       NOTE: This disposition is nonprecedential.


  United States Court of Appeals
      for the Federal Circuit
                ______________________

                   PAULA K. LUA,
                     Petitioner

                           v.

     OFFICE OF PERSONNEL MANAGEMENT
                   Respondent
             ______________________

                      2015-3158
                ______________________

   Petition for review of the Merit Systems Protection
Board in No. SF-0845-15-0244-I-1.
                ______________________

              Decided: December 9, 2015
               ______________________

   PAULA K. LUA, Los Angeles, CA, pro se.

   KARA M. WESTERCAMP, Commercial Litigation
Branch, Civil Division, United States Department of
Justice, Washington, DC, for respondent. Also represent-
ed by BENJAMIN C. MIZER, ROBERT E. KIRSCHMAN, JR.,
FRANKLIN E. WHITE, JR.
                  ______________________

    Before LOURIE, BRYSON, and STOLL, Circuit Judges.
2                                               LUA v. OPM




PER CURIAM.
    Paula K. Lua (“Lua”) appeals from the final decision
of the United States Merit Systems Protection Board (the
“Board”) affirming a decision of the Office of Personnel
Management (“OPM”) finding that she had been overpaid
$19,154.83 in annuity benefits under the Federal Em-
ployees’ Retirement System (“FERS”) and that she is not
eligible for a waiver of repayment. See Lua v. Office of
Pers. Mgmt., No. SF-0845-15-244-I-1, 2015 WL 1888712
(M.S.P.B. April 22, 2015). Because the Board did not err
in affirming OPM’s decision, we affirm.
                      BACKGROUND
    Lua worked for the United States Postal Service for
more than eleven years. Respondent’s Appendix (“R.A.”)
35. She was placed on leave without pay on January 27,
2000, and was separated for disability retirement on
September 9, 2001. R.A. 57. Her disability retirement
application was approved in August 2004, and made
effective starting on the day after her last day in a pay
status; that is, January 27, 2000. R.A. 23, 33. OPM
accordingly used her salary on January 26, 2000 to calcu-
late her retroactive and ongoing FERS benefits. R.A. 35.
As a result, Lua received $30,169.25, after taxes, premi-
ums, and insurance, as retroactive benefits for the time
between when she was taken off of pay status and when
she was granted disability retirement, in addition to
ongoing benefits. R.A. 39. Lua was also sent a letter in
August 2004 indicating that she had to notify OPM if she
received social security benefits in the future because any
social security award would reduce her FERS disability
benefits. R.A. 23.
    During a routine check of Social Security Administra-
tion records in April 2014, OPM discovered that Lua had
been receiving social security benefits since October 1,
2011. R.A. 48. Despite the August 2004 letter, Lua failed
to inform OPM that she was receiving those benefits. As
LUA v. OPM                                               3



a result, OPM calculated that it had overpaid Lua
$19,154.83, and sought repayment of that amount.
    As repayment may be waived in certain circumstanc-
es, Lua sought reconsideration of OPM’s determination in
April and May 2014. OPM denied reconsideration, but
offered to reconstitute the collection into 188 monthly
installments of $100.00, and a final installment of $32.08.
R.A. 61.
    Lua did not accept the installment agreement, and in-
stead appealed OPM’s reconsideration decision to the
Board in January 2015. Her case was assigned to Admin-
istrative Judge (“AJ”) Anthony L. Ellison, who previously
issued an initial decision in another case involving Lua.
Lua moved that Judge Ellison be disqualified on the basis
of bias, but that motion was denied.
    The AJ issued an initial decision finding that OPM
had met its burden of establishing the existence and
amount of overpayment, and that Lua knew or should
have known that she received overpayment of benefits.
R.A. 5–11. Specifically, the AJ found that OPM had
established that Lua was receiving both FERS and social
security benefits from October 11, 2011 until April 2014,
and so her FERS benefits should have been reduced. R.A.
7–8. The AJ did not accept Lua’s argument, also raised
here, that OPM had, in fact, underpaid her benefits from
the beginning. R.A. 8–9.
    The AJ also found that Lua was not without fault in
the creation of the overpayment because Lua was notified
in advance of her obligation to inform OPM if she began
receiving social security benefits. R.A. 9–10. Although
Lua claimed not to have received that notification, the AJ
found that she provided no evidence in support of that
claim. R.A. 9. Moreover, although Lua testified at the
hearing that she had not received the August 2004 letter
containing the notification, she had nevertheless
4                                                  LUA v. OPM




acknowledged before the hearing that she had received
the letter. Id.
    Finally, the AJ found that recovery of the overpay-
ment would not be against equity and good conscience
because Lua did not submit an updated financial re-
sources questionnaire to support her financial hardship
claim. R.A. 10–11.
    Lua did not seek review by the full Board, and so the
AJ’s initial decision became the final decision of the
Board. 5 C.F.R. § 1201.113. Lua then 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 Board de-
cision is limited. We can set aside the Board’s decision
only if it was “(1) arbitrary, capricious, an abuse of discre-
tion, 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) (2006); see Briggs v. Merit
Sys. Prot. Bd., 331 F.3d 1307, 1311 (Fed. Cir. 2003).
“Substantial evidence” is “such relevant evidence as a
reasonable mind might accept as adequate to support a
conclusion.” Dickey v. Office of Pers. Mgmt., 419 F.3d
1336, 1339 (Fed. Cir. 2005) (quoting Consol. Edison Co. v.
NLRB, 305 U.S. 197, 229 (1938)).
    Lua does not appear to contest the amount that OPM
calculated as overpayment, but instead argues that
repayment should be waived. The government responds
that the Board correctly determined that Lua is not
eligible for waiver.
    Recovery of an overpayment may be waived only
when “the individual is without fault and recovery would
be ‘against equity and good conscience.’” King v. Office of
Pers. Mgmt., 730 F.3d 1342, 1347 (Fed. Cir. 2013) (quot-
LUA v. OPM                                                 5



ing 5 U.S.C. § 8470(b)). Recovery is against equity and
good conscience (1) when it would cause financial hard-
ship; (2) when the recipient can show that she relin-
quished a right or changed position due to the payment or
notice of payment; or (3) when repayment would be un-
conscionable. Id.; 5 C.F.R. § 845.303. The recipient of the
overpayment bears the burden of establishing by substan-
tial evidence that waiver is appropriate. King, 730 F.3d
at 1348 (citing 5 C.F.R. § 831.1407(b)).
    We agree with the government that substantial evi-
dence supports the Board’s finding that Lua was not
without fault for the overpayment. The Board considered
evidence, in the form of Lua’s testimony at the prehearing
conference, that she had received the letter outlining her
responsibility to report social security benefits should she
receive them. This letter put Lua on notice that such
reporting was necessary. Lua’s lack of action after being
notified led directly to the overpayment; therefore, she
was not without fault.
      Lua also argues that OPM actually underpaid her
from the beginning, because it used January 27, 2000, the
day after her last date on paid status, to calculate her
highest average salary, rather than September 9, 2001,
the day after her date of separation. The government
responds that the regulations allow benefits to begin on
either date, and that its decision to select the earlier date
was not arbitrary or capricious because the earlier date
provided Lua with an additional twenty months of bene-
fits.
    An annuity “commences on the day after the employee
separates or the day after pay ceases and the employee
meets the requirements for title to an annuity.” 5 C.F.R.
§ 844.301 (emphasis added). Accordingly, we agree with
the government that the regulations expressly authorize
beginning Lua’s annuity on January 27, 2000, the day
after her pay ceased. Moreover, the decision to commence
6                                                LUA v. OPM




benefits on that date was not arbitrary or capricious
because it allowed Lua to collect twenty months of bene-
fits to which she would not otherwise have been entitled.
At the time, Lua appeared to recognize that commencing
benefits on that date worked to her advantage, as she did
not object to the situation until OPM requested repay-
ment of overpaid benefits.
    Finally, Lua argues that the AJ was biased against
her. The government responds that Lua has provided
insufficient evidence of bias.
    “[O]pinions formed by the judge on the basis of facts
introduced or events occurring in the course of the current
proceedings . . . do not constitute a basis for a bias or
partiality motion unless they display a deep-seated favorit-
ism or antagonism that would make fair judgment impos-
sible.” Bieber v. Dep’t of Army, 287 F.3d 1358, 1363 (Fed.
Cir. 2002) (emphasis added) (quoting Liteky v. United
States, 510 U.S. 540, 555 (1994)). We agree with the
government’s arguments. Lua does not identify any
statements or evidence that would support a conclusion
that the AJ displayed any kind of favoritism or antago-
nism, and so does not begin to approach the evidentiary
threshold required to show a kind of favoritism or antag-
onism which made fair judgment impossible. The record
in the present case establishes that the AJ applied settled
law to the facts of Lua’s case, and that his conclusions
based on those facts were supported by substantial evi-
dence.
                       CONCLUSION
    We have considered Lua’s remaining arguments, but
find them unpersuasive. For the foregoing reasons, the
decision of the Board is affirmed.
                       AFFIRMED
LUA v. OPM             7



               COSTS
   No costs.
