NOTE: This disposition is nonprecedential.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NOTE: This disposition is nonprecedential.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