                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     LAUREL A. PETTRESS,                             DOCKET NUMBER
                   Appellant,                        CH-0845-15-0420-I-1

                  v.

     OFFICE OF PERSONNEL                             DATE: April 12, 2016
       MANAGEMENT,
                   Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Laurel A. Pettress, Detroit, Michigan, pro se.

           Kristine Prentice, 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 $20,889.40 in annuity benefits under the
     Federal Employees’ Retirement System (FERS), but modified the OPM


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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     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, which is now the Board’s
     final decision. 5 C.F.R. § 1201.113(b).
¶2        The appellant filed an appeal of OPM’s reconsideration decision, which
     found that she was overpaid $20,889.40 in annuity benefits under FERS and that
     she was not entitled to a waiver of the overpayment. Initial Appeal File (IAF),
     Tab 1. It is undisputed that the appellant was separated for disability retirement
     on November 22, 2010, by her employing agency, the U.S. Postal Service. IAF,
     Tab 5.   While the appellant’s pay ceased on that date, she received disability
     benefits from the Office of Workers’ Compensation Programs (OWCP) from
     November 22 to December 2, 2010.          IAF, Tab 5 at 6.      In a letter dated
     November 16, 2010, OPM granted the appellant’s application for disability
     retirement and advised her that she was required to apply for social security
     benefits. Id. at 78-139. OPM’s letter also explicitly notified the appellant that
     her social security checks should be set aside until the FERS annuity had been
     properly reduced and that those checks would be needed to pay OPM for the
     reduction that should have been made in the FERS annuity. Id. at 79. In a letter
     dated September 10, 2012, OPM notified the appellant that it had received
                                                                                        3

     information that she became entitled to social security benefits effective
     December 3, 2010. Id. at 61-62. OPM advised the appellant that her annuity had
     been adjusted because of her social security benefits and that, as a result, she had
     been overpaid $20,889.40, and it notified her that her repayment schedule would
     consist of 80 monthly payments of $257.97 with a final payment of $251.80. Id.
¶3           The appellant requested reconsideration of OPM’s decision, and she
     requested a waiver of the overpayment. Id. at 59-60. The appellant submitted
     two Financial Resources Questionnaires (FRQ), dated October 13, 2012, and
     March 17, 2015, respectively, both forms showing that her average monthly
     expenses exceeded her average monthly income. 2 Id. at 10-12, 16-20. OPM’s
     reconsideration decision affirmed the overpayment and found that the appellant
     was not entitled to a waiver of the overpayment.       Id. at 6-9.   However, OPM
     adjusted the repayment schedule to 139 monthly payments of $150.00 and one
     final payment of $39.40. Id. at 9.
¶4           On appeal, the appellant asked the Board to waive recovery of the
     overpayment because of financial hardship.       IAF, Tab 1.   While the appellant
     initially requested a hearing, she withdrew that request, and the administrative
     judge decided the case on the written record. IAF, Tab 12, Initial Decision (ID)
     at 1; IAF, Tab 10.     The administrative judge found that OPM established the
     existence and amount of the overpayment, $20,889.40, and that the appellant
     was not entitled to waiver of collection of the overpayment under the set-aside
     rule.    ID at 4-7.   However, the administrative judge found that, because the
     overall record indicates that the appellant’s average monthly expenses exceeded


     2
       There was a substantial difference between the appellant’s FRQ forms. The 2012 FRQ
     lists her average monthly income as $1,813.00 and her average monthly expenses as
     $1,720.00, while the 2015 FRQ lists her average monthly income as $2,372.00 and her
     average monthly expenses as $3,363.00. On the 2015 FRQ her average monthly taxes
     are identified as $1,500.00, while there were no taxes included on the 2012 FRQ. IAF,
     Tab 5 at 10-12, 16-20.      The appellant did not provide any explanation for the
     differences between the 2012 and 2015 FRQs.
                                                                                      4

     her average monthly income, further reduction in the monthly repayment schedule
     was reasonable.    ID at 9.     The administrative judge adjusted the repayment
     schedule to 278 payments of $75.00 per month with a final payment of $39.40.
     ID at 9. Thus, she affirmed OPM’s reconsideration decision as modified.
¶5        On review, the appellant appears to challenge the existence and the amount
     of the FERS overpayment. Petition for Review File, Tab 1. In this connection,
     the appellant asserts for the first time on review that, because of her injury, her
     attendance at work was sporadic from June 2008 until her retirement and that,
     while she was on OWCP’s rolls for some of that period, she was not being
     compensated by OWCP.          As a result, she contends that some of the payroll
     information may have been incorrect and she does not think that she was
     overpaid. Id.
¶6        However, because the appellant failed to raise this argument below and she
     has made no showing that it is based on new and material evidence not previously
     available despite her due diligence, we need not address it for a first time on
     review. See Banks v. Department of the Air Force, 4 M.S.P.R. 268, 271 (1980).
     Moreover, the applicable law and the record evidence support the administrative
     judge’s findings that OPM established the existence and amount of the
     overpayment with the “Paid and Due Calculation” provided to the appellant with
     the overpayment notice, as well as the Explanation of Disability Annuity
     Computation. ID at 4. Therefore, we discern no reason to disturb these explained
     findings.   See Crosby v. U.S. Postal Service, 74 M.S.P.R. 98, 105-06 (1997)
     (finding no reason to disturb the administrative judge’s findings where she
     considered the evidence as a whole, drew appropriate inferences, and made
     reasoned    conclusions);   Broughton v.   Department    of   Health   &   Human
     Services, 33 M.S.P.R. 357, 359 (1987) (same).
¶7        Finally, although the appellant does not challenge the adjusted repayment
     schedule, we have reviewed the administrative judge’s determination to adjust
     OPM’s repayment schedule from 139 monthly payments of $150.00 and 1 final
                                                                                  5

payment of $39.40 to 278 payments of $75.00 per month with a final payment of
$39.40, and we agree with the administrative judge that, based on the appellant’s
average monthly income and expenses, the reduction in the repayment schedule is
warranted. Thus, we have found no basis upon which to disturb the adjusted
repayment schedule.

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