Mathews et al v. Ohio Public Employees Retirement System
Filing
44
OPINION AND ORDER. Plaintiff's Motion for Judgment on the Pleadings, ECF 26 , is DENIED to the extent that the motion seeks summary judgment on plaintiff's claims. Defendant's Motion for Summary Judgment, ECF 32 , is GRANTED. Defenda nt is granted judgment on plaintiff's claims and on its counterclaim. The Court AWARDS defendant $106,672.54 pursuant to O.R.C. § 145.563 for the overpayment of disability benefits paid to plaintiff between January 2010 and April 2012, and may collect that amount in accordance with the procedures established in O.R.C. § 145.563(B). Signed by Magistrate Judge Norah McCann King on 3/12/2015. (pes1)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
RICHARD MATHEWS, et al.,
Plaintiffs,
vs.
Civil Action 2:12-cv-1033
Magistrate Judge King
OHIO PUBLIC EMPLOYEES RETIREMENT
SYSTEM,
Defendant.
OPINION AND ORDER
This action arises out of the termination of the disability
retirement benefits of plaintiff Richard Mathews.
This matter is
before the Court, with the consent of the parties pursuant to 28
U.S.C. § 636(c), for consideration of two motions.
Plaintiff1 filed a
motion for judgment on the pleadings on February 27, 2014.
Judgment on the Pleadings (“Plaintiff’s Motion”), ECF 26.
Motion for
Defendant
Ohio Public Employees Retirement System (“OPERS” or defendant) opposed
that motion and also moved for summary judgment.
ECF 32.
Defendant’s Motion,
Plaintiff filed a joint response to Defendant’s Motion and a
renewed request for judgment on the pleadings, Plaintiff’s Response,
ECF 36, and defendant filed a reply, Defendant’s Reply, ECF 37.
Because the parties relied on evidence outside the pleadings in
briefing Plaintiff’s Motion, the Court advised the parties that
Plaintiff’s Motion would be treated as a motion for summary judgment
and ordered the parties to supplement their briefing.
1
Opinion and
Plaintiff Richard Mathews and his wife, Sandra Mathews, filed this action
on November 8, 2012, asserting eight claims based on the termination of
plaintiff Richard Mathews’ disability retirement benefits. Complaint, ECF 2.
Upon defendant’s motion, ECF 4, Mrs. Mathews’ claims were dismissed. Opinion
and Order, ECF 14. Unless otherwise specified, all references to “plaintiff”
are to Richard Mathews.
Order, ECF 38.
The parties have supplemented their briefing.
Plaintiff’s Supplemental Brief, ECF 41; Defendant’s Supplemental
Brief, ECF 42.
I.
This matter is now ripe for consideration.
Background
The facts of this case are not in dispute.
Plaintiff served as a
police officer from 1969 until 1996, when he suffered a debilitating
medical condition.
Amended Complaint, ECF 23, ¶¶ 9-10.
Plaintiff is
a member of OPERS and began receiving disability benefits from OPERS
on April 1, 1997.
Ohio Public Employees Retirement System’s Answer to
the Amended Complaint and Counterclaim (“Amended Answer”), ECF 39, ¶¶
2, 13.
Between 2000 and 2003, plaintiff reported to OPERS on several
occasions that he was employed on a part-time or full-time basis, and
OPERS continued to pay disability benefits.
Amended Complaint, ¶¶ 16-
18; Amended Answer, ¶¶ 16-18; PAGEID 681-87, 733-37, 745-47, 750-52.
In March 2001, plaintiff sought guidance from defendant about whether
he could hold a public office and still receive OPERS disability
benefits.
Administrative Record, ECF 31, PAGEID 676.
In a letter
dated March 27, 2001, defendant responded as follows: “If a disability
retirant should return to public service with a department, which is
covered under the Public Employees Retirement System, we are required
to suspend the disability benefits.
A disability retiree may not be
employed in any capacity for a PERS reporting employer.”
PAGEID 675.
Id. at
The letter also states that plaintiff might, under
certain circumstances, be employed by a private employer without
jeopardizing his OPERS disability benefits.
2
Id.
However, plaintiff
avers that he never received this letter.
Affidavit of Richard
Mathews, ECF 36-3, ¶¶ 5-7.
In November 2009, plaintiff was elected to serve as a Council
Person for the Village Council in the Village of New Richmond, Ohio,
for the term January 2010 to December 2013.
Amended Answer, ¶ 20.
Amended Complaint, ¶ 20;
Plaintiff alleges that, prior to embarking on
service in this position, he conferred with the Village Administrator
for the Village of New Richmond “and was assured that [he] could pay
into Social Security, according to applicable R.C. § 144.05, as an
elected official and would not be required to contribute to OPERS.”
Amended Complaint, ¶ 21.
Plaintiff does not argue that the Village
Administrator for the Village of New Richmond is an agent of OPERS,
and he does not contest defendant’s representation that the Village
Administrator is not an agent of OPERS.
PAGEID 793-95.
January 1, 2010.
See Defendant’s Motion,
Plaintiff assumed office as a Council Person on
Affidavit of Richard Mathews, ¶ 11.
In March 2011 and March 2012, plaintiff filed an annual report of
earnings with OPERS showing his earned income as an elected official
for the Village of New Richmond.
Amended Complaint, ¶¶ 23-24; Amended
Answer, ¶¶ 23-24; Administrative Record, PAGEID 413-16.
On March 20,
2012, OPERS notified plaintiff by telephone that his disability
benefits would be terminated effective April 30, 2012, because of his
election to and service for the New Richmond Village Council.
Amended
Complaint, ¶ 26; Amended Answer, ¶ 26; Administrative Record, PAGEID
272-73; Affidavit of Richard Mathews, ¶ 15.
An OPERS representative
spoke with plaintiff or plaintiff’s counsel on the telephone at least
3
six times between March 21 and April 30, 2012, regarding the
termination of plaintiff’s disability benefits.
Affidavit of Jeremy
Polley, ECF 32-2, ¶ 9; Affidavit of Allen Foster, ECF 32-1, ¶¶ 3, 9,
Exhibits A, G.
However, plaintiff did not receive written notice that
his disability benefits would be terminated, Affidavit of Richard
Mathews, ¶ 16, and he did not receive written notice regarding the
availability of any procedure to appeal the termination of his
disability benefits.
Amended Answer, ¶ 37.
Defendant “admits that it
never provided Richard Mathews a formal opportunity to appeal the
termination of his disability benefits.”
Id. at ¶ 32.
Plaintiff applied for traditional pension plan retirement
benefits on April 2, 2012.
Administrative Record, PAGEID 369-65.
Plaintiff’s disability benefits were terminated on April 30, 2012,
Amended Answer, ¶ 2, and his traditional age and service retirement
benefits became effective May 1, 2012.2
Amended Complaint, ¶ 27;
Affidavit of Jeremy Polley, ¶¶ 7-8.
II.
Standard
The standard for summary judgment is well established.
This
standard is found in Rule 56 of the Federal Rules of Civil Procedure,
which provides in pertinent part: “The court shall grant summary
2
The transition from disability benefits to age and service retirement
benefits had significant consequences. Plaintiff elected to contribute to
Social Security, rather than to OPERS, in January 2010 when he began work as
a Council Person for the Village of New Richmond. Amended Complaint, ¶ 31.
Had plaintiff contributed to OPERS, he would likely have been entitled, after
two (2) years, to full service credit for the period during which he received
disability benefits. See Defendant’s Motion, PAGEID 794-95. A March 2012
projection of plaintiff’s retirement benefits estimated that plaintiff would
be entitled to a monthly retirement benefit of §3,088.99 had he received that
service credit and to $1,640.22 had he not. See Affidavit of Allen Foster,
¶¶ 6-7, 26, Exhibits E, D, X. Plaintiff did not receive the service credit.
Moreover, plaintiff must now pay for health insurance for himself and his
wife. Plaintiff’s Response, p. 28.
4
judgment if the movant shows that there is no genuine dispute as to
any material fact and the movant is entitled to judgment as a matter
of law.”
Fed. R. Civ. P. 56(a).
Pursuant to Rule 56(a), summary
judgment is appropriate if “there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter of
law.”
Id.
In making this determination, the evidence “must be viewed
in the light most favorable” to the non-moving party.
Kress & Co., 398 U.S. 144, 157 (1970).
Adickes v. S.H.
Summary judgment will not lie
if the dispute about a material fact is genuine, “that is, if the
evidence is such that a reasonable jury could return a verdict for the
non-moving party.”
(1986).
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
However, summary judgment is appropriate if the opposing
party “fails to make a showing sufficient to establish the existence
of an element essential to that party’s case, and on which that party
will bear the burden of proof at trial.”
477 U.S. 317, 322 (1986).
Celotex Corp. v. Catrett,
The “mere existence of a scintilla of
evidence in support of the [opposing party’s] position will be
insufficient; there must be evidence on which the jury could
reasonably find for the [opposing party].”
Anderson, 477 U.S. at 252.
The “party seeking summary judgment always bears the initial
responsibility of informing the district court of the basis for its
motion, and identifying those portions” of the record which
demonstrate “the absence of a genuine issue of material fact.”
Celotex Corp., 477 U.S. at 323.
The burden then shifts to the
nonmoving party who “must set forth specific facts showing that there
is a genuine issue for trial.”
Anderson, 477 U.S. at 250 (quoting
5
Fed. R. Civ. P. 56(e)).
“Once the moving party has proved that no
material facts exist, the non-moving party must do more than raise a
metaphysical or conjectural doubt about issues requiring resolution at
trial.”
Agristor Fin. Corp. v. Van Sickle, 967 F.2d 233, 236 (6th
Cir. 1992) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 586 (1986)).
III. Discussion
The Amended Complaint asserts procedural due process claims under
the Fourteenth Amendment to the United States Constitution and alleges
that O.R.C. § 145.362 is unconstitutional on its face and as applied.
Count II of the Amended Complaint alleges that plaintiff received
inadequate notice that his disability benefits would be terminated and
that “[t]here was a complete absence of written notice to Plaintiff[]
of any procedure available to appeal Defendant’s termination of
Plaintiff[’s] disability retirement and other benefits.”
Complaint, ¶ 42.
Amended
Defendant’s alleged failure to provide written
notice and opportunity to be heard “caus[ed] damage to Plaintiff[] in
the form of the loss of Plaintiffs [sic] disability retirement and
other benefits from May 2012, forward.”
Id. at ¶ 43.
Count IX of the
Amended Complaint alleges that O.R.C. § 145.362 is unconstitutional on
its face because it provides for the termination of disability
benefits when a “disability recipient is restored to service by, or
elected to an elective office with, an employer covered by [OPERS]”
without “adequate notice and opportunity to be heard before the
recipient’s disability benefit shall cease.”
(emphasis and internal quotations omitted).
6
Amended Complaint, ¶ 71
Plaintiff alleges that
the lack of process afforded in O.R.C. § 145.362 has caused “the loss
of full retirement benefits and other benefits from May 2012,
forward.”
Amended Complaint, ¶ 73.
Plaintiff seeks an order
declaring O.R.C. § 145.362 unconstitutional on its face and as
applied.
Amended Complaint, ¶ 72.
The standards governing facial challenges are different from
those governing as-applied challenges.
A court may hold a statute unconstitutional either because
it
is
invalid
“on
its
face”
or
because
it
is
unconstitutional “as applied” to a particular set of
circumstances.
Each
holding
carries
an
important
difference
in
terms
of
outcome:
If
a
statute
is
unconstitutional as applied, the State may continue to
enforce the statute in different circumstances where it is
not unconstitutional, but if a statute is unconstitutional
on its face, the State may not enforce the statute under
any circumstances.
Traditionally, a plaintiff's burden in
an as-applied challenge is different from that in a facial
challenge.
In an as-applied challenge, “the plaintiff
contends that application of the statute in the particular
context in which he has acted, or in which he proposes to
act, would be unconstitutional.”
Ada v. Guam Soc'y of
Obstetricians and Gynecologists, 506 U.S. 1011, 1012, 113
S.Ct. 633, 634, 121 L.Ed.2d 564 (1992) (Scalia, J.,
dissenting), denying cert. to 962 F.2d 1366 (9th Cir.
1992).
Therefore, the constitutional inquiry in an asapplied challenge is limited to the plaintiff's particular
situation.
In comparison, the Court explained in Salerno
that
[a] facial challenge to a legislative Act is, of
course, the most difficult challenge to mount
successfully, since the challenger must establish
that no set of circumstances exists under which the
Act would be valid.
The fact that [an Act] might
operate unconstitutionally under some conceivable set
of circumstances is insufficient to render it wholly
invalid,
since
we
have
not
recognized
an
“overbreadth” doctrine outside the limited context of
the First Amendment.
481 U.S. at 745, 107 S.Ct. at 2100.
In other words, a
facial challenge to a statute should fail if the statute
has a constitutional application.
7
Women's Med. Prof'l Corp. v. Voinovich, 130 F.3d 187, 193-94 (6th Cir.
1997)(citing United States v. Salerno, 481 U.S. 739 (1987)).
tend to disfavor facial challenges.
Courts
Wash. State Grange v. Wash. State
Republican Party, 552 U.S. 442, 450 (2008).
It is therefore customary
for courts to “address an as-applied challenge before a facial
challenge because it generally will be more ‘efficient,’ because this
sequencing decreases the odds that facial attacks will be addressed
ʽunnecessarily’ and because this approach avoids encouraging
‘gratuitous wholesale attacks upon state and federal laws.’”
Connection Distrib. Co. v. Holder, 557 F.3d 321, 327-28 (6th Cir.
2009) (quoting Bd. of Trs. of the State Univ. of N.Y. v. Fox, 492 U.S.
469, 484–85 (1989)).
This Court will therefore begin by addressing plaintiff’s asapplied challenge.
The Due Process Clause of the Fourteenth Amendment to the United
States Constitution “provides that certain substantive rights — life,
liberty, and property — cannot be deprived except pursuant to
constitutionally adequate procedures.”
Loudermill, 470 U.S. 532, 541 (1985).
Cleveland Bd. of Educ. v.
In order to establish a
procedural due process claim, a plaintiff must show that: (1) he
possess an interest protected by the Due Process Clause of the
Fourteenth Amendment to the United States Constitution, (2) the state
deprived him of that interest, and (3) “the state did not afford [him]
adequate procedural rights prior to” that deprivation.
Hahn v. Star
Bank, 190 F.3d 708, 716 (6th Cir. 1999) (citing Zinermon v. Burch, 494
U.S. 113, 125-26 (1990)).
8
Whether there exists a constitutionally protected interest is the
threshold determination in any procedural due process claim.
v. Grinage, 82 F.3d 1343, 1349-50 (6th Cir. 1996).
Howard
Whether a person
possesses a constitutionally protected property interest is
traditionally a question of state law.
Co., 455 U.S. 422, 430 (1982).
not created by the Constitution.
See Logan v. Zimmerman Brush
“Property interests, of course, are
Rather, they are created and their
dimensions are defined by existing rules or understandings that stem
from an independent source such as state law - rules or understandings
that secure certain benefits and that support claims of entitlement to
those benefits.”
Bd. of Regents of State Colls. v. Roth, 408 U.S.
564, 577 (1972).
“The due process clause protects only those
interests to which one has a ‘legitimate claim of entitlement.’”
600
Marshall Entm’t Concepts, LLC v. City of Memphis, 705 F.3d 576, 588
(6th Cir. 2013) (quoting Hamilton v. Myers, 281 F.3d 520, 529 (6th
Cir. 2002)).
“A statute creates a protected property interest when it
‘both confers [a] benefit and limits the discretion of the
[government] to rescind the benefit.’”
Am. Premier Underwriters, Inc.
v. Nat’l R.R. Passenger Corp., 709 F.3d 584, 594 (6th Cir. 2013)
(quoting Med Corp., Inc. v. City of Lima, 296 F.3d 404, 410 (6th Cir.
2002)).
The parties disagree whether plaintiff possessed a
constitutionally protected property interest in continued disability
benefits after he became an elected official.
Plaintiff argues that a
legitimate, continuing claim of entitlement to disability benefits was
established when he was approved for disability benefits.
9
Plaintiff’s
Response, p. 11.
Defendant argues that, “[p]ursuant to O.R.C. §
145.362, Mathews does not have a protected property interest in
receiving disability benefits while serving as an elected official.”
Defendant’s Motion, PAGEID 808 (emphasis in original).
The Court
previously addressed these arguments and concluded as follows:
OPERS provides disability coverage to its members and pays
benefits upon the determination by its retirement board
that a member qualifies for a disability benefit.
See
O.R.C. § 145.35. The government cannot thereafter suspend
or terminate disability benefits without complying with §
145.362.
A legitimate claim of entitlement to OPERS
disability benefits is therefore established by the award
of benefits.
See Mathews v. Eldridge, 424 U.S. 319, 332
(1976) (“[T]he interest of an individual in continued
receipt of [Social Security disability benefits] is a
statutorily created ‘property’ interest protected by the
Fifth Amendment.”); Am. Premier Underwriters, Inc., 2013 WL
791410 at *10 (“Grants of . . . disability benefits . . .
have
[]
sufficed
to
meet
the
‘benefit
conferral’
requirement.”); EJS Props., LLC v. City of Toledo, 698 F.3d
845, 856-57 (6th Cir. 2012) (there is no property interest
if the government has the discretion to rescind the benefit
entirely).
Opinion and Order, ECF 14, p. 10.
Defendant disagrees with that
conclusion and argues “that the Court’s previous examination was at
too general a level.”
Defendant’s Motion, PAGEID 808.
According to
defendant, O.R.C. § 145.362 does not limit defendant’s “discretion to
rescind or terminate Mathews’ disability benefits, but plainly
provides that Mathews is no longer eligible for disability benefits.”
Id. at p. 27.
“[A] prerequisite for Mathews’ continued receipt of
disability benefits,” defendant argues, “is that he not return to
public service as an elected official.
Having done so, Mathews does
not have a legitimate claim of entitlement to continued disability
benefits.”
Id. (emphasis omitted).
Defendant cites to Banks v.
Block, 700 F.2d 292 (6th Cir. 1983), and argues that “the property
10
interest conferred by O.R.C. 145.362 is limited in nature.”
Defendant’s Motion, PAGEID 809.
The plaintiffs in Banks asserted due process claims under the
Fifth and Fourteenth Amendments because their food stamps had been
terminated prior to a “fair hearing.”
Banks, 700 F.2d at 293-95.
The
United States Court of Appeals for the Sixth Circuit noted that food
stamps were awarded for a predetermined certification period, that
benefits automatically ceased at the end of the period, and that
people seeking re-certification were treated like first-time
applicants.
Id. at 295.
The Court of Appeals also cited legislative
history noting that the food stamp program “is not a program of
permanent or continuing eligibility subject to periodic review,” but
rather, “is a program of distinct and separate entitlements known as
certification periods, which limit participation in the program.”
at 297.
Id.
The court held that food-stamp recipients therefore are
possessed of a limited property interest “for one certification period
and one certification period only.”
Id.
This Court concludes that Banks is inapposite. Unlike the
plaintiffs in Banks, recipients of OPERS disability benefits are not
awarded benefits for a uniform, predetermined period of time.
Although OPERS disability benefits recipients are required to undergo
an annual medical examination, see O.R.C. § 145.362, benefits are not
awarded in one year increments and the process of undergoing an annual
medical examination is not tantamount to reapplying for disability
benefits.
Accordingly, unlike the food stamp program at issue in
Banks, OPERS’ disability system is a program of continuing eligibility
11
subject to periodic review.
Cf. Banks, 700 F.2d at 297 (“The food
stamp program is not a program of permanent or continuing eligibility
subject to periodic review.”).
Accordingly, this Court rejects
defendant’s renewed argument that the OPERS disability benefits
program confers only a limited property interest in disability
benefits subject to the recipient not returning to public service;
this Court instead reaffirms its earlier holding that a legitimate
claim of entitlement to continuing OPERS disability benefits is
established by the award of benefits.
Having determined that plaintiff is possessed of a
constitutionally protected property interest in his continued
disability benefits, the Court must now determine exactly what
procedures are due in connection with the protection of that interest.
In making this determination, the Court must consider three factors:
First, the private interest that will be affected by the
official
action;
second,
the
risk
of
an
erroneous
deprivation of such interest through the procedures used,
and the probable value, if any, of additional or substitute
procedural
safeguards;
and
finally,
the
Government's
interest, including the function involved and the fiscal
and
administrative
burdens
that
the
additional
or
substitute procedural requirement would entail.
Mathews, 424 U.S. at 335.
“The United States Supreme Court has
consistently held that some form of a hearing is required prior to an
individual being finally deprived of a property interest.”
Chernin v.
Welchans, 844 F.2d 322, 325 (6th Cir. 1988) (citing Wolff v.
McDonnell, 418 U.S. 539, 557–58 (1974)).
“The requisite hearing must
be ‘at a meaningful time and in a meaningful manner.’”
Armstrong v. Manzo, 380 U.S. 545, 552 (1965)).
12
Id. (quoting
Plaintiff was elected to serve as a Council Person for the
Village of New Richmond, Ohio, and took office on January 1, 2010.
Amended Complaint, ¶ 20; Affidavit of Richard Mathews, ¶ 11.
Plaintiff filed an annual report with OPERS in March 2011 and March
2012, showing earned income as an elected official for the Village of
New Richmond.
Amended Complaint, ¶¶ 23-24; Amended Answer, ¶¶ 23-24;
Administrative Record, PAGEID 413-16.
On March 20, 2012, OPERS
notified plaintiff by telephone that his disability benefits would be
terminated effective April 30, 2012, because of his election to and
service for the New Richmond Village Council.
Amended Complaint, ¶
26; Amended Answer, ¶ 26; Administrative Record, PAGEID 272-73;
Affidavit of Richard Mathews, ¶ 15.
An OPERS representative spoke
with plaintiff or his counsel on the telephone at least six times
between March 21 and April 30, 2012, regarding the termination of
plaintiff’s disability benefits.
Affidavit of Jeremy Polley, ECF 32-
2, ¶ 9; Affidavit of Allen Foster, ECF 32-1, ¶¶ 3, 9, Exhibits A, G.
Section 145.362 of the Ohio Revised Code provides that a
“recipient’s disability benefit shall cease” if the “disability
benefit recipient is restored to service by, or elected to an elective
office with, an employer covered by [OPERS].”
O.R.C. § 145.362.
OPERS’ board has been granted the authority to adopt rules for the
proper administration and management of the public employees
retirement system.
O.R.C. § 145.09.
The parties agree, however, that
the procedures for providing written notice upon the termination of
disability benefits and to appeal a decision terminating disability
benefits do not apply where, as here, benefits were terminated as the
13
result of the election of a disability benefit recipient to an
elective office covered by OPERS.
Plaintiff’s Response, pp. 14-25.
Defendant’s Motion, PAGEID 810-13;
See also O.R.C. § 145.362.
Moreover, defendant concedes that there is no “formal appeal process
in return to public service situations.”
820.
Defendant’s Motion, PAGEID
Defendant argues, however, that “nothing in O.R.C. 145.362
prevents such a process” and “there is nothing to prevent the OPERS
board from enacting an administrative rule that provides additional
process in ‘return to public service’ situations.”
Motion, PAGEID 820 (emphasis in original).
Defendant’s
Defendant also argues that
the availability of post-deprivation mandamus relief offered plaintiff
an adequate opportunity to be heard.
Defendant’s Motion, PAGEID 807.
The parties have only briefly addressed the private and public
interests presented by the issues in this case.
Although defendant
argues that plaintiff’s interest in his disability benefits is less
significant than other potential interests, defendant seems to concede
that plaintiff has a substantial interest in continued disability
benefits.
See Defendant’s Motion, PAGEID 803-04.
Indeed, courts
“have recognized the severity of depriving someone of the means of his
livelihood, they have also emphasized that in determining what process
is due, account must be taken of ‘the length’ and ‘finality of the
deprivation.’”
Gilbert v. Homar, 520 U.S. 924, 932 (1997) (emphasis
in original; internal citations omitted).
Plaintiff’s interest in the
uninterrupted receipt of benefits is significant, and termination of
plaintiff’s benefits caused a permanent deprivation of that interest.
The Court notes, however, that the risk of depriving someone of the
14
means of his livelihood is lessened in a “return to service” case,
where disability benefits are terminated because the benefit recipient
returned to work.
Similarly, the government has a significant
interest in avoiding overpayments to disability benefits recipients
and in avoiding the administrative burdens of trying to recoup any
overpayment of benefits.
See O.R.C. § 145.563.
The government also
has an interest in avoiding the administrative burdens associated with
holding a pre-deprivation hearing.
The parties disagree whether plaintiff was entitled to a pretermination hearing.
Defendant cites to Codd v. Velger, 429 U.S. 624
(1977), among other cases, and argues that “[p]rocedural due process
does not require a pre-termination hearing if the plaintiff fails to
allege any factual dispute or issue that could be served by a hearing.
This is particularly true if the matter involves the straightforward
application of a statute or rule.”
Defendant’s Motion, PAGEID 800.
Plaintiff argues that Codd is inapplicable to the facts of this
case because plaintiff “was not afforded any forum in which to dispute
his claim.”
Plaintiff’s Response, p. 15 (emphasis omitted).
Plaintiff also notes that Codd involved a liberty interest, rather
than a property interest, and merely established a due process
framework in stigmatization cases where the aggrieved party is
afforded an opportunity to clear his name.
Id.
In Codd, the United States Supreme Court considered whether the
government was required to hold a hearing for a probationary police
officer before placing a “stigmatizing” report in the officer’s
personnel file indicating that he had attempted suicide by putting a
15
gun to his head.
Id. at 626.
The Supreme Court held that the
officer’s due process claim failed because he did not dispute the
truth of the facts stated in the report.
Id. at 627–28.
In a stigma
case, the Supreme Court explained, the Due Process Clause requires a
hearing only to provide an opportunity for the public employee to
clear his or her name.
Id. at 627.
The government was therefore not
required to hold a hearing when the employee did not dispute the truth
of the allegedly stigmatizing statement.
Id. at 627–28.
The Supreme
Court distinguished this type of single-purpose factual hearing from a
parole revocation hearing, which has two purposes: to adjudicate facts
and to determine whether, on the basis of those facts, a certain
consequence should follow.
See id. at 627 (citing Morrissey v.
Brewer, 408 U.S. 471, 479–80 (1972)).
In a parole revocation hearing,
“[t]he fact that there was no dispute with respect to the commission
of the act would not necessarily obviate the need for a hearing on the
issue of whether the commission of the act warranted the revocation of
parole.”
Id.
“Codd thus makes clear that the Due Process Clause may
require a hearing when there is no factual dispute if the decisionmaker has discretion to determine the consequences of the undisputed
facts.”
Anderson v. Recore, 446 F.3d 324, 331 (2d Cir. 2006).
Although plaintiff “cannot speculate what form of hearing he
seeks,” Plaintiff’s Supplemental Brief, p. 9 (internal quotations
omitted), the facts of this case do not lend themselves to more than a
single-purpose factual hearing.
Plaintiff’s disability benefits were
terminated pursuant to O.R.C. § 145.362, which provides: “If a
disability benefit recipient is restored to service by, or elected to
16
an elective office with, an employer covered by [OPERS], the
recipient's disability benefit shall cease.”
Plaintiff does not
dispute, nor has he ever disputed, that he was an OPERS disability
benefits recipient or that he was elected to an elective office with
an employer covered by OPERS.
In fact, the termination of plaintiff’s
disability benefits was predicated on his report of this information
to OPERS.
Under these circumstances, Ohio law required the
termination of plaintiff’s disability benefits and OPERS had no
discretion to do otherwise.
See O.R.C. § 145.362; O.A.C. § 145-2-23
(“The termination of a disability benefit due to the disability
benefit recipient being restored to service as provided in section
145.362 of the Revised Code and rule 145-2-22 of the Administrative
Code is not subject to the discretion of nor appeal to the retirement
board.”).
As was the case in Codd, no pre-determination hearing was
necessary because there were no factual disputes and OPERS had no
discretion in determining the consequences of those undisputed facts.
See Codd, 429 U.S. at 627-28.
Under these circumstances, there was
little risk of erroneous deprivation and the probable value of
additional or substitute procedural safeguards would have been
negligible.
See Gilbert, 520 U.S. at 933 (suggesting that there would
be no need for any pre-suspension process where suspension was
mandatory upon being charged with a felony, and “there would be
nothing to consider at the hearing except the independently verifiable
fact of whether an employee had indeed been formally charged with a
felony”).
17
The facts of this case are also analogous to those presented in
the Third Circuit’s recent decision in Loscombe v. City of Scranton,
___ Fed. App’x ____, No. 13-4579, 2015 WL 348055 (3d Cir. Jan. 28,
2015).
The plaintiff in Loscombe, a fire captain, received a
disability retirement pension from the City of Scranton after he was
forced to retire due to injuries sustained in a work-related accident.
Id. at *1.
When the plaintiff subsequently accepted an offer to
serve as a member of the Scranton City Council, his pension was
automatically suspended in accordance with a city ordinance that
provided: “When any fireman is pensioned and thereafter enters the
service of the City in any capacity with compensation the pension of
such person shall be suspended during his term of service.
Upon
termination of such compensated service the pension payments shall be
resumed on request of the pensioner.”
Id.
The plaintiff filed suit,
claiming, inter alia, that the failure to provide a pre-suspension
hearing violated the Fourteenth Amendment Due Process Clause.
The
Third Circuit assumed, for purposes of argument, that the plaintiff
was possessed of a property right in his disability pension benefits,
but nevertheless affirmed the district court’s dismissal of the due
process claims and concluded that a pre-suspension hearing was not
constitutionally required:
We have concluded on prior occasions that “a pretermination hearing was not required when there was no
underlying factual dispute to be hashed out in the
hearing.”
Alvin v. Suzuki, 227 F.3d 107, 121 (3d Cir.
2000) (citing Codd v. Velger, 429 U.S. 624, 627–28 (1977)).
Given that the suspension of Appellant's pension was based
on the Appellees' statutory reading and there was no
factual dispute to resolve, Appellant cannot demonstrate a
violation of his procedural due process rights due to a
lack of a hearing.
18
Loscombe, 2015 WL 348055 at *4.
This Court finds Loscombe persuasive.
As discussed supra, there is no factual dispute about whether
plaintiff was elected to an elective office with an employer covered
by OPERS, and OPERS had no discretion in applying O.R.C. § 145.362 to
the undisputed facts.
Accordingly, when balancing the factors, this
Court concludes that defendant was not required to provide a predeprivation hearing in this case.
As to the post-deprivation process afforded plaintiff, defendant
concedes that there is no “formal appeal process in return to public
service situations,” Defendant’s Motion, PAGEID 820, and defendant
“admits that it never provided Richard Mathews a formal opportunity to
appeal the termination of his disability benefits.”
32.
Amended Answer, ¶
The parties agree that there is no administrative process to
appeal a decision terminating benefits in a return to service case.
The parties also agree that plaintiff could have filed a mandamus
proceeding in state court to challenge the termination of his
disability benefits.
However, the parties disagree whether a state
court mandamus proceeding provides plaintiff an adequate opportunity
to be heard.
“Mandamus is an appropriate remedy where no statutory right of
appeal is available to correct an abuse of discretion by an
administrative body.”
State ex rel. Cydrus v. Ohio Pub. Emps. Ret.
Sys., 127 Ohio St. 3d 257, 260 (2010) (alteration and internal
quotations omitted).
“The termination of a disability benefit due to
the disability benefit recipient being restored to service as provided
in section 145.362 of the Revised Code and rule 145-2-22 of the
19
Administrative Code is not subject to the discretion of nor appeal to
the retirement board.”
O.A.C. § 145-2-23.
“Because there is no right
to appeal . . . , mandamus is an appropriate remedy.”
Cydrus, 127 Ohio St. 3d at 260.
State ex rel.
See also State ex rel. Lowe v. Ohio
Pub. Emps. Ret. Sys., No. 13AP-627, 2014 WL 5460448 (Ohio Ct. App.
Oct. 28, 2014).
Plaintiff argues “that a state court mandamus action does not and
cannot constitute a proper post-deprivation hearing as success derived
from such an action would leave Mathews in exactly the same position
he currently stands.”
Plaintiff’s Supplemental Brief, p. 8.
Plaintiff argues that a “mandamus action would not cure the underlying
unconstitutionality of [O.R.C. § 145.362]” because the statute “is
devoid of any provisions for Due Process when terminating a
recipient’s disability benefits.”
Id. at p. 7.
Plaintiff’s arguments
are not well taken.
As noted supra, Ohio law offers mandamus as “an appropriate
remedy where no statutory right of appeal is available to correct an
abuse of discretion by an administrative body.”
State ex rel. Cydrus,
127 Ohio St. 3d at 260. Accord State ex rel. Pipoly v. State Teachers
Ret. Sys., 95 Ohio St. 3d 327, 330 (2002) (citing State ex rel. Alben
v. State Emp. Relations Bd., 76 Ohio St. 3d 133, 135 (1996)).
In this
context, “[t]he term ʽabuse of discretion’ means an unreasonable,
arbitrary, or unconscionable decision.”
Id. (quoting State ex rel.
Elsass v. Shelby Cnty. Bd. of Commrs., 92 Ohio St. 3d 529, 533
(2001)).
Plaintiff could have filed a mandamus action to challenge
the termination of his disability benefits.
20
See State ex rel. Garrett
v. Ohio Pub. Emps. Ret. Sys., No. 11AP-1020, 2012 WL 4502951 (Ohio Ct.
App. Sept. 28, 2012).
If defendant’s determination that plaintiff had
been elected to an elective office with an employer covered by OPERS
were determined to be incorrect or unreasonable, then plaintiff’s
disability benefits could have been reinstated through that
proceeding.
See O.R.C. § 2731.01 (“Mandamus is a writ, issued in the
name of the state to an inferior tribunal, a corporation, board, or
person, commanding the performance of an act which the law specially
enjoins as a duty resulting from an office, trust, or station.”).
Plaintiff therefore had an adequate state remedy to redress the
termination of his disability benefits.
The fact that plaintiff very
likely would not have prevailed in a mandamus action, see e.g.,
Plaintiff’s Motion, PAGEID 237 (“[M]andamus (state court) would
constitute a folly because under such pursuit the state court would
simply be asked to enforce the statute as written . . . .”), has no
bearing on whether a mandamus action is an adequate state remedy for
the redress of his alleged wrong.
See Jackson v. City of Columbus,
194 F.3d 737, 751 (6th Cir. 1999) (affirming the district court’s
dismissal of procedural due process claims because a mandamus action
was an adequate state remedy) abrogated on other grounds by
Swierkiewicz v. Sorema N.A., 534 U.S. 506 (2002).
The parties also disagree whether the notice provided by
defendant comports with the requirements of due process.
The Amended
Complaint alleges that plaintiff received inadequate notice that his
disability benefits would be terminated and that “[t]here was a
complete absence of written notice to Plaintiffs of any procedure
21
available to appeal Defendant’s termination of Plaintiff’s disability
retirement and other benefits.”
Amended Complaint, ¶ 42.
Plaintiff
previously argued that defendant’s alleged failure in this regard was
in violation of O.A.C. § 145-2-23.
Plaintiffs’ Memorandum in
Opposition to Defendant’s Motion to Dismiss, ECF 8, PAGEID 56, 64;
Plaintiff’s Motion, PAGEID 235.
Plaintiff now concedes that the
procedures in O.A.C. § 145-2-23 for providing written notice upon the
termination of disability benefits and to appeal a decision
terminating disability benefits do not apply where, as here, benefits
are terminated due to the disability benefit recipient being restored
to service by, or elected to an elective office with, an employer
covered by OPERS.
Defendant’s Motion, PAGEID 810-13.
Plaintiff
argues that he did not receive adequate notice that his disability
benefits would be terminated because “OPERS did not provide Mathews
with: (1) adequate notice of any impending deprivation of a secured
property interest, and (2) nor did OPERS’ communication to Mathews
provide adequate notice of any pre-deprivation or post-deprivation
hearing as required under the Fourteenth Amendment.”
Plaintiff’s
Supplemental Brief, pp. 4-5.
“[P]rior to an action which will affect an interest in life,
liberty, or property protected by the Due Process Clause of the
Fourteenth Amendment, a State must provide ‘notice reasonably
calculated, under all circumstances, to apprise interested parties of
the pendency of the action and afford them an opportunity to present
their objections.’”
Mennonite Bd. of Missions v. Adams, 462 U.S. 791,
795 (1983) (quoting Mullane v. Central Hanover Bank & Trust Co., 339
22
U.S. 306, 314 (1950)).
“A primary purpose of the notice required by
the Due Process Clause is to ensure that the opportunity for a hearing
is meaningful.”
City of W. Covina v. Perkins, 525 U.S. 234, 240
(1999) (citing Mullane, 339 U.S. at 314).
Plaintiff’s challenge to
the notice provided by OPERS is two-fold: plaintiff argues that he did
not receive adequate notice that his disability benefits would be
terminated, and he argues that OPERS was required to provide notice of
an available state remedy to challenge the termination.
The parties agree that OPERS notified plaintiff by telephone on
March 20, 2012, that his disability benefits would be terminated
effective April 30, 2012, because of his election to and service for
the New Richmond Village Council.
Amended Complaint, ¶ 26; Amended
Answer, ¶ 26; Administrative Record, PAGEID 272-73; Affidavit of
Richard Mathews, ¶ 15.
An OPERS representative spoke with plaintiff
or plaintiff’s counsel on the telephone at least six times between
March 21 and April 30, 2012, regarding the termination of plaintiff’s
disability benefits.
Affidavit of Jeremy Polley, ¶ 9; Affidavit of
Allen Foster, ECF 32-1, ¶¶ 3, 9, Exhibits A, G.
Plaintiff was
informed that his disability benefits would be terminated on a
particular date and he was informed of the reason why his benefits
would be terminated.
See Affidavit of Jeremy Polley, ¶ 9; Affidavit
of Allen Foster, ECF 32-1, ¶¶ 3, 9, Exhibits A, G; Amended Complaint,
¶ 26.
Under the circumstances of this case, the Court concludes that
the oral notice provided by OPERS complied with the requirements of
due process.
23
As to plaintiff’s complaint that defendant’s communications
failed to provide adequate notice of an opportunity to be heard, the
Court concludes that OPERS was not required to provide notice of the
availability of a mandamus action as a vehicle for challenging the
termination of plaintiff’s disability benefits.
In City of W. Covina
v. Perkins, 525 U.S. 234 (1999), West Covina police officers, acting
pursuant to a valid state court search warrant, seized personal
property from the home of Lawrence Perkins.
The property belonged,
not to the suspected criminal who was a boarder in the home, but to
Perkins and his family.
The officers left an itemized list of the
property seized and notice that further information could be obtained
from any of the specified officers.
When Perkins called one of the
listed officers and asked about the return of the seized property, the
officer informed him that the property could be returned only upon
court order.
After attempting, unsuccessfully, to obtain such an
order, the Perkins family filed suit in federal court alleging that
their due process rights had been violated because the officers did
not adequately notify them of the specific procedures necessary for
the return of their seized property.
The Court of Appeals for the Ninth Circuit, relying on Memphis
Light, Gas & Water Div. v. Craft, 436 U.S. 1 (1978), held that the
city was constitutionally required to provide specific notice of the
particular state procedures to be followed by persons seeking the
return of seized property as well as sufficient information to permit
those persons to properly invoke those procedures.
Supreme Court reversed that decision:
24
The United States
Individualized notice that the officers have
property is necessary in a case such as the one
because the property owner would have no other
means of ascertaining who was responsible for his
taken the
before us
reasonable
loss.
No similar rationale justifies requiring individualized
notice of state-law remedies which, like those at issue
here, are established by published, generally available
state statutes and case law.
Once the property owner is
informed that his property has been seized, he can turn to
these public sources to learn about the remedial procedures
available to him.
The City need not take other steps to
inform him of his options.
City of W. Covina, 525 U.S. at 241 (citing Atkins v. Parker, 472 U.S.
115 (1985); Reetz v. Michigan, 188 U.S. 505, 509 (1903)). The Supreme
Court also distinguished its holding in Memphis Light:
In requiring notice of the administrative procedures,
however, we relied not on any general principle that the
government must provide notice of the procedures for
protecting one's property interests but on the fact that
the administrative procedures at issue were not described
in any publicly available document. A customer who was
informed that the utility planned to terminate his service
could not reasonably be expected to educate himself about
the procedures available to protect his interests[.]
Id. at 241-42.
The Supreme Court therefore concluded that “[w]hile
Memphis Light demonstrates that notice of the procedures for
protecting one's property interests may be required when those
procedures are arcane and are not set forth in documents accessible to
the public, it does not support a general rule that notice of remedies
and procedures is required.”
Id. at 242.
Here, the right to file a mandamus action is grounded in a state
statute, O.R.C. § 2731.01, and is well established in case law.
See,
e.g., State ex rel. Cydrus, 127 Ohio St. 3d at 260-61; State ex rel.
Lowe, 2014 WL 5460448.
OPERS was therefore not required to provide
individualized notice of the availability of a mandamus action
25
because, once plaintiff was informed that his disability benefits
would be terminated, he could turn to the state statute and case law
to learn about and pursue the remedial procedures available to him.
See City of W. Covina, 525 U.S. at 241.
OPERS therefore was not
constitutionally required to provide written notice of the
availability of a mandamus action.
In short, the Court concludes that the process afforded plaintiff
was adequate under the circumstances to protect plaintiff’s property
interest in his disability benefits.
Defendant is therefore entitled
to summary judgment on plaintiff’s as-applied procedural due process
claim.
Plaintiff also alleges that O.R.C. § 145.362 is unconstitutional
on its face.
Plaintiff specifically argues that O.R.C. § 145.362 is
unconstitutional because the statute does not expressly provide “any
legally sufficient Due Process protections.”
Brief, p. 1.
Plaintiff’s Supplemental
Defendant reasserts the arguments made in opposition to
plaintiff’s as-applied challenge and argues, further, that plaintiff
lacks standing to assert a facial challenge to O.R.C. § 145.362, that
plaintiff’s facial challenge is not ripe for resolution, and that
plaintiff’s challenge is in any event moot.
Defendant’s Motion,
PAGEID 818-19; Defendant’s Supplemental Brief, PAGEID 1061-62.
As discussed supra, a plaintiff can succeed in a facial challenge
only by “establish[ing] that no set of circumstances exists under
which the Act would be valid,” i.e., that the law is unconstitutional
in all its applications.
Salerno, 481 U.S. at 745. See also Wash.
State Grange, 552 U.S. at 449.
Because O.R.C. § 145.362 is not
26
unconstitutional as applied to plaintiff, it cannot be said that the
law is facially unconstitutional.
Defendant is therefore entitled to
summary judgment on plaintiff’s facial challenge to O.R.C. § 145.362.
See Women's Med. Prof'l Corp., 130 F.3d at 193-94 (“[A] facial
challenge to a statute should fail if the statute has a constitutional
application.”).
Defendant also seeks summary judgment on its counterclaim for
recovery of allegedly overpaid benefits and for declaratory judgment.
Defendant specifically alleges that plaintiff improperly received
$106,672.54 in disability benefits since January 1, 2010, when
plaintiff took office as a Council Person for the Village of New
Richmond, Ohio.
Amended Answer, PAGEID 1028-1030.
According to
defendant, plaintiff’s disability benefits terminated as a matter of
law on January 1, 2010, pursuant to O.R.C. § 145.362, and O.R.C. §
145.563 requires that plaintiff repay the benefits received by him
after that date.
Amended Answer, PAGEID 1028-1030.
Defendant
therefore seeks $106,672.54 for the overpayment of benefits and a
declaratory judgment that O.R.C. § 145.563 permits defendant to “setoff the overpayment and reduce Mathews’ monthly retirement benefit, up
to and including the full amount of the monthly benefit, until the
entire overpayment amount of $106,672.54 has been recouped.”
Id.
Plaintiff argues that “OPERS is not entitled to summary judgment
in its favor as genuine issues of material fact exists [sic] as to
when Mathews’ benefits should have been terminated, if at all.”
Plaintiff’s Response, PAGEID 938.
Observing that he notified OPERS in
March 2010, 2011, and 2012 that he had become an elected official and
27
that OPERS nevertheless continued to pay benefits until April 2012,
id. at PAGEID 939, plaintiff characterizes the continued payment of
benefits after that notice as a ratification by OPERS of plaintiff’s
entitlement to disability benefits.
Under these circumstances,
plaintiff argues, OPERS is now estopped from recouping the alleged
overpayments.
Id.
Section 145.362 of the Ohio Revised Code provides: “If a
disability benefit recipient is restored to service by, or elected to
an elective office with, an employer covered by [OPERS], the
recipient's disability benefit shall cease.”
Section 145.563 provides
that, “[i]f any person . . . is paid any benefit or payment by the
public employees retirement system, including any payment made to a
third party on the person's behalf, to which the person is not
entitled, the benefit or payment shall be repaid to the retirement
system by the person or third party.”
O.R.C. § 145.563.
“If the
person or third party fails to make the repayment, the retirement
system shall withhold the amount or a portion of the amount due from
any benefit or payment due the person or the person's beneficiary
under this chapter, or may collect the amount in any other manner
provided by law.”
Id.
As discussed supra, plaintiff assumed office as an elective
official with an employer covered by OPERS on January 1, 2010.
Although plaintiff disagrees that O.R.C. § 145.362 requires the
termination of an individual’s disability benefits at the time he
takes office as an elected official with an employer covered by OPERS,
plaintiff has not offered any alternative interpretation of O.R.C. §
28
145.362.
Instead, plaintiff appears to argue that OPERS is now
estopped from enforcing O.R.C. § 145.362 because OPERS continued to
pay disability benefits to plaintiff until April 30, 2012.
Plaintiff’s Response, PAGEID 938-939.
Defendant does not dispute that plaintiff reported to OPERS in
March 2011 and 2012 that he earned income as an elected official for
the Village of New Richmond, Amended Complaint, ¶¶ 23-24; Amended
Answer, ¶¶ 23-24; Administrative Record, PAGEID 413-16; Affidavit of
Richard Mathews, ¶ 9, or that OPERS continued to pay plaintiff
disability benefits until April 30, 2012, despite those reports.
Defendant insists, however, that those facts do not give rise to an
estoppel.
This Court agrees.
“The purpose of equitable estoppel is to prevent actual or
constructive fraud and to promote the ends of justice.
It is
available only in defense of a legal or equitable right or claim made
in good faith and should not be used to uphold crime, fraud, or
injustice.”
Ohio State Bd. of Pharmacy v. Frantz, 51 Ohio St. 3d 143,
145 (1990) (citing Heckler v. Cmty. Health Servs. of Crawford Cnty.
Inc., 467 U.S. 51, 59 (1984); Lex Mayers Chevrolet Co. v. Buckeye
Finance Co., 153 N.E.2d 454, 456 (Ohio Ct. App. 1958)).
“The party
claiming the estoppel must have relied on conduct of an adversary in
such a manner as to change his position for the worse and that
reliance must have been reasonable in that the party claiming estoppel
did not know and could not have known that its adversary's conduct was
misleading.”
Id. (citing Heckler, 467 U.S. at 59).
“It is well-
settled that, as a general rule, the principle of estoppel does not
29
apply against a state or its agencies in the exercise of a
governmental function.”
Id. (citing Sekerak v. Fairhill Mental Health
Ctr., 25 Ohio St. 3d 38, 39 (1986); Besl Corp. v. Pub. Util. Comm., 45
Ohio St. 2d 146, 150 (1976)).
Plaintiff recognizes the general rule that “the principle of
estoppel does not apply against a state or its agencies in the
exercise of a governmental function,” but he argues that the general
rule does not apply in this case because the plaintiff in Frantz did
not assert a claim for procedural due process.
Supplemental Brief, PAGEID 1040.
taken.
Plaintiff’s
Plaintiff’s argument is not well
Notably, plaintiff has offered no support for his suggestion
that the general rule does not apply in this case.
Indeed, this Court
has previously held that OPERS is not subject to an estoppel defense,
particularly where, as here, OPERS made no representation that induced
the plaintiff to take action.
Evans v. Ohio Pub. Emp. Ret. Sys., No.
2:07-CV-1061, 2008 WL 4849119, at *6 (S.D. Ohio Nov. 6, 2008).
Here,
plaintiff has offered no evidence that he reasonably relied to his
detriment on OPERS’ actions, inactions, or representations.
Plaintiff
argues that “the amount of time which passed from the date Mathews
first advised OPERS (by letter dated March[] 29, 2010) and the date
OPERS unilaterally terminated Plaintiff’s disability retirement
benefits (April 30, 2012; more than 750 days), is a relevant,
determinative and controlling fact.”
PAGEID 1041.
Plaintiff’s Supplemental Brief,
However, plaintiff’s entitlement to disability benefits
terminated as a matter of law on January 1, 2010, when he became an
elected official for the Village of New Richmond.
30
Plaintiff’s
reliance on any alleged action or inaction by OPERS after January 1,
2010, could not have induced him to become an elected official on that
date. It follows, then, that plaintiff’s estoppel defense must fail.
Defendant has presented uncontested evidence that plaintiff
received $106,672.54 in disability benefits from OPERS between January
2010, when plaintiff’s entitlement to disability benefits ceased as a
matter of law, and April 2012, when OPERS stopped paying disability
benefits to plaintiff.
Affidavit of Jeremy Polley, ¶ 12.
Because
plaintiff’s entitlement to benefits ceased on January 1, 2010, he
must, as required by O.R.C. § 145.563, repay to OPERS the disability
benefits paid to him after that date.
Defendant is therefore entitled
to summary judgment on its counterclaim for the overpayment of
benefits.
WHEREUPON, based on the foregoing, Plaintiff’s Motion, ECF 26, is
DENIED to the extent that the motion seeks summary judgment on
plaintiff’s claims.
Defendant’s Motion, ECF 32, is GRANTED.
Defendant is granted judgment on plaintiff’s claims and on its
counterclaim. The Court AWARDS defendant $106,672.54 pursuant to
O.R.C. § 145.563 for the overpayment of disability benefits paid to
plaintiff between January 2010 and April 2012, and may collect that
amount in accordance with the procedures established in O.R.C. §
145.563(B).
The Clerk is DIRECTED to enter FINAL JUDGMENT accordingly.
March 12, 2015
s/Norah McCann King_______
Norah McCann King
United States Magistrate Judge
31
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