                      NOTE: This disposition is nonprecedential.


United States Court of Appeals for the Federal Circuit
                                        2008-3169

                                  TRACY A. BALDWIN,

                                                           Petitioner,

                                             v.

                      OFFICE OF PERSONNEL MANAGEMENT,

                                                           Respondent.


      Tracy A. Baldwin, of Palatine, Illinois, pro se.

      J. Reid Prouty, Trial Attorney, Commercial Litigation Branch, Civil Division,
United States Department of Justice, of Washington, DC, for respondent. With him on
the brief were Gregory G. Katsas, Acting Assistant Attorney General; Jeanne E.
Davidson, Director; and Brian M. Simkin, Assistant Director.

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                         NOTE: This disposition is nonprecedential.

United States Court of Appeals for the Federal Circuit


                                         2008-3169


                                   TRACY A. BALDWIN,

                                                      Petitioner,

                                                 v.

                       OFFICE OF PERSONNEL MANAGEMENT,

                                                      Respondent.


   Petition for review of the Merit Systems Protection Board in CH-0845-07-0209-I-1.


                            ____________________________

                                DECIDED: July 9, 2008
                            ____________________________


Before LOURIE, BRYSON, and PROST, Circuit Judges.

PER CURIAM
                                         DECISION

       Tracy A. Baldwin appeals from the final decision of the Merit Systems Protection

Board (“Board”) sustaining the Office of Personnel Management’s (“OPM”) decision to

collect $50 per month from her Federal Employee Retirement System (“FERS”)

payment in order to recoup an overpayment of her retirement annuity. Baldwin v. Office

of Pers. Mgmt., CH-0845-07-0209-I-1 (M.S.P.B. Dec. 19, 2007). Because Baldwin fails

to identify any basis for reversal, we affirm.
                                      BACKGROUND

       On June 20, 2005, OPM awarded Baldwin a disability retirement annuity. In its

letter awarding her the annuity, OPM informed Baldwin that she was required to apply

for Social Security Administration (“SSA”) disability benefits. In addition, OPM stated

that “[f]ederal retirement law requires [her] disability benefits under the FERS be

reduced by 100 percent of [her] Social Security benefit for any month in which [she is]

entitled to Social Security disability benefits during the first twelve months of eligibility.”

Moreover, the letter stated that “[b]ecause FERS disability benefit must be reduced by

100% of any Social Security benefit payable for 12 months, Social Security checks

should not be negotiated until the FERS benefit has been reduced.”

       Baldwin was awarded a monthly SSA disability benefit, effective December 1,

2005. From December 2005 to May 2006, Baldwin was paid both the SSA disability

benefit and the full FERS amount, yielding a total overpayment of $8,892.00. OPM

informed Baldwin that it intended to collect the overpayment.            On June 20, 2006,

Baldwin requested reconsideration of OPM’s decision to collect overpayment, or, in the

alternative, requested a waiver of the overpayment collection. On December 19, 2006,

OPM denied Baldwin’s request and concluded that she was not entitled to a waiver. In

light of the financial hardship that the collection of overpayment would cause, however,

OPM proposed collecting 177 monthly installments of $50, plus a final installment of

$42, with no interest. Baldwin appealed to the Board.

       On March 28, 2007, the Administrative Judge (“AJ”) upheld the OPM’s decision

to collect the overpayment. Baldwin v. Office of Pers. Mgmt., CH-0845-07-0209-I-1

(M.S.P.B. Mar. 28, 2007) (“Initial Decision”). The AJ found that OPM had established



2008-3169
                                          -2-
the existence and amount of the overpayment. The AJ further found that Baldwin was

not entitled to a waiver because she was put on notice that if she received SSA

disability benefits, she should set aside money to repay OPM. Because Baldwin failed

to set aside the funds, the AJ concluded that she was not entitled to a waiver. In

addition, the AJ determined that the repayment schedule would not impose a financial

hardship on Baldwin and thus need not be adjusted.

      Baldwin appealed the AJ’s decision to the full Board, which denied her petition for

review, thereby rendering the AJ’s decision final. See 5 C.F.R. § 1201.113. Baldwin

timely appealed to this court. We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(9).

                                     DISCUSSION

      The scope of our review in an appeal from a decision of the Board is limited. We

must affirm the Board’s decision unless it was “(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 been followed; or (3) unsupported by

substantial evidence.” 5 U.S.C. § 7703(c) (2000); see Briggs v. Merit Sys. Prot. Bd.,

331 F.3d 1307, 1311 (Fed. Cir. 2003).

      On appeal, Baldwin primarily asserts that the Board erred in determining that

she was not entitled to a waiver of the overpayment. In particular, Baldwin asserts that

the Board failed to consider that she was “completely without fault” and failed to take

into account her financial hardship. In response, the government argues that the Board

carefully considered all relevant facts and correctly applied the law in upholding the

OPM’s decision.




2008-3169
                                        -3-
       We agree with the government. Under FERS, an individual may be entitled to

waiver of payment if certain conditions are satisfied.      In particular, the governing

statutory provision provides that:

       Recovery of payments under subchapter II, IV, or V of this chapter may
       not be made from an individual when, in the judgment of the Office, the
       individual is without fault and recovery would be against equity and good
       conscience.

5 U.S.C. § 8470(b) (emphasis added). Here, the AJ determined that Baldwin failed to

satisfy either prong. First, the AJ found that Baldwin was “not entirely without fault in

causing or contributing to the overpayment” because OPM specifically advised her “in

its letter approving her disability retirement to set aside any SSA benefits to offset any

potential FERS annuity overpayment.” Initial Decision at 4. Baldwin was thus on notice

that she would not be entitled to a double benefit and should have set aside funds to

cover the overpayment. The AJ found that Baldwin “knew or should have known about

her obligation to set aside the money and repay OPM.” Id. at 5. As such, the AJ

concluded that Baldwin was not entirely without fault. We find that conclusion to be

supported by substantial evidence in the record.

       Second, the AJ considered financial hardship that may result from repayment.

The AJ considered Baldwin’s completed Financial Resources Questionnaire and

determined that some of her expenses, including her automobile payment and gas

expenses, were excessive and could be reduced. Moreover, the AJ noted that the

repayment schedule had already been reduced by OPM and that Baldwin failed to

explain what she did with the overpayment she had received. Thus, the AJ found that,

based on her reported expenses and the adjustments that could be made to her current




2008-3169
                                        -4-
expenses, Baldwin failed to demonstrate financial hardship.        We likewise find that

conclusion to be supported by substantial evidence.

      We thus conclude that the AJ properly concluded that Baldwin was not entitled to

a waiver. Accordingly, because Baldwin fails to identify any reversible error, we affirm.

                                         COSTS

      No costs.




2008-3169
                                        -5-
