                          UNITED STATES OF AMERICA
                       MERIT SYSTEMS PROTECTION BOARD


     PAMELA A. HEWITT,                               DOCKET NUMBER
                  Appellant,                         DE-0845-16-0051-I-1

                  v.

     OFFICE OF PERSONNEL                             DATE: September 21, 2016
       MANAGEMENT,
                   Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Pamela A. Hewitt, Hot Springs, South Dakota, pro se.

           Karla W. Yeakle, Washington, D.C., for the agency.


                                           BEFORE

                              Susan Tsui Grundmann, Chairman
                                 Mark A. Robbins, Member


                                       FINAL ORDER

¶1         The appellant has filed a petition for review of the initial decision, which
     affirmed the reconsideration decision of the Office of Personnel Management
     (OPM) finding that she was overpaid in Federal Employees’ Retirement System
     (FERS) annuity benefits.     Generally, we grant petitions such as this one only


     1
        A nonprecedential order is one that the Board has determined does not add
     significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
     but such orders have no precedential value; the Board and administrative judges are not
     required to follow or distinguish them in any future decisions. In contrast, a
     precedential decision issued as an Opinion and Order has been identified by the Board
     as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
                                                                                           2

     when: the initial decision contains erroneous findings of material fact; the initial
     decision is based on an erroneous interpretation of statute or regulation or the
     erroneous application of the law to the facts of the case; the administrative
     judge’s rulings during either the course of the appeal or the initial decision were
     not consistent with required procedures or involved an abuse of discretion, and
     the resulting error affected the outcome of the case; or new and material evidence
     or legal argument is available that, despite the petitioner’s due diligence, was not
     available when the record closed. Title 5 of the Code of Federal Regulations,
     section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this
     appeal, we conclude that the petitioner has not established any basis under section
     1201.115 for granting the petition for review. Therefore, we DENY the petition
     for review. Except as expressly MODIFIED by this Final Order, 2 we AFFIRM
     the initial decision.
¶2            The appellant appealed OPM’s September 25, 2015 reconsideration decision
     finding that she was overpaid $4,728 in FERS annuity benefits. Initial Appeal
     File (IAF), Tab 1 at 4, Tab 9 at 6-8. The appellant elected early retirement under
     FERS on January 31, 2007. IAF, Tab 1 at 4. She then accepted a position as a
     reemployed annuitant with her former employing agency, the Department of
     Veterans Affairs, serving in that capacity between May 13, 2007, and
     December 17, 2010. IAF, Tab 1 at 4, Tab 10. On July 23, 2010, the appellant
     reached the minimum retirement age of 56, and OPM started paying her an
     annuity supplement of $630 per month effective August 1, 2010. 3 IAF, Tab 9
     at 42.


     2
       We have modified the initial decision to clarify the Board’s basis for exercising
     jurisdiction over this appeal.
     3
       The annuity supplement of $630 per month represents what the appellant would have
     received for the portion of her Social Security benefits attributable to her creditable
     FERS civilian service had she been eligible to receive Social Security benefits when she
     retired. IAF, Tab 9 at 42; see 5 C.F.R. § 842.504 .
                                                                                     3

¶3        OPM reduced the appellant’s annuity supplement to $236 per month after
     receiving information about her 2010 earnings from the Social Security
     Administration (SSA), which showed her W-2 earnings for that year as $53,795.
     IAF, Tab 13 at 4, 6. Her earnings exceeded $14,160, the amount she would have
     been allowed to earn for Social Security purposes during that year.      Id. at 4.
     OPM thus found that her annuity supplement from July 1, 2011, through
     June 30, 2012, was too high and calculated her overpayment as $4,728. IAF, Tab
     9 at 23-29.   The appellant asked for reconsideration, and OPM affirmed its
     decision. Id. at 21-22. She appealed. IAF, Tab 1. The administrative judge
     found that the appellant had been entitled to receive an annuity supplement after
     July 23, 2010, and that OPM had established the existence and amount of her
     overpayment for the period between July 1, 2011, and June 30, 2012.          IAF,
     Tab 16, Initial Decision (ID) at 4-5. The administrative judge decided the appeal
     based on the written record. ID at 1; IAF, Tab 12.
¶4        On review, the appellant argues that she was coerced into waiving her right
     to a hearing. Petition for Review (PFR) File, Tab 1 at 3-4. Because there was no
     hearing, she argues, the administrative judge improperly interpreted the
     governing statutes and regulations, and he did not consider the information she
     submitted. Id. She further argues that, because she did not have a hearing, she
     was unable to question OPM’s representative because that person did not
     participate in the telephonic conferences with the administrative judge. Id. The
     appellant requests that the Board allow her to submit copies of the “laws,
     regulations, and OPM guidance pamphlets” that she believes explain her position,
     as well as her notes regarding the inaccurate statements that she believes the
     administrative judge made. Id.
¶5        The appellant has not identified with specificity any factual or interpretive
     error, and our review of the initial decision shows that the administrative judge
     reached the correct result. We would nevertheless clarify the basis upon which
     we may exercise jurisdiction over this appeal.
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¶6        Citing 5 C.F.R. § 842.505(e), the administrative judge explained that the
     reduction in the appellant’s FERS annuity supplement because of her excess
     earnings was not subject to Board review under the due process procedures
     described in 5 U.S.C. § 8461(e). ID at 3-4. The administrative judge stated that
     he would review the appeal based on the Board’s jurisdiction over appeals from
     final OPM decisions that affect individuals’ rights and interests under FERS. ID
     at 1; 5 U.S.C. § 8461(e)(1); 5 C.F.R. § 845.204(c)(2). In some appeals brought
     on that basis, however, the Board has found that it lacked jurisdiction because the
     overpayment was related to a nonappealable matter. See, e.g., Campbell v. Office
     of Personnel Management, 90 M.S.P.R. 68, ¶¶ 9-10 (2001) (finding that the Board
     lacked jurisdiction over the appeal because an overpayment resulted from a
     change in the terms of the appellant’s life insurance coverage); Mitchell v. Office
     of Personnel Management, 25 M.S.P.R. 186, 189 (1984) (explaining that the
     Board lacked jurisdiction to review whether OPM correctly determined that an
     annuity overpayment occurred when the overpayment resulted from a change in
     the appellant’s health insurance coverage and premiums). In contrast, the Board
     found in Miller v. Office of Personnel Management, 99 M.S.P.R. 104, ¶¶ 10-13
     (2005), aff’d, 449 F.3d 1374 (Fed. Cir. 2006), another appeal related to changes
     in an appellant’s life insurance coverage, that it would consider matters related to
     the computation of the appellant’s retirement annuity and to her waiver request.
     Here, the appellant raised issues related to the computation of her annuity
     supplement. IAF, Tab 14 at 3-4, Tab 15 at 3-4. Additionally, she requested a
     waiver when her case was before OPM, and OPM decided that she was not
     entitled to one.   IAF, Tab 9 at 7-8, 21-22.    Only these issues fall within the
     Board’s jurisdiction.
¶7        As for the computation of the appellant’s annuity supplement, she argued
     OPM improperly started her annuity supplement during 2010 while she was still a
     reemployed annuitant. IAF, Tab 14 at 3-4, Tab 15 at 3-4. She contended that she
     first qualified for the annuity supplement in January 2011, a few weeks after she
                                                                                    5

     left her reemployed annuitant position.    IAF, Tab 15 at 3.      The appellant,
     however, was entitled to an annuity supplement in 2010 under 5 U.S.C.
     § 8421(a)(2).   The statute states in pertinent part that individuals who retire
     pursuant to section 8414(b) are entitled to such a supplement after they attain
     minimum retirement age. The appellant attained the minimum retirement age of
     56 on July 23, 2010. IAF, Tab 9 at 42. The administrative judge thus properly
     found that she was entitled to an annuity supplement between July 23 and
     December 31, 2010. ID at 4-5.
¶8        As for whether OPM might waive recovery of the overpayment, recovery
     may be waived if the individual is without fault and recovery would be against
     equity and good conscience. 5 U.S.C. § 8470(b); 5 C.F.R. § 845.301. When
     recovery of an overpayment would cause financial hardship, it is against equity
     and good conscience. 5 C.F.R. § 845.303(a). Here, the appellant did not claim
     financial hardship as for the overpayment or the repayment schedule, nor did she
     submit a Financial Resources Questionnaire or any other evidence that would
     indicate she needed substantially all of her income and liquid assets to meet her
     current ordinary and necessary living expenses and liabilities.     OPM, in its
     reconsideration decision, concluded that she bore some fault for the existence of
     the overpayment and thus was not entitled to a waiver. IAF, Tab 9 at 7-8. We
     agree. The notice the appellant received when her annuity supplement started
     explains that her entitlement to such an annuity was subject to an earnings test
     and might decrease or even be reduced to $0 based on her earnings. Id. at 42;
     5 C.F.R. § 845.302(b).
¶9        The appellant argues on review that the administrative judge improperly
     cited Vojas v. Office of Personnel Management, 115 M.S.P.R. 502, ¶ 10 (2011),
     and Levine v. Office of Personnel Management, 72 M.S.P.R. 549, 551 (1996),
     because these cases do not pertain to the particular circumstances of her appeal.
     PFR File, Tab 1 at 5. The administrative judge, however, properly cited these
     cases for the general proposition that OPM bears the burden of proof in
                                                                                       6

      overpayment appeals. ID at 3. As for the statutes and regulations upon which the
      appellant allegedly relied in arguing that OPM’s decision was erroneous, the
      administrative judge explained in detail why certain statutes and regulations do
      not apply in her case. ID at 4. In any event, the appellant failed to frame her
      arguments on review with specificity and to cite particular statutes and
      regulations that she believes OPM and the administrative judge misconstrued.
¶10        Finally, the record does not show that the administrative judge coerced the
      appellant into waiving her right to a hearing.     The appellant admits that she
      waived her right to a hearing after the administrative judge explained that a
      hearing was unnecessary because “this case doesn’t have witnesses,” i.e., there
      were no factual disputes, and resolution of the appeal was contingent upon the
      interpretation of the applicable statutes and regulations. PFR File, Tab 1 at 3. In
      the Order Setting Close of the Record, the administrative judge explained that the
      appellant asserted that her pleadings had adequately set forth her position, and
      she thus “voluntarily waived her right to a hearing.” IAF, Tab 12 at 12. The
      appellant did not challenge the administrative judge’s characterization or seek to
      withdraw her waiver in subsequent pleadings.        IAF, Tabs 14-15.      We thus
      conclude that her argument is thus unavailing. As a result, we affirm the initial
      decision.

                      NOTICE TO THE APPELLANT REGARDING
                         YOUR FURTHER REVIEW RIGHTS
            The initial decision, as supplemented by this Final Order, constitutes the
      Board’s final decision in this matter. 5 C.F.R. § 1201.113. You have the right to
      request review of this final decision by the U.S. Court of Appeals for the Federal
      Circuit. You must submit your request to the court at the following address:
                               United States Court of Appeals
                                   for the Federal Circuit
                                 717 Madison Place, N.W.
                                  Washington, DC 20439
                                                                                  7

The court must receive your request for review no later than 60 calendar days
after the date of this order.           See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff.
Dec. 27, 2012). If you choose to file, be very careful to file on time. The court
has held that normally it does not have the authority to waive this statutory
deadline and that filings that do not comply with the deadline must be dismissed.
See Pinat v. Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).
         If you need further information about your right to appeal this decision to
court, you should refer to the Federal law that gives you this right. It is found in
title 5 of the United States Code, section 7703 (5 U.S.C. § 7703) (as rev. eff.
Dec. 27, 2012). You may read this law as well as other sections of the United
States     Code,     at   our    website,   http://www.mspb.gov/appeals/uscode.htm.
Additional         information     is    available   at   the    court’s   website,
www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se
Petitioners and Appellants,” which is contained within the court’s Rules of
Practice, and Forms 5, 6, and 11.
         If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Merit Systems Protection Board neither endorses the services provided by any
attorney nor warrants that any attorney will accept representation in a given case.




FOR THE BOARD:                               ______________________________
                                             Jennifer Everling
                                             Acting Clerk of the Board
Washington, D.C.
