                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     TAMARA C. LUSK,                                 DOCKET NUMBER
                  Appellant,                         DE-0845-15-0178-B-1

                  v.

     OFFICE OF PERSONNEL                             DATE: April 14, 2016
       MANAGEMENT,
                   Agency.



                THIS FINAL ORDER IS NONPRECEDENTIAL 1

           David W. Parker, Esquire, Salt Lake City, Utah, for the appellant.

           Roxann Johnson, 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 remand initial decision,
     which found that the Office of Personnel Management (OPM) established the
     existence and amount of an overpayment and that OPM must issue a
     reconsideration decision regarding the issue of waiver of the overpayment and


     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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     adjustment of the repayment schedule. Generally, we grant petitions such as this
     one only 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. See 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 and AFFIRM the initial decision as to the existence and amount of the
     overpayment, which is now the Board’s final decision concerning this
     issue. 5 C.F.R. § 1201.113(b). We agree with the administrative judge that it is
     necessary for OPM to issue a reconsideration decision regarding the issue of
     waiver of the overpayment, and, if applicable, the adjustment of a repayment
     schedule.   Thus we FORWARD the appellant’s claim regarding her possible
     entitlement to a waiver of the overpayment and adjustment of a repayment
     schedule to OPM.

                                      BACKGROUND
¶2         OPM approved the appellant’s application for disability retirement under
     the Federal Employees’ Retirement System (FERS) in October 2008.             Lusk v.
     Office of Personnel Management, MSPB Docket No. DE-0845-15-0178-I-1,
     Initial Appeal File (IAF), Tab 4 at 38-39. In March 2010, the Social Security
     Administration (SSA) awarded the appellant benefits retroactive to April 2009,
     and monthly benefits beginning in March 2010. Id. at 21. Later in March 2010,
                                                                                         3

     the appellant notified OPM that she had been awarded Social Security disability
     benefits. Id. at 20.
¶3         OPM notified the appellant in April 2011, that she had been overpaid for
     the period from April 2009 to April 2011, in the amount of $20,505, and that it
     would    collect   this   overpayment   in   monthly   installments   beginning    in
     August 2011.       IAF, Tab 4 at 11-12.      In May 2011, the appellant sought
     reconsideration. Id. at 9-10. OPM did not issue its reconsideration decision until
     January 2015. Id. at 5-7. In its decision, OPM determined that the appellant was
     overpaid $20,505. Id. at 5.
¶4         The appellant timely appealed OPM’s reconsideration decision. IAF, Tab 1.
     After holding a telephonic hearing, the administrative judge issued an initial
     decision reversing OPM’s reconsideration decision. IAF, Tab 12, Initial Decision
     (ID). Specifically, he found that the appellant was overpaid due to her receipt of
     Social Security disability benefits but that OPM failed to establish an amount
     certain owed by the appellant as a result of the overpayment.         ID at 5.    The
     administrative judge found that OPM erred in its FERS Paid and Due Calculation
     worksheet because, although the worksheet stated that the appellant was paid for
     the period from April 1, 2010 through April 30, 2011, only one such monthly
     payment was included in the calculation of payments received.             ID at 4.
     Additionally, the administrative judge found, by applying the standard for
     computing a disability annuity rate under 5 U.S.C. § 8452(a)(2)(A),         that the
     worksheet contained an error in its calculation of the rate that the appellant
     should have received per month when considering the offset for her Social
     Security disability benefits. Id.
¶5         OPM timely petitioned for review.           Lusk v. Office of Personnel
     Management, MSPB Docket No. DE-0845-15-0178-I-1, Petition for Review File,
     Tab 1.   In its petition, OPM asserted that, although the administrative judge
     correctly found that it miscalculated the number of months the appellant was
     overpaid from April 1, 2010 through April 30, 2011, OPM correctly calculated
                                                                                        4

     the appellant’s annuity rate under 5 U.S.C. §§ 8415, 8452(d)(1), which generally
     provides that, if the calculation under 5 U.S.C. § 8452 for a disability annuity rate
     is less than the computation of the appellant’s earned annuity rate under 5 U.S.C.
     § 8415, then OPM must pay the appellant the earned annuity rate. Id. at 6. OPM
     therefore asserted that the Board should reverse the initial decision to the extent
     that it foreclosed the recovery of the $20,505 overpayment. Id. OPM noted that
     this amount was less than the overpayment that it should have alleged because it
     only included 1 month for the period from April 1, 2010 through April 30, 2011,
     but asserted that this was the amount certain that it had established on appeal. Id.
¶6         The Board vacated the initial decision and remanded the appeal for further
     adjudication.   Lusk v. Office of Personnel Management, MSPB Docket No.
     DE-0845-15-0178-I-1, Remand Order (Sept. 11, 2015) (Remand Order).
     Specifically, we found that the record did not allow us to determine whether OPM
     had proven an amount certain and thus remanded the appeal to: (1) allow OPM to
     submit additional evidence and argument regarding how it calculated the
     overpayment; and (2) give the appellant the opportunity to present additional
     evidence and argument in response to any submission by OPM. Id. at 7. We also
     found that, to the extent that the appellant was raising the issue of waiver of any
     overpayment and the adjustment of any repayment schedule, if the administrative
     judge found that OPM proved an amount certain in overpayment, he should order
     OPM to issue a reconsideration decision regarding waiver of the overpayment,
     and, if applicable, the adjustment of the repayment schedule. Id.
¶7         On remand, on October 6, 2015, the administrative judge ordered OPM to
     submit additional evidence and argument regarding how it calculated the
     overpayment no later than October 21, 2015, and stated that the appellant may,
     but was not required to, respond to OPM’s submission no later than November 2,
     2015. Remand File (RF), Tab 2. OPM responded. RF, Tab 4. However, the
     appellant did not respond. The administrative judge issued an initial decision
     finding that OPM met its burden of establishing the amount of the overpayment
                                                                                       5

      by preponderant evidence.     RF, Tab 5, Remand Initial Decision (RID) at 7.
      Specifically, he found that OPM established that the appellant was overpaid
      $30,261 and thus he concluded that the agency met its burden of establishing, by
      a preponderance of the evidence, the lesser amount of $20,505.     Id.   He also
      found that OPM must issue a reconsideration decision regarding the issues of
      waiver of the overpayment and/or the adjustment of the repayment schedule. Id.
¶8         The appellant has filed a timely petition for review. Remand Petition for
      Review (RPFR) File, Tab 1. OPM has responded in opposition to the appellant’s
      petition. RPFR File, Tab 4.

                     DISCUSSION OF ARGUMENTS ON REVIEW
¶9         The appellant argues on review that the new documentation submitted by
      OPM did not comply with the Board’s order to explain the gaps or inconsistencies
      in its records and that the hearsay evidence provided by OPM is inherently
      unreliable, untrustworthy and noncredible and should therefore be inadmissible.
      RPFR File, Tab 1 at 5, 9-10. These are not arguments that the appellant raised
      below, and therefore, the Board need not consider them for the first time on
      review. See Banks v. Department of the Air Force, 4 M.S.P.R. 268, 271 (1980).
¶10        However, even if we did consider these arguments, they would not provide
      a basis for disturbing the initial decision.   On remand, OPM submitted an
      explanation of how it computed the appellant’s annuity, a payment history from
      SSA, a part-time computation worksheet, and a corrected paid and due
      calculation. RF, Tab 4 at 4-9. We find that this evidence is responsive to the
      Board’s remand order. Specifically, the order stated that we could not discern
      how OPM calculated an average salary of $49,648, Federal service of 20 years
      and 9 months, and a .98 part-time proration factor and thus we could not
      determine whether OPM proved an amount certain. Remand Order at 6-7. We
      find that this information is responsive, because, along with the salary
      information from the appellant’s individual retirement record, it is possible to
                                                                                          6

      calculate her average pay, her years of service, and her part-time proration factor.
      IAF, Tab 4 at 33-37; see 5 U.S.C. § 8401(3).
¶11        Additionally, to assail hearsay evidence, an appellant needs to offer specific
      inaccuracies or discrepancies, show the material was not routinely made in the
      ordinary course of business, or establish the material is inherently unreliable,
      untrustworthy,   or   noncredible.      See   Wisecup    v.   Office   of   Personnel
      Management, 30 M.S.P.R. 191, 193-94, aff’d, 809 F.2d 790 (Fed. Cir. 1986)
      (Table). The appellant asserts that OPM submitted paid and due calculations that
      were prepared specifically for litigation, contradict one another, and do not show
      what OPM actually paid to her. 2 RPFR File, Tab 1 at 10. However, a master
      printout and other documents produced by OPM in the ordinary course of
      business are sufficient to establish by a preponderance of the evidence that the
      appellant was overpaid.     See Harris v. Office of Personnel Management, 55
      M.S.P.R. 21, 23 (1992). These calculations, which would have been prepared in
      the ordinary course of business, were corrected to reflect that the appellant was
      paid for 13 months between April 1, 2010 through April 30, 2011, RF, Tab 4 at 9,
      as opposed to the prior paid and due calculations that showed that she was paid
      for 1 month during that time, IAF, Tab 4 at 8.            This correction does not
      demonstrate that the paid and due calculation is otherwise unreliable.      Thus, the
      appellant’s general argument that this evidence does not “actually show what has
      been paid,” RPFR File, Tab 1 at 10, also does not provide a basis for discrediting
      the evidence.




      2
        The appellant cites Levine v. Office of Personnel Management, 72 M.S.P.R. 549, 552
      (1996), in which the Board found that, where an annotated computer printout submitted
      by OPM did not contain entries for the annuity that accrued for a certain time period,
      OPM’s representative’s unsworn pleading did not establish an overpayment for that
      period. RPFR File, Tab 1 at 10. We find that Levine is not applicable here because
      OPM is not seeking to recover an overpayment for a period not covered by its paid and
      due calculations.
                                                                                          7

¶12         Furthermore, we agree with the administrative judge that OPM established
      the existence and amount of the overpayment. ID at 5-7. OPM has the burden of
      proving, by a preponderance of the evidence, 3 the existence and amount of an
      overpayment. Vojas v. Office of Personnel Management, 115 M.S.P.R. 502, ¶ 10
      (2011); 5 C.F.R. § 845.307(a).       OPM submitted a paid and due calculation
      indicating that it paid the appellant $2,482 per month from April 1, 2009 to
      March 30, 2010, and $1,654 per month from April 2010 to April 2011, for a total
      of $51,286, when it should have paid her $841 per month in annuity benefits
      during this period for a total of $21,025, thus resulting in a $30,261 overpayment.
      RF, Tab 4 at 9.
¶13         We find that the values in the paid and due calculation are supported by the
      record. OPM computed the appellant’s average pay as $49,648. Id. at 5. This
      computation is supported by the individual retirement record that OPM previously
      submitted, id. at 34-36, along with the part-time computation that OPM submitted
      on remand, id. at 8. See 5 U.S.C. § 8415(a),(g). OPM further explained that,
      consistent with 5 U.S.C. § 8452(d)(1), it used the appellant’s earned annuity rate
      in its calculation of her monthly annuity benefit, as computed under 5 U.S.C.
      § 8415, as opposed to her disability retirement annuity rate, because her earned
      annuity rate was greater.    RF, Tab 4 at 4.     OPM stated that it calculated the
      appellant’s monthly earned annuity rate as follows:        $49,648 (the appellant’s
      average annual salary) x 20.75 (retirement factor reflecting the appellant’s 20
      years and 9 months of service) x 1% (the appellant’s earned rate under 5 U.S.C.
      § 8415) x .98 (the appellant’s part-time proration factor consistent with 5 U.S.C.
      § 8415(g)(1)(B)) = $10,095 ÷ 12 months = $841 (the appellant’s new monthly
      rate). RF, Tab 4 at 5-6. These inputs also are supported by the record. IAF,


      3
       A preponderance of the evidence is that degree of relevant evidence that a reasonable
      person, considering the record as a whole, would accept as sufficient to find that a
      contested fact is more likely to be true than untrue. 5 C.F.R. § 1201.4(q).
                                                                                        8

      Tab 4 at 33-37; RF, Tab 4 at 8.          Accordingly, the record supports OPM’s
      determination that it should have paid the appellant $841 per month in FERS
      disability annuity benefits for a total of $21,025 for the period from April 1, 2009
      to March 30, 2010. Instead, OPM paid the appellant $51,286, resulting in an
      overpayment of $30,261. RF, Tab 4 at 9. Thus, we agree with the administrative
      judge that, even though the amount OPM seeks to recover appears to be less than
      the total overpayment, OPM has met its burden of establishing that the appellant
      received the $20,505 overpayment.           See Grasso v. Office of Personnel
      Management, 76 M.S.P.R. 299, 301 (1997) (holding that, where OPM shows that
      an annuitant received an overpayment in an amount certain for a period covered
      by the reconsideration decision under appeal, it may recover that amount, even if
      the amount is less than the total overpayment amount claimed in the
      reconsideration decision).
¶14        We have considered the appellant’s argument that the overpayment amount
      should be offset by the attorney’s fees she has incurred. RPFR File, Tab 1
      at 13-15. However, as previously stated, the appellant has cited no authority, and
      we can find none, for the proposition that she is entitled to such a reduction in
      repaying any overpayment based upon her payment of attorney’s fees and costs.
      See 5 U.S.C. § 8452.
¶15        We also have considered the appellant’s arguments on review that: (1) she
      is entitled to waiver of the overpayment; (2) recovery would be unconscionable
      under the circumstances; and (3) if the overpayment is not waived, the repayment
      schedule should be adjusted. RPFR File, Tab 1 at 11-12. However, the Board
      does not have jurisdiction over the issues of waiver and/or adjustment of the
      repayment schedule because OPM did not issue a final reconsideration decision
      regarding    those     issues.     See    Godbout    v.    Office   of   Personnel
      Management, 466 F.3d 1375, 1379 (Fed. Cir. 2006). Therefore, we agree with the
      administrative judge that it is necessary for OPM to issue a reconsideration
      decision and we FORWARD to OPM the appellant’s claim regarding her possible
                                                                                  9

entitlement to a waiver of the overpayment and adjustment of a repayment
schedule. See, e.g., Ruskin v. Office of Personnel Management, 73 M.S.P.R. 544,
551 (1997).

                NOTICE TO THE APPELLANT REGARDING
                   YOUR FURTHER REVIEW RIGHTS
      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

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 U.S. 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 U.S. 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
                                                                               10

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:                           ______________________________
                                         William D. Spencer
                                         Clerk of the Board
Washington, D.C.
