Decided: November 20, 1992; As Corrected November 20, 1992. .
Appeal from the Merit Systems Protection Board. Docket No. DA831M920105I1.
Before Mayer, Michel and Plager, Circuit Judges.
Ozine J. Hagan petitions for review of the March 19, 1992 initial decision of the Administrative Judge (AJ), Docket No. DA831M920105I1, affirming the decision of the Office of Personnel Management (OPM) finding that Mr. Hagan had been overpaid $8,042.88 from the Civil Service Retirement and Disability Fund (Fund), and denying Mr. Hagan's request for a waiver of the overpayment. The AJ's decision became final when Mr. Hagan failed to petition the Merit Systems Protection Board for review of that decision. Finding no error in the AJ's decision, we affirm.
Mr. Hagan was a civilian construction inspector for the U.S. Army Corps of Engineers. In 1983, he suffered a disability, and on July 18, 1985, he was removed from his position in the federal service. On or before July 29, 1985,*fn1 Mr. Hagan applied for a refund of his retirement contributions to the Fund, and on August 29, 1985, OPM authorized, and Mr. Hagan later received, a refund in the amount of $4,932.58.
On February 14, 1986, Mr. Hagan submitted an application to OPM for immediate disability retirement benefits, and on July 8, 1986, the OPM approved the application. Mr. Hagan then became eligible to receive immediate retirement benefits retroactive to July 20, 1985,*fn2 pursuant to the provisions of 5 U.S.C. § 8345(b)(2)(B) (1988). However, upon being notified that Mr. Hagan had been receiving workers' compensation benefits from the Office of Workers' Compensation Program (OWCP) of the United States Department of Labor since July 20, 1985, the OPM suspended payment of the retirement benefits because, under applicable law,*fn3 he was not entitled to receive disability retirement and workers' compensation benefits covering the same period of time. In a letter dated August 6, 1986, the OPM specifically notified Mr. Hagan of this occurrence and why.
On January 17, 1988, the OWCP terminated the payment of Mr. Hagan's workers' compensation benefits. At Mr. Hagan's request, the OPM, approximately two months later, began payment of the retirement benefits retroactive to January 17, 1988.
On May 10, 1988, however, the OWCP notified Mr. Hagan that he had the option of reinstating the payment of his workers' compensation benefits retroactive to January 17, 1988, and on June 20, 1988, advised him that, to exercise that option, he had to forgo the payment of retirement benefits covering the same period of time. On June 23, 1988, Mr. Hagan elected to exercise his option. On August 3, 1988, Mr. Hagan notified OPM in writing of his election, and OPM terminated the payment of Mr. Hagan's retirement benefits effective August 1, 1988. The net result of Mr. Hagan's retroactive election was that he received an overpayment of retirement benefits for the period of January 17, 1988 through July 31, 1988.
On September 14, 1988, OPM notified Mr. Hagan of the overpayment, which totaled $3,110.47. When Mr. Hagan, on October 9, 1988, requested a waiver of the $3,110.47 overpayment, the OPM suspended collection of it until Mr. Hagan exhausted his administrative remedies before the OPM and MSPB.
On February 25, 1991, OPM notified Mr. Hagan of its intent to collect the $3,110.47 overpayment. Moreover, OPM also notified Mr. Hagan of its intent to collect the refund of Mr. Hagan's retirement contributions. The OPM characterized the refund as an overpayment because, on July 8, 1986, when his application was approved, Mr. Hagan became eligible for retirement benefits retroactive to July 20, 1985, a date which is within thirty-one days of the date he filed the application for the refund, in contravention of 5 U.S.C. § 8342(a) (1988) [emphasis ours] which reads in relevant part as follows:*fn4
An employee or Member who --
(1)(A) is separated from the service for at least thirty-one consecutive days;
(2) files an application with the Office of Personnel Management for payment of ...