NOTE: Pursuant to Fed. Cir. R. 47.6, this disposition is not citable as precedent. It is a public record. 

## United States Court of Appeals for the Federal Circuit

06-3122

JOSEPH M. CHIRONNO, Petitioner,

v. OFFICE OF PERSONNEL MANAGEMENT, Respondent.

__________________________ DECIDED: September 14, 2006

__________________________

Before NEWMAN, LOURIE, and RADER, Circuit Judges

. NEWMAN, Circuit Judge

.

Mr. Joseph M. Chironno petitions for review of the ruling of the Merit Systems Protection Board ("Board") affirming the decis ion of the Office of Personnel Management ("OPM") that Mr. Chironno was required to r epay an overpayment in the total amount of $57,930.00 of disability annuity benefits that he received under the Federal Employees06-3122 2 Retirement System ("FERS"), because he rece ived a comparable sum from the Social Security Administration ("SSA"). We affirm

. BACKGROUND Mr. Chironno was born on Apr il 19, 1965. On September 13, 1998 OPM approved his application for disability re tirement under FERS. OPM informed Mr. Chironno that (1) the annuity payments would not commence unt il OPM received confirmation that Mr. Chironno had applied for Social Security benefit s; (2) if the SSA awarded Mr. Chironno monthly disability benefits, he must notify OPM; (3) while Mr. Chironno is under age 62, federal retirement law requires that his di sability payment under t he FERS be reduced by 100% of his Social Security payment for any month in which Mr. Chironno is entitled to Social Security disability benef its. Mr. Chironno was 33 years old at the time of his disability retirement. The SSA initially rejected Mr. Chironno's applic ation for benefits, but on October 17, 2003 SSA found that Mr. Chironno was disabled under SSA rules as of May 1, 1996. On January 5, 2004 the SSA paid Mr. Chironno $66,811.75 in retroactive SSA disability benefits, with monthly payment s thereafter of approximatel y $1,651. OPM informed Mr. Chironno that based on his entitlem ent to and payment of Social Security benefits as of May 1, 1996, he had been overpaid $57,930.00 in FE RS payments for the period of May 1, 1996 through September 30, 2004. OPM also notified Mr. Chironno that his FERS monthly annuity would be reduced to $134.00 beginning Novem ber 1, 2004, in view of his monthly Social Security payments. In November 2004 Mr. Chironno filed a reques t for waiver of recovery of the overpayment based upon financial hardship and inability to pay. On February 10, 2005,06-3122 3 OPM affirmed its determination of overpaymen t, rejected the requested waiver, and stated its intention to collect t he entire overpayment by deducti on from Mr. Chironno's future monthly annuity in 551 monthly payments of $105.00 each and one final deduction of $75.00. The Board affirmed OPM's decision, and Mr. Chironno appeals. DISCUSSION A decision of the Board is reviewed to dete rmined if it was arbitr ary, capricious, an abuse of discretion, or other wise not in accordance with la w; obtained without procedures required by law, rule, or regulation; or unsupported by substantial evidence. See 5 U.S.C. §7703(c); Cheeseman v. Office of Personnel Mgmt. , 791 F.2d 138, 140 (Fed. Cir. 1986). Mr. Chironno argues that the Board erred by failing to take into account his financial hardship and inability to pay. T he Board reviewed Mr. Chironno's recent checking account statements, and found that he had an average daily balance of $1,485.00 from January 19, 2005 through February 14, 2005 and $1,035.00 from February 15, 2005 through March 16, 2005. Mr. Chironno did not provide other request ed records to the Board, such as credit card statements and loan information. We have not been directed to evidence showing financial hardship flowing from the monthly recovery of $105.00. Although Mr. Chironno argues that it would be unconscionable to r equire repayment because he and his family need the money for basic necessities, the Board f ound that he failed to prove that requiring repayment would be unconscionable. Hemphill v. Office of Personnel Mgmt. , 215 F.3d 1343 (Fed. Cir. 1999). Although the applicable standar d is not whether the requirement of repayment is "unconscionable," but merely whether financial hardship has been shown, Moravec v. Office of Personnel Mgmt. , 393 F.3d 1263, 1269 (Fed. Cir. 2004), the record contains substantial evidence to support t he Board's determination that Mr. Chironno had06-3122 4 not established financial hardship and inab ility to accommodate the amount of the repayment. The Board's determination must be affirmed. No costs.