 26-27, Tab 8 at 26, Tab 18 at 1; HCD

(testimony of the appellant). Subsequently, in late May or early June 2014, the 

appellant mailed OPM a completed copy of the form enclosed with the September 

19, 2012 letter, notifying OPM that he had been awarded SSA disability benefits. 
3

IAF, Tab 8 at 26, 32, 47; HCD (testimony of the appellant). The appellant

followed up with OPM by telephone and in writing on several occasions between 

June and October 2014. IAF, Tab 8 at 33‐34, 38, 47, 51-53; HCD (testimony of 

the appellant). 

¶4 Approximately 9 months after the appellant mailed the form to OPM, by 

letter dated February 28, 2015, OPM informed the appellant that his FERS 

annuity benefit would be reduced based on his entitlement to SSA disability 

benefits and that he had received a FERS annuity overpayment of $33,195.00 for 

the period between October 2012 through the end of February 2015. IAF, Tab 5

at 21-22. OPM proposed to collect the overpayment in 65 monthly installments 

of $510.09 and a final installment of $39.15. Id. at 22. 

¶5 The appellant submitted a timely request for reconsideration of the 

overpayment notice. Id. at 25. Approximately 4 months later, on July 16, 2015, 

OPM issued a reconsideration decision affirming its initial decision and finding 

that the appellant was not entitled to a waiver of the overpayment, but adjusting 

the collection schedule to 97 monthly installments of $340.00 and a final

installment of $215.00. Id. at 7-11.

¶6 The appellant filed a timely Board appeal challenging OPM’s 

reconsideration decision. IAF, Tab 2. He argued that OPM had miscalculated 

the overpayment and that the overpayment should be waived. IAF, Tab 2 at 5,

Tab 8 at 2, Tab 18 at 1-2, 7-8, Tab 34 at 2, 6, 8, Tab 37 at 2; HCD (testimony of 

the appellant). The appellant also raised a number of affirmative defenses, 

including discrimination based on disability and age, a violation of due process, 

harmful procedural error, and that OPM’s action was not in accordance with the 

law. IAF, Tab 2 at 6-7, Tab 8 at 1, Tab 13 at 1, Tab 19 at 7-10, Tab 27 at 5-8, 

Tab 34 at 2, 8.

¶7 After holding the appellant’s requested hearing, the administrative judge 

issued an initial decision affirming OPM’s reconsideration decision. IAF, 
4

Tab 40, Initial Decision (ID) at 1-2. The administrative judge found that OPM 

proved the existence and amount of the overpayment. ID at 8-21. He further 

found that the appellant failed to prove that he was entitled to a waiver of the 

overpayment because, although the appellant was without fault in causing the 

overpayment, ID at 22-23, OPM’s September 12, 2012 letter informed him of the 

set‐aside rule, ID at 24-29, and he failed to establish exceptional circumstances 

warranting waiver, ID at 30-38. Finally, the administrative judge denied the 

appellant’s affirmative defenses.

2

 ID at 40-44 nn.21, 48. 

¶8 The appellant has filed a timely petition for review of the initial decision, 

alleging that the administrative judge made factual, legal, and procedural errors. 

Petition for Review (PFR) File, Tab 1. 3

 The agency has responded in opposition 

to the petition for review. PFR File, Tab 4. 

 2 On review, the appellant does not appear to contest the administrative judge’s findings 

that he failed to prove his affirmative defenses of discrimination based on disability and 

age, and we discern no basis to disturb these findings. Petition for Review File, Tab 1.

3 To be timely, a petition for review must be filed within 35 days of the date of issuance 

of the initial decision, or, if the petitioner shows that the initial decision was received 

more than 5 days after the date of issuance, within 30 days of the date the petitioner 

received the initial decision. 5 C.F.R. § 1201.114(e). The appellant has the burden of 

proof on the issue of timeliness. 5 C.F.R. § 1201.56(b)(2)(i)(B). Here, the initial 

decision was issued on December 21, 2015, with a finality date of January 25, 2016. ID 

at 1, 49. The appellant, who is not registered as an e‐filer, filed his petition for review 

by mail, with a postmark date of January 27, 2016. PFR File, Tab 1 at 26; 5 C.F.R. 

§ 1201.4(1) (providing that the date of a filing by mail is the postmark date). The 

appellant subsequently submitted a statement, signed under penalty of perjury, that, as a 

result of delays in the mail, he did not receive the initial decision until January 2, 2016. 

PFR File, Tab 5 at 2-3. The appellant’s statement is unrebutted. Accordingly, because 

the appellant filed his petition for review 30 days after his receipt of the initial 

decision, we find that it was timely filed. 5 C.F.R. § 1201.114(e); see Comito v. 

Department of the Army, 90 M.S.P.R. 58, ¶ 1 n.1 (2001) (finding that a petition for 

review was timely where an appellant submitted an unrebutted statement under penalty 

of perjury that she received the initial decision more than 5 days after the date of 

issuance). 
5

DISCUSSION OF ARGUMENTS ON REVIEW

The administrative judge correctly found that OPM proved the existence and 

amount of the overpayment.

¶9 OPM bears the burden of proving the existence and amount of an annuity 

overpayment by preponderant evidence. Vojas v. Office of Personnel 

Management, 115 M.S.P.R. 502, ¶ 10 (2011); 5 C.F.R. § 845.307(a). Here, in 

finding that OPM satisfied this burden, the administrative judge relied on records 

in the agency file, including, but not limited to: (1) the appellant’s individual 

retirement record; (2) the February 28, 2015 overpayment notice and an 

attachment explaining how the overpayment was calculated; (3) the July 16, 2015 

reconsideration decision; (4) OPM documentation explaining the calculation of 

the appellant’s FERS disability annuity benefit; (5) computer printouts reflecting 

OPM’s verification of the appellant’s SSA disability benefits; and (6) the 

appellant’s own disability retirement application. ID at 8-21; see IAF, Tab 5 

at 7-11, 22-24, 26-27, 41-58. 

¶10 The administrative judge conducted a thorough and detailed review of

OPM’s calculation of the overpayment. ID at 9-21. Applying the formula for 

FERS disability retirement annuities to the evidence in the agency file, he 

concluded that OPM correctly calculated the appellant’s annuity, addressing each 

of the appellant’s allegations of error. ID at 10-11, 17-20; see 5 U.S.C. 

§ 8452(a)(1)(A) (providing the formula for FERS disability retirement annuities); 

IAF, Tab 27 at 3-4, Tab 37 at 4; HCD (testimony of the appellant). The 

administrative judge then proceeded to review OPM’s calculation of the 

statutorily required reduction in the appellant’s FERS annuity benefits based on 

his receipt of SSA disability benefits. ID at 9-13; see 5 U.S.C. § 8452(a)(2). 

After conducting this analysis, and determining the difference between the 

amount of FERS annuity benefits to which the appellant was entitled and the 

amount that he was paid for the time period at issue, the administrative judge 
6

concluded that OPM proved by a preponderance of the evidence that the appellant 

had received an overpayment of FERS disability retirement benefits in the 

amount of $33,195.00. ID at 11-13, 21. 

¶11 On review, the appellant challenges the administrative judge’s finding that 

OPM proved the existence and amount of the overpayment. PFR File, Tab 1 

at 3-10, 17, 24. As discussed below, we find that his arguments do not provide a 

basis to disturb the initial decision. 

The administrative judge properly considered the agency file as evidence of 

the existence and amount of the overpayment. 

¶12 On review, as he did below, the appellant contends that the administrative 

judge erred in considering the agency file as evidence that OPM proved the 

existence and amount of the overpayment, because the agency file is hearsay, and 

according to the appellant, is unreliable. PFR File, Tab 1 at 3-10; IAF, Tab 34 at 

1-4; HCD (testimony of the appellant). We disagree. 

¶13 It is well settled that relevant hearsay evidence is admissible in Board 

proceedings. Luten v. Office of Personnel Management, 110 M.S.P.R. 667, ¶ 12 

(2009); Borninkhof v. Department of Justice, 5 M.S.P.R. 77, 83 (1981). Our

reviewing court has held that hearsay evidence “may be accepted as preponderant 

evidence even without corroboration if, to a reasonable mind, the circumstances 

are such as to lend it credence.” Kewley v. Department of Health & Human 

Services, 153 F.3d 1357, 1364 (Fed. Cir. 1998). In Wisecup v. Office of 

Personnel Management, 30 M.S.P.R. 191, 193-94, aff’d, 809 F.2d 790 (Fed. Cir. 

1986) (Table), the Board found that, in the absence of significant rebuttal by an 

appellant, OPM’s records were sufficient to establish the existence and amount of 

an overpayment by preponderant evidence. In reaching this conclusion, the 

Board considered the fact that the appellant did not identify any specific

inaccuracies or discrepancies in OPM’s records, demonstrate that the records 

were not routinely made in the ordinary course of business, or demonstrate that 

the records were inherently unreliable, untrustworthy, or noncredible. Id. at 193. 
7

¶14 Here, applying Wisecup, the administrative judge concluded that OPM’s 

evidence, although hearsay, was sufficient to establish the existence and amount 

of the overpayment. 4

 ID at 14-16 & n.9. The administrative judge reviewed the 

records and verified OPM’s calculations. ID at 8-14. He further found that: 

(1) the records at issue were made in the ordinary course of OPM’s business as 

the administrator of the Federal retirement systems; (2) the records generally 

were accurate based on his review; and (3) the appellant failed to adduce any 

compelling contradictory evidence. ID at 15-16 & n.9. 

¶15 On review, the appellant also argues that, in evaluating the probative value 

of OPM’s records, the administrative judge failed to follow the U.S. Supreme 

Court’s decision in Richardson v. Perales, 402 U.S. 389 (1971). PFR File, Tab 1 

at 4-6. To the contrary, in Perales, which involved an appeal from a denial of 

Social Security disability benefits, the Supreme Court found that hearsay 

evidence alone may constitute substantial evidence. 402 U.S. at 402; see

Borninkhof, 5 M.S.P.R. at 84 (interpreting Perales as a rejection of any rule that 

hearsay may not per se constitute substantial evidence). To the extent that the 

appellant contends that the administrative judge was required to replicate the 

precise analysis that the Supreme Court used to evaluate the probative value of 

the medical reports in a Social Security disability benefits appeal, we disagree. 

PFR File, Tab 1 at 4-6. Instead, the Board reviews the probative value of 

hearsay evidence in Board appeals under the factors set forth in Borninkhof, 

5 M.S.P.R. at 87. Social Security Administration v. Long, 113 M.S.P.R. 190, ¶ 27 

 4 On review, the appellant contends that the administrative judge failed to rule on his 

objection to the administrative judge’s consideration of the agency file. PFR File, 

Tab 1 at 7. To the contrary, the administrative judge conducted a detailed analysis of 

the issue and the appellant’s arguments and concluded that OPM’s records were reliable 

and probative. ID at 14-16 & n.9. For this same reason, the appellant’s allegations that 

the administrative judge failed to explain his reasoning, as required by Spithaler v. 

Office of Personnel Management, 1 M.S.P.R. 587, 589 (1980), are without merit. PFR 

File, Tab 1 at 7, 23.
8

(2010), aff’d, 635 F.3d 526 (Fed. Cir. 2011). Here, we find that the 

administrative judge considered the Borninkhof factors relevant to analyzing 

OPM records in an overpayment appeal, as identified in Wisecup, and correctly 

concluded that OPM’s records were sufficient to establish the existence and 

amount of the overpayment. ID at 15-16 & n.9. 

The appellant has failed to demonstrate any error in the administrative 

judge’s finding that OPM proved that it correctly calculated the amount of 

the overpayment. 

¶16 On review, the appellant challenges the administrative judge’s finding that 

OPM proved that it correctly calculated the amount of the overpayment. 

PFR File, Tab 1 at 9, 13, 24. He contends that the administrative judge failed to 

consider his allegation at the hearing that there was some degree of variation in 

the amount of SSA disability benefits that he received each month. Id. at 9. 

¶17 We agree with the administrative judge that OPM properly reduced the 

appellant’s FERS annuity based on his entitlement to, rather than actual receipt 

of, SSA disability benefits.

5

 ID at 18; see 5 U.S.C. § 8452(a)(2)(A) (referencing 

a requirement for a reduction in an annuitant’s FERS disability annuity benefit 

for a month in which the appellant is “entitled both” to a FERS disability 

retirement annuity and SSA disability benefits); 5 C.F.R. § 844.302(b)(2), (c)(2) 

(referencing periods for which an annuitant is “entitled to” SSA disability 

benefits); see also Maxwell v. Office of Personnel Management, 78 M.S.P.R. 350, 

355 (1998) (finding that a delay in an appellant’s receipt of SSA disability 

 5 We have considered the appellant’s argument on review that the administrative 

judge’s finding was contrary to the decision by the U.S. Court of Appeals for the 

Federal Circuit in Stephenson v. Office of Personnel Management, 705 F.3d 1323 (Fed. 

Cir. 2013), and find it unpersuasive. PFR File, Tab 1 at 17-18. In Stephenson, the 

court held OPM could not reduce an appellant’s FERS disability benefits for a period 

during which he was not entitled to SSA disability benefits because he was working. 

705 F.3d at 1328-29. The court’s finding was based on an analysis of whether the 

appellant was entitled to SSA disability benefits under 5 U.S.C. § 423(a)(1), the 

applicable provision of the Social Security Act, not whether the appellant received such 

benefits. Stephenson, 705 F.3d at 1328-29.
9

benefits did not alter the fact that she was entitled to receive the benefits for 

purposes of calculating a reduction to her FERS annuity), overruled on other 

grounds by Conner v. Office of Personnel Management, 120 M.S.P.R. 670, ¶ 6

(2014). 

¶18 The appellant also contends that the administrative judge failed to consider 

that he paid $6,000.00 of his SSA disability benefits to the attorney who 

represented him in proceedings before the SSA. PFR File, Tab 1 at 13, 20, 24; 

see IAF, Tab 5 at 25. The appellant has cited no authority, and we can identify 

none, for the proposition that he is entitled to a reduction in repaying an

overpayment based upon his payment of attorney’s fees and costs in pursuing his

SSA disability benefits award. See 5 U.S.C. § 8452(a)(2)(A). As discussed 

above, the reduction in the appellant’s FERS disability retirement benefit is 

governed by his entitlement to SSA disability benefits, regardless of whether

some portion of those benefits were ultimately paid to his attorney. Therefore, 

the appellant has failed to demonstrate that the administrative judge erred in 

finding that OPM correctly calculated the overpayment without a reduction for 

attorney’s fees. ID at 10-21.

The administrative judge correctly found that the appellant failed to prove that he 

was entitled to a waiver of the overpayment.

¶19 An appellant has the burden of proving by substantial evidence that he is 

entitled to a waiver of an overpayment. Vojas, 115 M.S.P.R. 502, ¶ 18; 5 C.F.R. 

§ 845.307(b). A waiver of an annuity overpayment may be granted when the 

annuitant is without fault and recovery would be against equity and good 

conscience. Zucker v. Office of Personnel Management, 114 M.S.P.R. 288, ¶ 7 

(2010); 5 C.F.R. § 845.301. Here, it is undisputed that the appellant met his

obligation to inform OPM of the overpayment and that he was without fault.

ID at 22-23. However, on review, the appellant raises several challenges to the

administrative judge’s finding that he failed to demonstrate that recovery would 

be against equity and good conscience. PFR File, Tab 1 at 9-23; ID at 24-37. 
10

For the reasons discussed below, we find that the appellant’s arguments do not 

provide a basis for disturbing the initial decision. 

The administrative judge correctly found that the set-aside rule applies.

¶20 OPM policy provides that individuals who know or suspect that they are 

receiving overpayments are expected to set aside the amount overpaid pending 

recoupment, and that, in the absence of exceptional circumstances, recovery in 

these cases is not against equity and good conscience. Boone v. Office of 

Personnel Management, 119 M.S.P.R. 53, ¶ 6 (2012); Knox v. Office of Personnel 

Management, 107 M.S.P.R. 353, ¶ 8 (2007); IAF, Tab 5 at 70, Policy Guidelines 

on the Disposition of Overpayments under the Civil Service Retirement System 

and Federal Employees’ Retirement System, § I.C.4 (1995) (Policy Guidelines). 

¶21 On review, the appellant contests the administrative judge’s finding that the 

set‐aside rule applies. PFR File, Tab 1 at 9-14, 19-21. However, we agree with 

the administrative judge that OPM’s September 19, 2012 letter provided the

appellant with sufficient notice that he was required to set aside his SSA 

disability benefit payments to repay OPM for any overpayment of his FERS 

disability annuity. ID at 24-29. 

¶22 We have considered the appellant’s arguments on review that the

September 19, 2012 letter was poorly written, unclear, or confusing, and find 

them unpersuasive. PFR File, Tab 1 at 9-14, 19-21. In pertinent part, the letter 

notified the appellant that by law, OPM “is required to deduct all or part of Social 

Security disability benefits from the FERS disability benefit paid to a retiree.” 

IAF, Tab 5 at 15. The letter further stated:

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 the 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 your overpayment 

from OPM, so that you have sufficient funds to repay your duplicate 

payment. 
11

Id. We find that the letter clearly informed the appellant that he was required to

set aside his SSA disability benefits award to reimburse OPM for any FERS 

overpayment. 

¶23 On review, the appellant reiterates his argument, raised below, that the 

set-aside rule should not apply because his mental capacity was purportedly 

affected by his prescribed opiate when he received the September 2012 letter. 

PFR File, Tab 1 at 11; IAF, Tab 37 at 3-4; HCD (testimony of the appellant). 

The administrative judge found the appellant’s claims that he suffered from

mental incapacity in 2012 and 2013 were inapposite because the appellant was 

not awarded SSA disability insurance benefits until May 2014 and did not allege 

that he suffered from mental incapacity at that time. ID at 28-29. He further 

found that the appellant’s actions in repeatedly notifying OPM that he had been 

awarded SSA disability benefits, in accordance with the instructions in the 

September 2012 letter, reflected that he was aware, or at least strongly suspected, 

that he had received an overpayment. ID at 27-29. We discern no basis to 

disturb these well-reasoned findings. See Knox, 107 M.S.P.R. 353, ¶¶ 7-9 

(holding that an appellant was without fault in creating an overpayment but was 

not entitled to a waiver because she was aware that she should have set aside the 

overpayment). In sum, we find that the appellant’s arguments on review do not 

provide a basis for disturbing the administrative judge’s conclusion that the 

set-aside rule applies.

The administrative judge correctly found that the appellant failed to 

establish exceptional circumstances warranting waiver.

¶24 Because the set-aside rule applies, the appellant is not entitled to a waiver 

of the overpayment unless he can establish that exceptional circumstances exist. 

See Boone, 119 M.S.P.R. 53, ¶ 6. Exceptional circumstances may include, but 

are not limited to, cases in which: (1) there has been an exceptionally lengthy 

delay by OPM in adjusting an annuity; (2) OPM failed to respond within a 
12

reasonable length of time to an annuitant’s inquiries regarding an overpayment; 

(3) OPM failed to act expeditiously to adjust an annuity in the face of specific 

notice; or (4) OPM was otherwise grossly negligent in handling the case. King v. 

Office of Personnel Management, 114 M.S.P.R. 181, ¶ 20 (2010).

¶25 On review, the appellant reiterates his argument, raised below, that 

exceptional circumstances exist because OPM failed to adjust his FERS disability 

retirement annuity until 9 months after he notified OPM that he had been awarded 

SSA disability benefits, and OPM failed to respond to his repeated 

communications regarding his SSA disability benefits award during that same 

time period. PFR File, Tab 1 at 12, 14; IAF, Tab 18 at 7. The administrative 

judge found that, although OPM’s delays may have been vexing to the appellant, 

they did not meet the threshold for a finding of exceptional circumstances, where, 

as here, OPM issued the overpayment notice to the appellant 25 days after 

verifying his SSA disability benefits award with the SSA. ID at 31-32. We 

discern no error in this finding. See James v. Office of Personnel 

Management, 72 M.S.P.R. 211, 218-19 (1996) (finding that a delay of 

approximately 15 months between the date that an appellant notified OPM that he 

had been awarded SSA disability benefits and the date that OPM issued an 

overpayment notice did not constitute an exceptionally lengthy delay warranting 

waiver); Harris v. Office of Personnel Management, 43 M.S.P.R. 387, 390-91 

(finding that a 2‐year delay between the date that an appellant became eligible 

for SSA disability benefits and the date that OPM adjusted his Civil Service 

Retirement System annuity did not establish exceptional circumstances 

warranting waiver), aff’d, 907 F.2d 158 (Fed. Cir. 1990); Newcomb v. Office of 

Personnel Management, 42 M.S.P.R. 552, 558‐60 (1989) (finding that a delay of 

3 years and 10 months between an appellant’s request for a waiver and OPM’s 

final decision did not constitute exceptional circumstances rendering recovery 

unconscionable); see also IAF, Tab 5 at 70, Policy Guidelines, § I.C.4 (stating 
13

that exceptional circumstances would involve extremely egregious errors or 

delays by OPM, such as failure to issue a written decision within 4 years of a 

request for waiver).

¶26 The appellant also repeats his arguments that he is entitled to a waiver 

under a theory of detrimental reliance because: (1) the overpayment purportedly 

caused his tax burden to increase; and (2) he elected to retain an attorney to 

appeal the denial of his SSA benefits because he allegedly did not understand that 

his FERS disability benefits would be reduced. PFR File, Tab 1 at 18-20; IAF, 

Tab 2 at 5, Tab 18 at 9; HCD (testimony of the appellant). The administrative 

judge correctly found that the appellant failed to establish a claim of detrimental 

reliance because, although OPM’s actions may have ultimately put the appellant 

in a worse position, OPM did not mislead the appellant or induce him to change 

his position, where, as here, he was on notice of the potential overpayment and 

the set‐aside requirement. ID at 35-37; see Slater v. Office of Personnel 

Management, 42 M.S.P.R. 510, 520-21 (1989) (finding that an increase in an 

appellant’s tax burden because of an overpayment did not warrant waiver of the 

overpayment on the basis of detrimental reliance where there was no evidence 

that OPM misled the appellant, or induced him to change his position); see also

Freidman v. Office of Personnel Management, 153 F. App’x 719, 721 (Fed. Cir. 

2005) (finding that an appellant failed to establish that his payment of attorneys’

fees incurred in pursuing SSA disability benefits constituted exceptional 

circumstances warranting waiver).

6

 

¶27 We also have considered the appellant’s other arguments on review, 

including, but not limited to, his allegations of error, negligence, and delays by

OPM, PFR File, Tab 1 at 9-24, and find that none of them provide a basis for 

 6 Although Freidman is an unpublished decision, the Board may rely on unpublished 

Federal Circuit decisions where, as here, it finds the court’s reasoning persuasive. 

Mauldin v. U.S. Postal Service, 115 M.S.P.R. 513, ¶ 12 (2011).
14

disturbing the administrative judge’s conclusion that he failed to establish 

exceptional circumstances warranting waiver. 

The administrative judge correctly found that the appellant failed to prove that 

OPM violated his due process rights.

¶28 On review, the appellant challenges the administrative judge’s finding that 

he failed to prove his affirmative defense of a violation of due process. PFR File, 

Tab 1 at 21-22. He reiterates his assertions, raised below, that OPM violated his 

due process rights when: (1) OPM erroneously made collections on the 

overpayment while his reconsideration request and Board appeal were pending, in 

violation of 5 C.F.R. §§ 845.204(a)(9) and 845.205(d)(1); (2) OPM issued an 

overpayment notice that purportedly failed to provide all of the information 

required by 5 C.F.R. § 845.204(a); and (3) OPM failed to respond to his requests 

for documents and information that he submitted prior to the reconsideration 

decision. PFR File, Tab 1 at 16-17, 21-22; IAF, Tab 8 at 1, Tab 18 at 2-5, 

Tab 21 at 2, Tab 26 at 1-2, Tab 27 at 5, Tab 29 at 1, Tab 34 at 4-5. 

¶29 The administrative judge considered these allegations and found that the 

appellant failed to establish that OPM violated his due process rights. ID 

at 42-43 & n.21. He found that, after the appellant raised the issue of the 

premature collection of the overpayment, OPM remedied the error, relying on 

evidence that OPM either refunded or was in the process of refunding the 

amounts that it improperly collected. ID at 43 & n.11; IAF, Tab 5 at 5, 29-35, 

Tab 8 at 62-64, Tab 24 at 3, Tab 30 at 4-5. He further found that, because due 

process is a flexible concept and OPM’s collection of the overpayment did not 

constitute a permanent deprivation, the appellant failed to establish that the 

premature collection violated his due process rights. ID at 4; see Gajdos v. 

Department of the Army, 121 M.S.P.R. 361, ¶ 18 (2014) (finding that due process 

is “flexible and calls for such procedural protections as the particular situation 

demands” (quoting Mathews v. Eldridge, 424 U.S. 319, 334 (1976)). 
15

¶30 Regarding the appellant’s remaining contentions, the administrative judge

found that, because OPM generally stays overpayment collections while Board 

appeals are pending, the risk of an erroneous deprivation of property rights was 

low, given the availability of independent review by the Board prior to OPM’s 

final action. ID at 43; see Matthews, 424 U.S. at 335 (finding that due process 

requires consideration of the risk of an erroneous deprivation of a property

interest through the procedures used); see also Gajdos, 121 M.S.P.R. 361, ¶ 25 

(considering the availability of post‐deprivation relief before the Board in 

finding that an agency did not violate an appellant’s due process rights in 

effectuating his furlough). He further found that the appellant ultimately 

received the process required by OPM’s regulations, either directly from OPM or 

during the course of his Board appeal. ID at 43. For these reasons, he concluded 

that the appellant failed to establish that OPM violated his due process rights. ID 

at 43. 

¶31 On review, the appellant has not identified any factual or legal errors in the 

administrative judge’s analysis, but instead merely reiterates the actions that he 

contends constitute due process violations and disputes the administrative judge’s 

characterization of tangential matters. PFR File, Tab 1 at 16-17, 21-22. As 

such, the appellant’s contentions on review constitute mere disagreement with the 

administrative judge’s well‐reasoned finding that the appellant failed to prove 

that OPM violated his due process rights and do not provide a basis for disturbing 

the initial decision. 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 she 

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).
16

The administrative judge correctly found that the appellant failed to prove his 

affirmative defenses of harmful procedural error and that OPM’s decision was not 

in accordance with the law.

¶32 Below, the appellant relied on many of the same actions that he alleged 

constituted due process violations (OPM’s premature collection of the 

overpayment, purportedly deficient overpayment notice, and failure to respond to 

his request for documents and information) as the basis for his affirmative 

defenses of harmful procedural error and that OPM’s decision was not in 

accordance with the law. IAF, Tab 2 at 6-7, Tab 8 at 1-4, Tab 19 at 7-10, 

Tab 27 at 5. 

¶33 The administrative judge found that the appellant failed to prove harmful 

error because he failed to demonstrate that any of the alleged errors were likely to 

have caused OPM to reach a different conclusion. ID at 40-41; see Forte v. 

Department of the Navy, 123 M.S.P.R. 124, ¶ 9 (2016) (finding that, to show 

harmful error, an appellant must prove that any procedural error was likely to 

have caused the agency to reach a conclusion different from the one it would 

have reached in the absence or cure of the error); 5 C.F.R. § 1201.4(r) (defining 

harmful error). He found that the appellant failed to prove his not‐in‐accordance

‐with‐the‐law affirmative defense because the appellant failed to establish that 

there was no legal authority for OPM’s decision. ID at 40-41; see Stephen v. 

Department of the Air Force, 47 M.S.P.R. 672, 683-84 (1991) (in evaluating a 

not-in-accordance-with-the-law affirmative defense, the Board must determine 

whether the decision itself, in its entirety, was not in accordance with law) (citing

Handy v. U.S. Postal Service, 754 F.2d 335, 337-38 (Fed. Cir. 1985)). 

¶34 To the extent that the appellant intends to challenge these findings on 

review, PFR File, Tab 1 at 16-17, 21-22, we find that his contentions fail to 

provide a basis for disturbing the administrative judge’s well‐reasoned 

conclusions. See Crosby, 74 M.S.P.R. 98, 105–06; Broughton, 33 M.S.P.R. at

359 (1987).
17

The administrative judge did not abuse his discretion in his procedural rulings.

¶35 On review, the appellant argues that the administrative judge erred in 

accepting the agency’s closing statement despite a service error, and in denying 

the appellant’s requests to compel discovery and present an expert witness. 

PFR File, Tab 1 at 2, 4, 10, 23; IAF, Tab 32 at 2. 

¶36 Administrative judges have broad discretion to control proceedings, 

including ruling on discovery matters and excluding witnesses and evidence that 

are not relevant or material to the issues of the case. See Thomas v. U.S. Postal 

Service, 116 M.S.P.R. 453, ¶ 4 (2011) (finding that an administrative judge has 

broad discretion to exclude evidence and witnesses which have not been shown to 

be relevant or material); Wagner v. Environmental Protection 

Agency, 54 M.S.P.R. 447, 452 (1992) (finding that the Board will not reverse an 

administrative judge’s rulings on discovery matters absent an abuse of 

discretion), aff’d, 996 F.2d 1236 (Fed. Cir. 1993) (Table). For the following 

reasons, we find that the appellant failed to establish that the administrative judge 

abused his discretion here. 

¶37 Following the hearing, the administrative judge issued an order requiring 

that any written closing statements be received by the Board and the opposing 

party by October 29, 2015, and that rebuttals be received by November 5. IAF, 

Tab 32 at 2. The agency electronically filed its closing statement on October 27, 

2015, but did not ensure the appellant’s timely receipt. IAF, Tab 33 at 4, 11, Tab 

35 at 1, Tab 37 at 102. The appellant responded to the agency’s closing 

statement on November 5, IAF, Tab 37, and subsequently, both parties continued 

to file additional pleadings, IAF, Tabs 38-39. 

¶38 The administrative judge denied the appellant’s request that he decline to 

consider the agency’s closing statement, finding that, because both parties had 

failed to comply with the Board’s directives, he would accept all of their 
18

submissions into the record and consider them. 7 ID at 7 n.4. Absent an abuse of 

discretion, the Board will not reverse an administrative judge’s determination 

regarding sanctions. Leseman v. Department of the Army, 122 M.S.P.R. 139, ¶ 6 

(2015); Davis v. Department of Commerce, 120 M.S.P.R. 34, ¶ 18 (2013). We 

find that the appellant failed to establish that the administrative judge abused his 

discretion in declining to sanction the agency here. See Herring v. Department of 

Veterans Affairs, 72 M.S.P.R. 96, 99 (1996) (observing that the practice at the 

Board’s headquarters is to serve a copy of a pleading on the other parties when a 

party fails to comply with the Board’s regulations requiring such service); Panter 

v. Department of the Air Force, 22 M.S.P.R. 281, 282 (1984) (finding that an 

adjudicatory error that is not prejudicial to a party’s substantive rights provides 

no basis for reversal of an initial decision). 

¶39 The appellant also argues that the administrative judge improperly denied 

his request to call an expert witness to testify regarding his allegation that a 

July 31, 2012 letter in the agency file was forged or fraudulent. PFR File, Tab 1 

at 10, 23; see IAF, Tab 5 at 12-13, Tab 27 at 17-18. The administrative judge 

found that, because the appellant claimed that he had never received the letter, 

any disputes regarding its authenticity were not relevant to the issues before the 

Board. IAF, Tab 27 at 17. He declined to extrapolate from any alleged forgery 

or fraud that the remainder of OPM’s proof of the overpayment was unreliable. 

IAF, Tab 27 at 17-18; ID at 15. 

¶40 We discern no abuse of discretion in the administrative judge’s decision to 

deny the appellant’s request to call the expert witness to testify regarding the July 

 7 In addition to the issues described above, the appellant appears to have sent his 

written closing statement to the Board and the agency by facsimile on October 29, 

2015, but the agency contended that it did not receive the fax. IAF, Tab 34, Tab 36 

at 4, Tab 39 at 2. Also, when filing his closing statement, the appellant did not include 

a certificate of service, as required by the Board’s regulations. IAF, Tab 34; see

5 C.F.R. § 1201.26(b)(2) (providing that a certificate of service stating how and when 

service was made must accompany each pleading served by a party). 
19

31, 2012 letter. The administrative judge did not rely on the letter in his 

findings. ID at 8-48. We further agree with the administrative judge that the 

expert’s testimony regarding the letter would be insufficient to impugn the 

reliability of the remainder of OPM’s evidence. IAF, Tab 27 at 17-18; ID at 15; 

see Parsons v. United States, 670 F.2d 164, 166-67 (Ct. Cl. 1982) (observing that 

there is a presumption that public officials perform their duties in good faith); 

Thompson v. Office of Personnel Management, 81 M.S.P.R. 677, ¶¶ 6-8 (1999) 

(finding that an administrative judge’s failure to adjudicate an appellant’s claim 

that OPM discriminated against him in the calculation of his annuity was 

harmless error because the employee who calculated the annuity correctly did so 

pursuant to the applicable statute, a nondiscretionary function). Accordingly, the 

appellant has failed to establish that the administrative judge disallowed relevant 

testimony which could have affected the outcome of his appeal. Sanders v. 

Social Security Administration, 114 M.S.P.R. 487, ¶ 10 (2010) (finding that, to 

obtain reversal of an initial decision on the ground that the administrative judge 

abused his discretion in excluding evidence, the petitioning party must show on 

review that a relevant witness or evidence, which could have affected the 

outcome, was disallowed). 

¶41 The appellant also contends that the administrative judge improperly denied 

his motion to compel the agency to respond to discovery requests for copies of 

any complaints or disciplinary actions against K.J., the OPM employee who 

prepared the July 15, 2015 reconsideration decision, and K.J.’s performance 

evaluations. 8

 PFR File, Tab 1 at 4; IAF, Tab 19 at 1-2, Tab 25 at 1-3, Tab 27 

at 8-10. We find that the administrative judge did not abuse his discretion in 

denying the appellant’s motion to compel responses to the discovery requests at 

 8 The administrative judge’s order denying the motion to compel also addressed other 

discovery requests, but the appellant has not raised any specific challenge to the 

administrative judge’s findings regarding those requests on review, and therefore, we 

do not address them further. PFR File, Tab 1; IAF, Tab 27 at 8-14.
20

issue here. The appellant claimed below that the requested material would show

that OPM was careless in reaching its reconsideration decision. 9

 IAF, Tab 27 

at 9. The Board reviews OPM’s reconsideration decision on its merits, rather 

than on the background of the individual who prepared the decision, and,

therefore, we agree with the administrative judge that the appellant failed to 

demonstrate that the information sought was relevant to the issues in his appeal.10 

IAF, Tab 27 at 9-10; see 5 C.F.R. § 1201.72(a) (providing that discovery is the 

process, apart from the hearing, by which a party may obtain relevant 

information); see also Thompson, 81 M.S.P.R. 677, ¶¶ 6-8. 

The appellant has not shown that the administrative judge was biased. 

¶42 The appellant further asserts that the administrative judge was biased and 

favored the agency in his rulings. PFR File, Tab 1 at 2, 7, 10, 21, 23. In making 

a claim of bias or prejudice against an administrative judge, a party must 

overcome the presumption of honesty and integrity that accompanies 

administrative adjudicators. Oliver v. Department of 

Transportation, 1 M.S.P.R. 382, 386 (1980). We find nothing in the record 

indicating that the administrative judge demonstrated any form of bias, and the 

instances of alleged bias all pertain to the administrative judge’s rulings during 

the proceedings. PFR File, Tab 1 at 2, 7, 10, 21, 23. Generally, such allegations 

 9 For the first time on review, the appellant claims that the documents that he requested 

in discovery were relevant because they may have shown that K.J. was the person who 

created the allegedly fraudulent July 31, 2012 letter. PFR File, Tab 1 at 4. The Board 

generally will not consider an argument raised for the first time in a petition for review 

absent a showing that it is based on new and material evidence not previously available 

despite the party’s due diligence. Banks v. Department of the Air Force, 4 M.S.P.R. 

268, 271 (1980). The appellant has not made such a showing here. Moreover, even if 

we were to consider the appellant’s new argument, as discussed previously, the 

appellant also has failed to demonstrate that the authenticity of the letter is relevant to 

the dispositive issues in his appeal. 

10 On review, the appellant also appears to contend that he was denied the opportunity 

to cross‐examine K.J. at hearing. PFR File, Tab 1 at 3. However, the appellant did not 

request to call K.J. as a witness at the hearing, even though he was aware that the 

agency did not intend to call any witnesses. IAF, Tab 15 at 1, Tab 27 at 16-18.
21

may not form the basis of a finding of bias, and, here, we find they do not 

overcome the presumption of fairness and impartiality afforded to the 

administrative judge. See Vaughn v. Department of the Treasury, 119 M.S.P.R. 

605, ¶ 18 (2013) (finding that the Board will not infer bias based on an 

administrative judge’s case-related rulings). 

¶43 Finally, we have considered the appellant’s numerous other arguments and 

allegations of error on review and conclude that none of them form a basis for 

disturbing the initial decision. For this reason, and the reasons discussed above, 

we deny the appellant’s petition for review and affirm the initial decision. 

NOTICE TO THE APPELLANT REGARDING

YOUR FURTHER REVIEW RIGHTS

You have the right to request further review of this final decision. 

Discrimination Claims: Administrative Review

You may request review of this final decision on your discrimination 

claims by the Equal Employment Opportunity Commission (EEOC). See title 5 

of the United States Code, section 7702(b)(1) (5 U.S.C. § 7702(b)(1)). If you 

submit your request 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 your request 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, NE

Suite 5SW12G

Washington, D.C. 20507

You should send your request to EEOC no later than 30 calendar days after your 

receipt of this order. If you have a representative in this case, and your 

representative receives this order before you do, then you must file with EEOC no 
22

later than 30 calendar days after receipt by your representative. If you choose to 

file, be very careful to file on time.

Discrimination and Other Claims: Judicial Action

If you do not request EEOC to review this final decision on your 

discrimination claims, you may file a civil action against the agency on both your 

discrimination claims and your other claims in an appropriate U.S. district court. 

See 5 U.S.C. § 7703(b)(2). You must file your civil action with the district court 

no later than 30 calendar days after your receipt of this order. If you have a 

representative in this case, and your representative receives this order before you 

do, then you must file with the district court no later than 30 calendar days after 

receipt by your representative. If you choose to file, be very careful to file on 

time. 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 requirement of 

prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e-5(f) 

and 29 U.S.C. § 794a.

FOR THE BOARD:

Washington, D.C.

______________________________

Jennifer Everling

Acting Clerk of the Board