UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

PAMELA A. HEWITT,

Appellant,

v.

OFFICE OF PERSONNEL 

MANAGEMENT,

Agency.

DOCKET NUMBER

DE-0845-16-0051-I-1

DATE: September 21, 2016

THIS FINAL ORDER IS NONPRECEDENTIAL1

Pamela A. Hewitt, Hot Springs, South Dakota, pro se.

Karla W. Yeakle, 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 in Federal Employees’ Retirement System 

(FERS) annuity benefits. Generally, we grant petitions such as this one only 

 1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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).
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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. 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. Except as expressly MODIFIED by this Final Order, 2

we AFFIRM 

the initial decision.

¶2 The appellant appealed OPM’s September 25, 2015 reconsideration decision 

finding that she was overpaid $4,728 in FERS annuity benefits. Initial Appeal 

File (IAF), Tab 1 at 4, Tab 9 at 6-8. The appellant elected early retirement under 

FERS on January 31, 2007. IAF, Tab 1 at 4. She then accepted a position as a 

reemployed annuitant with her former employing agency, the Department of 

Veterans Affairs, serving in that capacity between May 13, 2007, and 

December 17, 2010. IAF, Tab 1 at 4, Tab 10. On July 23, 2010, the appellant 

reached the minimum retirement age of 56, and OPM started paying her an 

annuity supplement of $630 per month effective August 1, 2010. 3

 IAF, Tab 9 

at 42.

 2 We have modified the initial decision to clarify the Board’s basis for exercising

jurisdiction over this appeal.

3 The annuity supplement of $630 per month represents what the appellant would have 

received for the portion of her Social Security benefits attributable to her creditable 

FERS civilian service had she been eligible to receive Social Security benefits when she 

retired. IAF, Tab 9 at 42; see 5 C.F.R. § 842.504.
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¶3 OPM reduced the appellant’s annuity supplement to $236 per month after 

receiving information about her 2010 earnings from the Social Security 

Administration (SSA), which showed her W-2 earnings for that year as $53,795. 

IAF, Tab 13 at 4, 6. Her earnings exceeded $14,160, the amount she would have 

been allowed to earn for Social Security purposes during that year. Id. at 4. 

OPM thus found that her annuity supplement from July 1, 2011, through 

June 30, 2012, was too high and calculated her overpayment as $4,728. IAF, Tab 

9 at 23-29. The appellant asked for reconsideration, and OPM affirmed its 

decision. Id. at 21-22. She appealed. IAF, Tab 1. The administrative judge 

found that the appellant had been entitled to receive an annuity supplement after 

July 23, 2010, and that OPM had established the existence and amount of her 

overpayment for the period between July 1, 2011, and June 30, 2012. IAF, 

Tab 16, Initial Decision (ID) at 4-5. The administrative judge decided the appeal 

based on the written record. ID at 1; IAF, Tab 12.

¶4 On review, the appellant argues that she was coerced into waiving her right 

to a hearing. Petition for Review (PFR) File, Tab 1 at 3-4. Because there was no 

hearing, she argues, the administrative judge improperly interpreted the 

governing statutes and regulations, and he did not consider the information she 

submitted. Id. She further argues that, because she did not have a hearing, she 

was unable to question OPM’s representative because that person did not 

participate in the telephonic conferences with the administrative judge. Id. The 

appellant requests that the Board allow her to submit copies of the “laws, 

regulations, and OPM guidance pamphlets” that she believes explain her position, 

as well as her notes regarding the inaccurate statements that she believes the 

administrative judge made. Id.

¶5 The appellant has not identified with specificity any factual or interpretive 

error, and our review of the initial decision shows that the administrative judge 

reached the correct result. We would nevertheless clarify the basis upon which 

we may exercise jurisdiction over this appeal.
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¶6 Citing 5 C.F.R. § 842.505(e), the administrative judge explained that the

reduction in the appellant’s FERS annuity supplement because of her excess 

earnings was not subject to Board review under the due process procedures 

described in 5 U.S.C. § 8461(e). ID at 3-4. The administrative judge stated that 

he would review the appeal based on the Board’s jurisdiction over appeals from 

final OPM decisions that affect individuals’ rights and interests under FERS. ID 

at 1; 5 U.S.C. § 8461(e)(1); 5 C.F.R. § 845.204(c)(2). In some appeals brought 

on that basis, however, the Board has found that it lacked jurisdiction because the 

overpayment was related to a nonappealable matter. See, e.g., Campbell v. Office 

of Personnel Management, 90 M.S.P.R. 68, ¶¶ 9-10 (2001) (finding that the Board 

lacked jurisdiction over the appeal because an overpayment resulted from a 

change in the terms of the appellant’s life insurance coverage); Mitchell v. Office 

of Personnel Management, 25 M.S.P.R. 186, 189 (1984) (explaining that the 

Board lacked jurisdiction to review whether OPM correctly determined that an 

annuity overpayment occurred when the overpayment resulted from a change in 

the appellant’s health insurance coverage and premiums). In contrast, the Board 

found in Miller v. Office of Personnel Management, 99 M.S.P.R. 104, ¶¶ 10-13 

(2005), aff’d, 449 F.3d 1374 (Fed. Cir. 2006), another appeal related to changes 

in an appellant’s life insurance coverage, that it would consider matters related to 

the computation of the appellant’s retirement annuity and to her waiver request.

Here, the appellant raised issues related to the computation of her annuity

supplement. IAF, Tab 14 at 3-4, Tab 15 at 3-4. Additionally, she requested a 

waiver when her case was before OPM, and OPM decided that she was not 

entitled to one. IAF, Tab 9 at 7-8, 21-22. Only these issues fall within the 

Board’s jurisdiction.

¶7 As for the computation of the appellant’s annuity supplement, she argued 

OPM improperly started her annuity supplement during 2010 while she was still a 

reemployed annuitant. IAF, Tab 14 at 3-4, Tab 15 at 3-4. She contended that she 

first qualified for the annuity supplement in January 2011, a few weeks after she 
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left her reemployed annuitant position. IAF, Tab 15 at 3. The appellant, 

however, was entitled to an annuity supplement in 2010 under 5 U.S.C. 

§ 8421(a)(2). The statute states in pertinent part that individuals who retire 

pursuant to section 8414(b) are entitled to such a supplement after they attain 

minimum retirement age. The appellant attained the minimum retirement age of 

56 on July 23, 2010. IAF, Tab 9 at 42. The administrative judge thus properly 

found that she was entitled to an annuity supplement between July 23 and 

December 31, 2010. ID at 4-5.

¶8 As for whether OPM might waive recovery of the overpayment, recovery 

may be waived if the individual is without fault and recovery would be against 

equity and good conscience. 5 U.S.C. § 8470(b); 5 C.F.R. § 845.301. When 

recovery of an overpayment would cause financial hardship, it is against equity 

and good conscience. 5 C.F.R. § 845.303(a). Here, the appellant did not claim 

financial hardship as for the overpayment or the repayment schedule, nor did she

submit a Financial Resources Questionnaire or any other evidence that would 

indicate she needed substantially all of her income and liquid assets to meet her 

current ordinary and necessary living expenses and liabilities. OPM, in its 

reconsideration decision, concluded that she bore some fault for the existence of 

the overpayment and thus was not entitled to a waiver. IAF, Tab 9 at 7-8. We 

agree. The notice the appellant received when her annuity supplement started 

explains that her entitlement to such an annuity was subject to an earnings test 

and might decrease or even be reduced to $0 based on her earnings. Id. at 

42; 5 C.F.R. § 845.302(b).

¶9 The appellant argues on review that the administrative judge improperly 

cited Vojas v. Office of Personnel Management, 115 M.S.P.R. 502, ¶ 10 (2011), 

and Levine v. Office of Personnel Management, 72 M.S.P.R. 549, 551 (1996), 

because these cases do not pertain to the particular circumstances of her appeal. 

PFR File, Tab 1 at 5. The administrative judge, however, properly cited these 

cases for the general proposition that OPM bears the burden of proof in 
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overpayment appeals. ID at 3. As for the statutes and regulations upon which the 

appellant allegedly relied in arguing that OPM’s decision was erroneous, the 

administrative judge explained in detail why certain statutes and regulations do 

not apply in her case. ID at 4. In any event, the appellant failed to frame her 

arguments on review with specificity and to cite particular statutes and 

regulations that she believes OPM and the administrative judge misconstrued.

¶10 Finally, the record does not show that the administrative judge coerced the 

appellant into waiving her right to a hearing. The appellant admits that she 

waived her right to a hearing after the administrative judge explained that a 

hearing was unnecessary because “this case doesn’t have witnesses,” i.e., there 

were no factual disputes, and resolution of the appeal was contingent upon the 

interpretation of the applicable statutes and regulations. PFR File, Tab 1 at 3. In 

the Order Setting Close of the Record, the administrative judge explained that the 

appellant asserted that her pleadings had adequately set forth her position, and 

she thus “voluntarily waived her right to a hearing.” IAF, Tab 12 at 12. The 

appellant did not challenge the administrative judge’s characterization or seek to 

withdraw her waiver in subsequent pleadings. IAF, Tabs 14-15. We thus 

conclude that her argument is thus unavailing. As a result, we affirm the initial 

decision.

NOTICE TO THE APPELLANT REGARDING

YOUR FURTHER REVIEW RIGHTS

The initial decision, as supplemented by this Final Order, constitutes the 

Board’s final decision in this matter. 5 C.F.R. § 1201.113. 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
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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.

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. 
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FOR THE BOARD:

Washington, D.C.

______________________________

Jennifer Everling

Acting Clerk of the Board