                      NOTE: This disposition is nonprecedential.


United States Court of Appeals for the Federal Circuit
                                      2008-3131

                               GARY R. ALEXANDER,

                                                            Petitioner,

                                          v.

                     OFFICE OF PERSONNEL MANAGEMENT,

                                                            Respondent.


      Gary R. Alexander, of Ft. Worth, Texas, pro se.

       Armando Rodriguez-Feo, Trial Attorney, Commercial Litigation Branch, Civil
Division, United States Department of Justice, of Washington, DC, for respondent. With
him on the brief were Jeffrey S. Bucholtz, Acting Assistant Attorney General, Jeanne E.
Davidson, Director, and Mark A. Melnick, Assistant Director. Of counsel on the brief
was Jo Ann Chabot, Office of Personnel Management, of Washington, DC.

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                       NOTE: This disposition is nonprecedential.

 United States Court of Appeals for the Federal Circuit
                                        2008-3131

                                 GARY R. ALEXANDER,

                                                        Petitioner,

                                             v.

                       OFFICE OF PERSONNEL MANAGEMENT,

                                                        Respondent.

Petition for review of the Merit Systems Protection Board in DA0845070079-I-1.

                            __________________________

                                DECIDED: July 11, 2008
                            __________________________

Before LINN, Circuit Judge, CLEVENGER, Senior Circuit Judge, and MOORE, Circuit
Judge.

PER CURIAM.

       Gary R. Alexander (“Alexander”) seeks review of a final decision of the Merit

Systems Protection Board (“Board”), which affirmed a determination by the Office of

Personnel Management (“OPM”) that his retirement annuity had been overpaid by

$53,766.89. Alexander v. Office of Pers. Mgmt., No. DA0845070079-I-1 (M.S.P.B. Feb.

27, 2007) (“Decision”), review denied, Alexander v. Office of Pers. Mgmt., No.

DA0845070079-I-1 (M.S.P.B. Dec. 6, 2007). Because the Board correctly concluded

that it lacked jurisdiction to consider waiver of repayment, we affirm.

       Alexander retired from active duty with the U.S. Army in February 1987 and

began drawing military retirement pay. In June 1987, he commenced employment with
the Foreign Service of the U.S. Department of State. In February 1997, Alexander

transferred to employment with the General Services Administration (“GSA”). In August

2001, he accepted early retirement from GSA under the Federal Employees’ Retirement

System (“FERS”). On his retirement application, Alexander marked the box indicating

that he was drawing military retired pay and that he was not waiving that annuity in

order to include his military service in the FERS computation.

      OPM, however, mistakenly included Alexander’s military service when calculating

his FERS annuity, which resulted in a much higher payment than Alexander was

entitled to receive. In 2006, after discovering the error, OPM recalculated Alexander’s

annuity and reduced it. OPM also concluded, based on Alexander’s receipt of the

erroneously high annuity payments over several years, that he had been overpaid by

$53,766.89. OPM indicated that it intended to collect the overpayment.

      Alexander requested reconsideration of OPM’s determination.              Although

Alexander made various contentions relating to additional service credit and the amount

of the overpayment, he did not request a waiver of the overpayment or mark the box on

the OPM form requesting such a waiver. On October 18, 2006, OPM issued its final

decision on Alexander’s request for reconsideration, in which it affirmed the initial

determination that he was overpaid by $53,766.89. Alexander timely appealed. We

have jurisdiction under 28 U.S.C. § 1295(a)(9).

      Our scope of review of Board decisions is defined and limited by statute. See 5

U.S.C. § 7703(c). “The agency’s action in this case must be affirmed unless it is found

to be: (1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance

with law; (2) obtained without procedures required by law, rule or regulation having




2008-3131                               2
been followed; or (3) unsupported by substantial evidence.” Hayes v. Dep’t of the Navy,

727 F.2d 1535, 1537 (Fed. Cir. 1984). “The petitioner bears the burden of establishing

error in the Board’s decision.” Harris v. DVA, 142 F.3d 1463, 1467 (Fed. Cir. 1998).

      On appeal, Alexander does not dispute the overpayment. Rather, he asserts

error in the Board’s failure to “address the issue that OPM would not consider either a

wavier [sic] or an offer of settlement.” As noted above, however, Alexander did not

request a waiver from OPM, and unless specifically requested, OPM has no obligation

to undertake an inquiry into waiver of repayment. Godbout v. Office of Pers. Mgmt., 466

F.3d 1375, 1378 (Fed. Cir. 2006). Because OPM did not reach the issue of waiver, it

was therefore not properly before the Board.      Id. at 1379 (“Because OPM did not

discuss the issue of waiver in its reconsideration letter the Board could not reach the

question of waiver. In simple terms, waiver was not before the Board.”). Therefore, the

Board properly found that it lacked jurisdiction to address waiver of repayment.

Decision at 3 (citing Godbout). The decision of the Board is affirmed.

                                        COSTS

      No costs.




2008-3131                               3
