Peter Shafman v. Office of Personnel Management

UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD

PETER BRUCE SHAFMAN, DOCKET NUMBER

Appellant, PH-0845-25-0020-I-1 v.

OFFICE OF PERSONNEL DATE: August 25, 2026 MANAGEMENT,

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1 Peter Bruce Shafman , Cranston, Rhode Island, pro se.

Eva Ukkola , Kevin D. Alexander, Sr. , and Carla Robinson , Washington, D.C., for the agency.

BEFORE James J. Woodruff II, Chairman Henry J. Kerner, Vice Chairman FINAL ORDER

The appellant has filed a petition for review of the initial decision, in which the administrative judge found that the Office of Personnel Management (OPM) proved the existence and amount of its overpayment to the appellant and that he was not entitled to waiver of recovery of the overpayment. The administrative judge also reduced the appellant’s monthly repayment amount from $162.26 to $90.00 due to financial hardship. On petition for review, the appellant restates his confusion about how the overpayment occurred and his argument that his increased expenses make the repayment amount unreasonable. The appellant also submits a new chart detailing his updated expenses and income to reflect his current financial situation. 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).

To the extent that the appellant argues that the administrative judge erred by canceling the hearing below as a sanction for his failure to participate in his appeal, we discern no error. Petition for Review (PFR) File, Tab 1 at 1. An administrative judge may impose sanctions on a party as necessary to serve the ends of justice. 5 C.F.R. § 1201.43. That authority includes the right to sanction a party for failure to comply with an order and to cancel a hearing. Id.; see Heckman v. Department of the Interior, 106 M.S.P.R. 210, ¶ 8 (2007). An appellant’s right to a hearing, however, should not be denied as a sanction absent extraordinary circumstances. Heckman, 106 M.S.P.R. 210, ¶ 8. 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).

Here, the administrative judge canceled the hearing after the appellant failed to appear for two status conferences and failed to file prehearing submissions. Initial Appeal File (IAF), Tabs 7-8. Given the appellant’s failure to comply with these orders or take any action after filing his initial appeal roughly 3 months earlier, it was appropriate for the administrative judge to issue an order canceling the hearing. Heckman, 106 M.S.P.R. 210, ¶ 9 (finding that it was appropriate for an administrative judge to cancel the appellant’s requested hearing when the appellant failed to comply with three orders and took no action in his appeal for more than 2 months).

On review, the appellant argues that he would have attended a hearing if he knew that he could. PFR File, Tab 1 at 1. However, the appellant does not otherwise provide any explanation for his failure to comply with the administrative judge’s orders. As a registered e-filer with the Board’s e-Appeal system, the appellant agreed to accept documents through electronic service and was required to monitor his case activity on e-Appeal to ensure that he received all case-related documents. 2 Rivera v. Social Security Administration, 111 M.S.P.R. 581, ¶ 5 (2009); 5 C.F.R. § 1201.14(e), (i)(3). Because the administrative judge’s orders were sent to the appellant’s email address associated with his e-filer account, he was deemed to have received them. 3 See IAF, Tab 6 at 2, Tab 7 at 5, Tab 8 at 3. Accordingly, to the extent that the appellant argues that he had no notice of the administrative judge’s orders regarding the status conferences or the canceled hearing, we disagree.

We also decline to disturb the administrative judge’s remaining findings on review. The administrative judge properly found that OPM proved the existence and amount of its overpayment to the appellant. IAF, Tab 9, Initial Decision (ID) at 2. The overpayment was first created because the appellant’s monthly annuity payments were not reduced to take into account his Social Security Administration Disability Insurance Benefits (SSADIB), and it was further increased because of a miscalculation of the appellant’s average salary used in calculating his annuity. 4 IAF, Tab 4 at 5-6, 37, 67-68, 75. We therefore agree with the administrative judge that OPM proved the existence of a $33,796.80 overpayment to the appellant.

We also agree with the administrative judge that the appellant was not entitled to waiver of the overpayment due to financial hardship because he was aware of his obligation to set aside a portion of his SSADIB. ID at 2-3; see James v. Office of Personnel Management, 72 M.S.P.R. 211, 217 (1996). Finally, the administrative judge properly reduced the amount of the appellant’s monthly repayment from $162.26 to $90.00. ID at 3; see Knox v. Office of Personnel Management, 107 M.S.P.R. 353, ¶ 10 (2007) (finding that an overpaid annuitant who was aware of the set-aside requirement may have his repayment schedule adjusted if, based on his income and expenses, his compliance with OPM’s repayment schedule would cause financial hardship). Here, we agree with the administrative judge that the appellant demonstrated that compliance with OPM ’s $162.26 monthly repayment schedule would cause him financial hardship and that $90.00 per month was reasonable. 5 ID at 3. Accordingly, the appellant has not provided a basis for reversal of the administrative judge’s findings, and we affirm the initial decision.

NOTICE OF APPEAL RIGHTS 6

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:

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 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 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. 7 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 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.