                      Note: This disposition is nonprecedential.

 United States Court of Appeals for the Federal Circuit

                                     2007-3219



                               ROSE CARACCIOLO,

                                                            Petitioner,

                                          v.


                     OFFICE OF PERSONNEL MANAGEMENT,

                                                            Respondent.


      Rose Caracciolo, of Lindenhurst, New York, pro se.

       Robert C. Bigler, Trial Attorney, Commercial Litigation Branch, Civil Division,
United States Department of Justice, of Washington, DC, for respondent. With him on
the brief were Peter D. Keisler, Assistant Attorney General, Jeanne E. Davidson,
Director, and Deborah A. Bynum, Assistant Director. Of counsel was Jo Ann Chabot,
Office of Personnel Management, of Washington, DC.

Appealed from: United States Merit Systems Protection Board
                      NOTE: This disposition is nonprecedential.

United States Court of Appeals for the Federal Circuit


                                      2007-3219



                                ROSE CARACCIOLO,

                                                                   Petitioner,
                                          v.

                     OFFICE OF PERSONNEL MANAGEMENT,

                                                                   Respondent.




                           __________________________

                          DECIDED: December 21, 2007
                          __________________________



Before NEWMAN, Circuit Judge, CLEVENGER, Senior Circuit Judge, and DYK, Circuit
Judge.

PER CURIAM.



      Petitioner Rose Caracciolo, appearing pro se, appeals a decision of the Merit

Systems Protection Board affirming the decision of the Office of Personnel Management

concerning her retirement annuity. Caracciolo v. Office of Personnel Management, Docket

No. NY0831050190-I-3 (MSPB August 31, 2006). We affirm.
                                     BACKGROUND

       Ms. Caracciolo's employment at the Internal Revenue Service began in 1973. Her

pay status ended on October 27, 1994, and between October 28, 1994 and April 27, 1996

she received workers' compensation payments. Starting April 28, 1996 she received

monthly disability annuity payments. She was finally terminated from employment on

January 4, 1997, based on disability. On April 30, 1997, OPM sent a letter to Ms.

Caracciolo informing her that it had overpaid her disability annuity by $2,640, and stating

that the overpayment would be recovered by OPM.               Ms. Caracciolo requested

reconsideration. In its reconsideration decision, OPM affirmed the overpayment.

       Ms. Caracciolo appealed to the Merit Systems Protection Board, but later withdrew

the appeal due to injury; she refiled after recovering. On appeal, the administrative judge

affirmed OPM's reconsideration decision without a hearing. Ms. Caracciolo requested

review from the full Board, which vacated the AJ's ruling and remanded for a hearing on the

merits. Before the hearing on the merits, Ms. Caracciolo became ill and the case was

dismissed without prejudice. Ms. Caracciolo later refiled the appeal, but the AJ dismissed

the appeal as having been withdrawn. On petition for review, the full Board vacated the

dismissal and remanded to the AJ, who reinstated the appeal. During the pendency of that

appeal, OPM rescinded its original reconsideration decision upon evidence provided by Ms.

Caracciolo, and stated that it would recalculate her annuity. Based on OPM's rescission,

the AJ dismissed the appeal and the full Board denied review. On October 29, 2001 OPM

wrote to Ms. Caracciolo, having recalculated her retirement date as October 28, 1994, with

annuity payments beginning April 28, 1996 as previously calculated. On this recalculation,




2007-3219                                   2
OPM acknowledged error in the prior overpayment notice for $2,640. OPM stated that

there had been an overpayment of only $131.70, and waived recovery of the overpayment.

       On September 10, 2004, in reply to a request filed by Ms. Caracciolo on April 2,

2004, OPM issued a formal decision confirming that Ms. Caracciolo's correct annuity

calculation date was October 28, 1994, and that she did not receive an overpayment of

$2,640. Ms. Caracciolo filed an appeal challenging the recalculation, but was granted

dismissal to allow her to recover from an injury. She refiled the appeal in February 2006.

The AJ then affirmed OPM's decision, explaining that the monthly annuity as calculated

based on cessation of pay in October 1994 was $959.00, but based on Ms. Caracciolo's

proposed date of January 4, 1997 would be $954.00. The AJ explained that the calculation

based on Ms. Caracciolo's proposed date was the source of the originally assessed

overpayment of $2,640.00. The full Board denied further review. Ms. Caracciolo appeals.

                                      DISCUSSION

       We review a decision of the Board to determine if it was arbitrary, capricious, an

abuse of discretion, or otherwise not in accordance with law; obtained without procedures

required by law, rule, or regulation; or unsupported by substantial evidence. See 5 U.S.C.

'7703(c); Cheeseman v. Office of Personnel Mgmt., 791 F.2d 138, 140 (Fed. Cir. 1986).

       On appeal, Ms. Caracciolo requests calculation of her annuity based on her final

separation date of January 4, 1997 instead of the October 27, 2004 pay-cease date. Ms.

Caracciolo points out that under 5 C.F.R. '831.701(b), annuity benefits for an employee

who retires due to disability shall commence either on the day after separation from service

or the day after pay ceases, whichever is more favorable to the employee. The AJ held

that OPM had correctly interpreted the statute, had properly calculated Ms. Caracciolo's


2007-3219                                    3
annuity based upon both the date pay ceased and the date of separation, and then adopted

the calculation that not only granted her a higher monthly payment but also a lower

overpayment (which OPM waived).

       Ms. Caracciolo also argues that OPM erred in not awarding full time service credit

for the period during which she was a WAE ("while actually employed") employee. In Bain

v. Office of Personnel Management, 978 F.2d 1227 (Fed. Cir. 1992) this court upheld the

calculation of service credit for WAE employees by counting only the time actually

employed. The AJ determined that OPM made the correct calculation; we discern no error

in this ruling, which is in accordance with statute and precedent.

       Ms. Caracciolo asks that OPM return the sum of $2,251 that she asserts was

withheld from annuity payments based on OPM's initial notice that she had been overpaid

by $2,640. OPM firmly states that no amount was withheld from her annuity payments.

Ms. Caracciolo has provided no evidence to contravene OPM's statement. On the record

presented, Ms. Caracciolo did not substantiate her claim that OPM withheld funds to satisfy

its initial incorrect assessment.

       On this appeal, each party shall bear its costs.




2007-3219                                    4
