The opinion of the court was delivered by: Dorsey, District Judge.
RULING ON MOTION FOR SUMMARY JUDGMENT
I. Facts and Procedural History*fn1
"On August 5, 1976, while an employee of the United States
Postal Service, defendant filed a claim for benefits under the
Federal Employees' Compensation Act (`FECA')," Statement,
¶ 1, for hypertension, cephalalgia,*fn2 sleeplessness, and
high blood pressure, allegedly as a result of occupation
Apparently, in the early 1970s, defendant, along with a
number of associates, owned several parcels of property in
Stamford, Connecticut, which were offered for sale to the
Postal Service. Defendant's involvement with these properties
and his potential conflict of interest prompted investigations
by his superiors and the United States Attorney. A subsequent
indictment resulted in defendant's eventual conviction in 1979
on a charge that he participated, as a government employee, in
a decision or recommendation which he knew he had a financial
interest, in violation of 18 U.S.C. § 208(a). See Employees'
Compensation Appeals Board ("ECAB") Decision and Order
Defendant claimed that the investigations, the suspension of
further merit increases until the investigations were
concluded, and the attack on his honor and integrity caused
his medical problems. Id.
"Compensation was awarded from September 30, 1976 through
February 28, 1977 and April 1977 through February 5, 1981."
Statement, ¶ 3. "On February 23, 1981 the Director of Office of
Workers' Compensation Programs ("OWCP") issued an order
rejecting defendant's claims." Id., ¶ 4. The Director found
that defendant's medical problems were not the result "of his
Federal employment as a Postmaster, but related to his outside
business activities." Compensation Order at 1 (2/23/81).
Defendant's subsequent application for review was denied.
Statement, ¶¶ 6-7.
After the OWCPL's decision, defendant was informed that he
had been overpaid in the amount of $102,329.32. Id., ¶ 9.
Defendant sought review of both the denial of his benefits and
a review of the overpayment order. Id., ¶¶ 11-15. On March 18,
1982, the ECAB affirmed OWCP's decision denying defendant
further benefits. Id., ¶¶ 16-17. "On August 9, 1984 an OWCP
hearing representative ("HR") conducted a hearing on the issues
of: a. overpayment; b. amount of overpayment; c. existence of
absence of fault by defendant." Id., ¶ 22. The HR found that
the correct amount of overpayment was $102,329.32 and that
defendant was not without fault in causing the overpayment. See
Decision of HR (1/25/85). Specifically, the HR found that
defendant should have known that he was not entitled to
benefits because his problems related to his "outside business
association and his financial interest in certain parcels of
property." Id. at 4. By representing that his medical problems
were job related, defendant was found to have violated
5 U.S.C. § 8129(a).*fn3 "On July 23, 1985 OWCP moved the ECAB to remand
for a further hearing as there had been an incorrect finding as
to [defendant's] fault." Statement, ¶ 26. The motion was
subsequently granted. Id., ¶ 28.
On remand, the HR issued a new decision on January 7, 1986,
and found defendant without fault in creating the overpayment.
Id., ¶¶ 30-32. However, waiver of the overpayment was denied.
Although defendant was found to be without fault in causing the
payments, the HR concluded that recovery would not defeat the
purpose of the FECA and would not be against equity and good
conscience. This conclusion was based on the HR's finding that
defendant had sufficient assets to afford repayment.
Defendant appealed the HR decision on April 9, 1986. On
March 31, 1987, the ECAB affirmed the HR's decision denying a
waiver based on defendant's estimated asset worth of
$584,833.78. See ECAB Decision and Order (3/31/87). Several
demand letters have subsequently been sent to defendant
requesting overpayment. No payment has yet been made.
On October 2, 1987, plaintiff instituted this action seeking
recovery from defendant of the $102,329.32 in FECA
overpayments made to him, plus interest to date of judgment.
Defendant denies plaintiff's entitlement to repayment on the
basis that the procedures "followed by the U.S. Department of
Labor, Office of Workers' Compensation Programs in purporting
to determine and assess the amount of alleged overpayment to
defendant violated the due process rights guaranteed to the
defendant by the Fifth Amendment to the U.S. Constitution."
at 1. Plaintiff has moved for summary judgment. For the
reasons set forth herein, the motion is denied in part and
granted in part.
. . .Fed.R.Civ.P. 56(c) provides, in part, that
summary judgment shall be rendered only when a
review of the entire record demonstrates "that
there is no genuine issue as to any material
fact." The burden falls on the moving party to
establish that no relevant facts are in dispute.
Heyman v. Commerce & Indus. Ins. Co.,
524 F.2d 1317, 1319-20 (2d Cir. 1975); accord Addickes v.
S.H. Kress & Co., 398 U.S. 144, 157 [90 S.Ct. 1598,
1608, 26 L.Ed.2d 142] (1970). Moreover, in
determining whether a genuine issue has been
raised, a court must resolve all ambiguities and
draw all reasonable inferences against the moving
party. United States v. Diebold, Inc.,
369 U.S. 654, 655 [82 S.Ct. 993, 994, 8 L.Ed.2d 176] (1962)
(per curiam); Quinn v. Syracuse Model Neighborhood
Corp., 613 F.2d 438, 445 (2d Cir. 1980).
Properly employed, summary judgment allows the
court to dispose of meritless claims before
becoming entrenched in a frivolous and costly
trial. Knight v. U.S. Fire Ins. Co., 804 F.2d 9 (2d
Cir. 1986), cert. denied, [___ U.S. ___], 107 S.Ct.
1570 [94 L.Ed.2d 762) (1987). It must, however, be
used selectively to avoid trial by affidavit. Judge
v. Buffalo, 524 F.2d 1321 (2d Cir. 1975).
Hence, the fundamental maxim remains that on a
motion for summary judgment a court "cannot try
issues of fact; it can only determine whether there
are issues to be tried." Heyman, 524 F.2d at
1319-20. As long as the plaintiff has adduced
sufficient facts to ...