Scott M. Burton v. Office of Personnel Management

N OTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
SCOTT M. BURTON,
Petitioner
v.
OFFICE OF PERSONNEL MANAGEMENT,
Respondent
______________________
2015-3222
______________________
Petition for review of the Merit Systems Protection
Board in No. CH-0841-14-0691-I-1.
______________________
Decided: January 11, 2016
______________________
S COTT M. BURTON, Westerville, OH, pro se.
ROBERT C. B IGLER, Commercial Litigation Branch,
Civil Division, United States Department of Justice,
Washington, DC, for respondent. Also represented by
BENJAMIN C. MIZER, ROBERT E. K IRSCHMAN, J R., CLAUDIA
BURKE.
______________________
Before N EWMAN, L OURIE, and BRYSON, Circuit Judges.

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BURTON v. O FFICE OF PERS. M GMT. 2
P ER CURIAM .
D ECISION
Scott M. Burton petitions for review of the decision of
the Merit Systems Protection Board affirming the denial
of his application for disability annuity payments between
2012 and 2014. We affirm the Board’s decision.
BACKGROUND
In 2004, Mr. Burton retired on disability from his po-
sition as a letter carrier for the U.S. Postal Service. At
that time, he began receiving a disability retirement
annuity under the Federal Employees Retirement System
(“FERS”). He was also receiving social security disability
benefits. Those benefits resulted in a setoff from his
FERS annuity. Both the disability benefits and the
annuity payments were subject to earnings limitations.
By statute, if Mr. Burton’s income exceeded a threshold
amount for social security disability benefits or the FERS
annuity, his payments under the respective system would
be suspended.
In 2010 the Social Security Administration suspended
Mr. Burton’s social security disability payments because
his income exceeded the earnings limitation for social
security. Despite the suspension of his social security
disability benefits, the Office of Personnel Management
(“OPM”) continued to reduce Mr. Burton’s FERS disability
annuity as if his social security disability benefits were
still being paid. The setoff resulted in a loss of $629 per
month to Mr. Burton. OPM did not correct the error until
2014.
From 2011 through part of 2013, Mr. Burton earned
additional income. He contends that he was compelled to
earn that additional income in order to replace the loss
resulting from the erroneous setoff that reduced his
annuity payments. Beginning in 2011, Mr. Burton’s
additional income placed him above the earnings limita-

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BURTON v. O FFICE OF PERS. M GMT. 3
tion for the FERS disability annuity. As directed by
statute, Mr. Burton’s disability annuity payments were
supposed to continue for 180 days past the end of the year
in which the threshold was exceeded and then should
have stopped. 5 U.S.C. § 8455(a)(2). In Mr. Burton’s case,
the 180-day period would have expired on June 30, 2012.
However, for reasons that are unclear, OPM continued to
make disability annuity payments to Mr. Burton until
August 1, 2013. OPM has waived its right to recover the
overpayments for that 13-month period.
Mr. Burton sought to have his FERS annuity rein-
stated beginning on January 1, 2014, but his request was
denied because his 2013 income continued to exceed the
earnings threshold for disability annuity payments. OPM
subsequently granted Mr. Burton’s request for reinstate-
ment of his disability annuity as of January 1, 2015,
because his 2014 income was below the earnings thresh-
old.
In September 2014 OPM corrected the setoff error and
paid Mr. Burton $13,279 for the incorrectly withheld
setoff between November 1, 2010, and June 30, 2012.
OPM did not award Mr. Burton additional payments for
July 2012 through August 2013, because it determined
that Mr. Burton should not have received any benefits for
that 13-month period.
Mr. Burton has appealed OPM’s decision not to pay
him disability annuity benefits between July 1, 2012, and
December 31, 2014. He contends that he should receive
the full amount of the FERS disability annuity for the
years that his income exceeded the statutory threshold
amount (i.e., between 2011 and 2013). His argument is
that if OPM had correctly terminated the social security
disability payment setoff after those payments were
suspended, his disability annuity would not have been
reduced and he would not have been compelled to earn

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BURTON v. O FFICE OF PERS. M GMT. 4
the additional income that caused his annuity to be
terminated.
On Mr. Burton’s appeal to the Merit Systems Protec-
tion Board, the administrative judge who was assigned to
Mr. Burton’s case ruled that he was not entitled to annui-
ty payments during the period that his earnings exceeded
the statutory threshold amount. The full Board denied
Mr. Burton’s petition for review and affirmed the admin-
istrative judge’s ruling. Mr. Burton now appeals to this
court.
D ISCUSSION
The income limitations for a disability retirement an-
nuity are governed by 5 U.S.C. § 8455 and are not discre-
tionary. It is undisputed that Mr. Burton’s income
exceeded the statutory threshold from 2011 to 2013. For
example, in 2013 the threshold for Mr. Burton was
$44,418.40, which is 80% of the salary for the permanent
position from which he retired. In 2013, Mr. Burton
earned $47,910, or $3,491.60 more than the statutory
threshold. Mr. Burton points to no authority giving him a
right to annuity payments notwithstanding the fact that
he earned more than the statutory threshold amount set
forth in 5 U.S.C. § 8455(a)(2). This court has consistently
held that section 8455 does not provide for exceptions or
waivers in its application. See, e.g., Daniel v. Office of
Pers. Mgmt., 469 F. App’x 850 (Fed. Cir. 2011); Rodriguez
v. Office of Pers. Mgmt., 427 F. App’x 878 (Fed. Cir. 2011);
Daniel v. Office of Pers. Mgmt., 245 F. App’x 969 (Fed. Cir.
2007).
Section 8455 required the termination of Mr. Burton’s
annuity once his income exceeded the threshold amount.
OPM is not empowered to disregard such statutory direc-
tives for calculating disability annuity payments. See
Office of Pers. Mgmt. v. Richmond, 496 U.S. 414, 430
(1990) (“[I]t would be most anomalous for a judicial order
to require a Government official, such as the officers of

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BURTON v. O FFICE OF PERS. M GMT. 5
OPM, to make an extrastatutory payment of federal
funds.”). The prohibition against making unauthorized
disability payments contrasts with the authorization
granted in other statutes, such as 5 U.S.C. § 8470(b),
which provides that OPM will not seek recovery of over-
payments from an individual when, in the agency’s judg-
ment, the individual “is without fault and recovery would
be against equity and good conscience.”
Although Mr. Burton argues that he would not have
been compelled to earn more than the statutory threshold
amount if OPM had not improperly continued to reduce
his disability annuity after his social security benefits had
been terminated, that argument provides no ground for
overriding the statutory prohibition on disability benefits
to persons who earn more than the statutory threshold
amount. Because Mr. Burton was not entitled to payment
of a disability annuity during the period that his earnings
exceeded the statutory earnings limitation, the Board
correctly denied his request for a monetary award.1
No costs.
AFFIRMED
1 Before the Board, Mr. Burton also sought rein-
statement of his Federal Employees’ Group Life Insurance
(“FEGLI”) policy. Pursuant to statute, OPM ceased
making premium payments on that policy when Mr.
Burton’s disability annuity payments ceased. The admin-
istrative judge ruled that the Board lacked jurisdiction
over Mr. Burton’s FEGLI claim. Mr. Burton did not
challenge the administrative judge’s jurisdictional ruling
before the full Board, nor does it appear that he has
sought review of that decision in this court. In any event,
we agree with the administrative judge that, with certain
exceptions not applicable here, the Board does not have
jurisdiction over FEGLI claims. See 5 U.S.C. § 8715.

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