Bennie Richardson v. Office of Personnel Management

N OTE : This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
BENNIE RICHARDSON,
Petitioner
v.
OFFICE OF PERSONNEL MANAGEMENT,
Respondent
______________________
2024-1847
______________________
Petition for review of the Merit Systems Protection
Board in No. PH-0845-20-0281-I-1.
______________________
Decided: March 24, 2025
______________________
B ENNIE RAY R ICHARDSON, Moon Township, PA, pro se.
LAURA OFFENBACHER A RADI , Commercial Litigation
Branch, Civil Division, United States Department of Jus-
tice, Washington, DC, for respondent. Also represented by
B RIAN M. B OYNTON, WILLIAM JAMES GRIMALDI , PATRICIA M.
MC CARTHY.
______________________
Before DYK, C HEN, and STARK, Circuit Judges.
Case: 24-1847 Document: 28 Page: 1 Filed: 03/24/2025

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RICHARDSON v. OPM 2
P ER C URIAM .
Bennie Richardson petitions for judicial review of the
Merit System Protection Board’s (Board) final decision.
The Board affirmed the United States Office of Personnel
Management’s (OPM) reconsideration decision, which de-
termined that Mr. Richardson owed a net overpayment of
$11,036.76 from his Federal Employees’ Retirement Sys-
tem (FERS) disability annuity. SAppx. 6.1 For the reasons
explained below, we affirm.
B ACKGROUND
Mr. Richardson, formerly employed by the U.S. De-
partment of Housing and Urban Development, began re-
ceiving compensation from the Office of Workers’
Compensation Programs (OWCP) in 2002 due to a job-re-
lated injury. SAppx. 71–79. In 2007, he left his position
and subsequently applied for disability retirement under
FERS, citing in part his 2002 injuries. SAppx. 64–66.
OPM approved his application in November 2009,
SAppx. 61–63, and he began receiving annuity payments
effective December 19, 2009. SAppx. 67–70.
OPM’s approval letter informed Mr. Richardson that
his FERS annuity payments could not begin until he con-
firmed that he had applied for Social Security disability
benefits. SAppx. 61. OPM further advised that if awarded
such benefits, he was required to notify OPM, as his annu-
ity payments would be subject to offset by any benefits.
SAppx. 62; see 5 U.S.C. § 8452.
Mr. Richardson became entitled to receive Social Secu-
rity disability benefits effective December 1, 2008.
SAppx. 46. By 2012, OPM determined that he had been
overpaid $19,314.80 due to the required offset between his
1 “SAppx” refers to the supplemental appendix ac-
companying the government’s informal response brief.
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RICHARDSON v. OPM 3
FERS disability annuity and Social Security disability ben-
efits. SAppx. 59–60; see 5 U.S.C. § 8452(a)(2)(B)(i)(I).2
OPM explained that it would recover the overpayment
through monthly deductions from his FERS annuity.
SAppx. 59.
In 2016, Mr. Richardson disputed the debt, asserting
in a letter to OPM that he had already repaid the United
States Social Security Administration (SSA) $20,000 and
did not owe OPM an additional $20,000. SAppx. 80. He
also mistakenly believed OPM was collecting on behalf of
OWCP. Id. In response, OPM clarified that the debt was
related to FERS overpayments, not the SSA or OWCP.
SAppx. 58. OPM later amended its response, explaining
that it is charged with the administration of FERS under
the applicable provisions of 5 U.S.C. § 8452, which require
in part that annuities be reduced based on Social Security
disability benefits. SAppx. 55–56.
Further review in 2017 revealed an error in the calcu-
lation of Mr. Richardson’s Social Security disability bene-
fit, requiring OPM to adjust his annuity and recalculate
the overpayment. SAppx. 49–50. As a result, OPM deter-
mined he had been overpaid $22,690.40 but credited prior
repayments, leaving a remaining balance of $11,036.76.
Id. Mr. Richardson requested reconsideration and waiver
2 5 U.S.C. § 8452(a)(2)(B)(i)(I) provides that “the as-
sumed disability insurance benefit of an annuitant for any
month shall be equal to[] the amount of the disability in-
surance benefit to which the annuitant is entitled under
section 223 of the Social Security Act for the month in
which the annuity under this subchapter commences.”
Mr. Richardson does not dispute that that he began receiv-
ing Social Security disability benefits in December 2008 or
that he continued receiving them after his FERS annuity
payments began in December 2009.
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RICHARDSON v. OPM 4
of the debt, but in February 2020, OPM upheld its decision,
explaining how the agency calculated the overpayment and
reaffirming that the overpayment must be recovered in ac-
cordance with § 8452. SAppx. 44–47.
In May 2020, Mr. Richardson appealed OPM’s decision
to the Board. In his appeal, he raised a new argument that
the amount he owes to OPM conflicted with a separate debt
he allegedly owed under the Treasury Offset Program
(TOP).3 SAppx. 36. In an initial decision, the administra-
tive judge was not persuaded, and affirmed OPM’s recon-
sideration decision. Richardson v. OPM, No. PH-0845-20-
0281-I-1, 2021 WL 2414255 (M.S.P.B. June 9, 2021) (Deci-
sion).4 Mr. Richardson filed a petition for review with the
full Board, which was denied in May 2024, thereby making
the administrative judge’s initial decision the final decision
of the Board. SAppx. 25.
Mr. Richardson now petitions this court for review. We
have jurisdiction under 28 U.S.C. § 1295(a)(9).
DISCUSSION
Our review of Board decisions is limited. We must af-
firm the Board’s decision unless we find that it is “(1) arbi-
trary, capricious, an abuse of discretion, or otherwise not
in accordance with law; (2) obtained without procedures re-
quired by law, rule, or regulation having been followed; or
3 The TOP, administered by the United States De-
partment of the Treasury’s (Treasury) Bureau of the Fiscal
Service, is a centralized system that collects delinquent
debts owed to federal agencies. See 31 U.S.C. § 3716; 31
C.F.R. § 285.5. Through administrative offset, TOP with-
holds federal payments (such as tax refunds) to satisfy out-
standing debts.
4 Because the electronic version of the decision lacks
page designations, we employ the SAppx pagination used
in the decision at SAppx. 6–22.
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RICHARDSON v. OPM 5
(3) unsupported by substantial evidence.” 5 U.S.C.
§ 7703(c).
Substantial evidence supports the Board’s decision af-
firming OPM’s calculation of a net overpayment of
$11,036.76. Mr. Richardson does not expressly challenge
OPM’s calculations. Rather, he implies that SSA has al-
ready collected the debt, arguing that TOP “authorizes the
SSA to collect debt on behalf of OPM.” Pet’r’s Informal
Br. 10. The Board correctly rejected this argument, finding
no evidence that SSA collected debt on OPM’s behalf. See
Decision at 10–11. On review, Mr. Richardson does not cite
any evidence or explain how the Board erred in finding no
such evidence. Furthermore, the Board noted a few “fun-
damental reasons” that TOP does not apply to Mr. Richard-
son’s debt. Id. at 12. For example, OPM never certified the
debt to Treasury or SSA for collection, see 31 U.S.C.
§ 3716(c); 31 C.F.R. § 285.5(b), and there was never any de-
linquent debt to collect under TOP, see 31 U.S.C.
§ 3716(c)(6)(A); 31 C.F.R. § 285.5(a)(1).
Mr. Richardson also argues that the Board “failed to
apply the relevant statutes and legal precedents,” citing,
for example, 5 U.S.C. § 8452, Leighton v. OPM, 529 F.3d
1071 (Fed. Cir. 2008) (per curiam), and 31 C.F.R. § 285.5.
Pet’r’s Informal Br. 12, 15. We disagree. The Board cited
and reproduced 5 U.S.C. § 8452, which governs FERS dis-
ability annuity calculations, and correctly applied Leighton
in sustaining OPM’s 2017 recalculation of Mr. Richard-
son’s overpayment, which was “based upon the full amount
of SSA benefits to which [he] was entitled.” 529 F.3d
at 1076; see Decision at 8–9, 12; SAppx. 49–50. Although
the Board did not expressly cite 31 C.F.R. § 285.5, which
concerns the TOP requirement of certifying debts, the
Board did cite 31 U.S.C. § 3716(c) when noting that OPM
never certified the debt to Treasury or SSA for collection.
Decision at 12. See 31 C.F.R. § 285.5(b) (“Centralized offset
means the offset of Federal payments through the Treas-
ury Offset Program to collect debts which creditor agencies
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RICHARDSON v. OPM 6
have certified pursuant to 31 U.S.C. 3716(c), 3720A(a) and
applicable regulations.”).
Finally, Mr. Richardson argues that his due process
rights were violated because the Board failed to address his
“objections regarding witness removal.” Pet’r’s Informal
Br. 11. To the extent that “witness removal” refers to
Mr. Richardson’s denied request for additional witnesses
at the hearing, the Board determined that Mr. Richardson
failed to object to the administrative judge’s ruling on wit-
nesses and was therefore “precluded from raising this issue
on review.” SAppx. 24 n.2. This decision was not a viola-
tion of due process, and Mr. Richardson has not demon-
strated that the administrative judge abused his
discretion. See Rizzo v. Soc. Sec. Admin., 25 F. App’x 978,
982 (Fed. Cir. 2001) (per curiam) (“Determinations con-
cerning whether to allow the presentation of a witness at a
Board hearing are soundly within the discretion of the [ad-
ministrative judge].”) (citing Davis v. OPM., 918 F.2d 944,
946 (Fed. Cir. 1990)).
C ONCLUSION
We have considered Mr. Richardson’s remaining argu-
ments and find them unpersuasive. Accordingly, we affirm
the Board’s final decision.
AFFIRMED
C OSTS
No costs.
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