       NOTE: This disposition is nonprecedential.


  United States Court of Appeals
      for the Federal Circuit
                ______________________

                  JIMMY L. MAYE,
                     Petitioner

                           v.

    OFFICE OF PERSONNEL MANAGEMENT,
                  Respondent
            ______________________

                      2015-3052
                ______________________

   Petition for review of the Merit Systems Protection
Board in No. DC-0845-14-0616-I-1.
                ______________________

               Decided: October 9, 2015
               ______________________

   JIMMY L. MAYE, Kinston, NC, pro se.

    RETA EMMA BEZAK, Commercial Litigation Branch,
Civil Division, United States Department of Justice,
Washington, DC, for respondent. Also represented by
JOYCE R. BRANDA, ROBERT E. KIRSCHMAN, JR., SCOTT D.
AUSTIN.
                ______________________
2                                             MAYE   v. OPM




     Before DYK, TARANTO, and HUGHES, Circuit Judges.
PER CURIAM.
     Mr. Maye appeals a final decision of the Merit Sys-
tems Protection Board (“the Board”) affirming a decision
of the Office of Personnel Management (“OPM”) affirming
OPM’s calculation of an annuity overpayment and deny-
ing him a waiver of collection of the overpayment. We
affirm.
                      BACKGROUND
    Mr. Maye is a former employee of the United States
Postal Service. In 2010, Mr. Maye was approved for
disability retirement, and he began receiving interim
payments on a monthly basis as a stop-gap until his
application for disability retirements could be completely
processed and the actual amount of his benefit could be
determined. Mr. Maye was required to apply for Social
Security disability benefits and inform the OPM of any
Social Security benefit that he was awarded. If Mr. Maye
was awarded Social Security benefits, OPM would then
reduce Mr. Maye’s federal employee disability retirement
payments by the amount of Social Security benefit he
received pursuant to 5 U.S.C. § 8452.
    Mr. Maye applied for Social Security Disability and
began receiving Social Security disability benefit pay-
ments in July of 2010. However, OPM was never in-
formed of those payments, and the necessary reductions
were never made. Mr. Maye continued collecting both his
Social Security disability payments and his federal em-
ployee retirement benefits through March of 2012. On
April 21, 2012, OPM sent Mr. Maye a “Special Notice”
notifying him that he had been overpaid by $28,605.44
and that OPM would begin withholding $246.41 from
each future monthly benefit payment until the overpay-
ment was paid back.
MAYE   v. OPM                                             3




    In May, after the first repayment had been withheld
from his check, Mr. Maye challenged OPM’s calculation of
the overpayment and requested a waiver of the collection
of overpayments pursuant to 5 U.S.C. § 8470(b). Ulti-
mately, OPM determined that the calculations were
correct and denied Mr. Maye’s request for a waiver. OPM
did lengthen the schedule for Mr. Maye’s repayment of
the overpayment so that the repayments were spread over
190 months rather than 116.
    Mr. Maye appealed to the Board pursuant to 5 U.S.C.
§ 8461(e)(1), and his appeal was heard by an Administra-
tive Judge (“AJ”) in July of 2014. The AJ found that OPM
had met its burden of proving the existence and amount
of an overpayment. In addition, the AJ found that Mr.
Maye had failed to establish his entitlement to a waiver of
repayment of the overpayment. Mr. Maye then petitioned
the full Board for review, which the Board denied, affirm-
ing the AJ’s decision. Mr. Maye now petitions for review
of the Board’s decision.
     We have jurisdiction pursuant to 28 U.S.C.
§ 1295(a)(9). This court’s authority to review a decision of
the Board is prescribed by statute. Specifically, we must
affirm unless the Board’s decision is “(1) arbitrary, capri-
cious, an abuse of discretion, or otherwise not in accord-
ance 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).
                       DISCUSSION
    Mr. Maye challenges OPM’s calculation of the amount
of overpayment. In cases involving the overpayment of a
retirement annuity, OPM must establish the existence
and amount of an overpayment by a preponderance of the
evidence. 5 C.F.R. § 845.307. The AJ found, as a matter
of fact, that “OPM has proven the existence and amount
of the overpayment,” App. 34, a decision which the full
4                                              MAYE   v. OPM




Board affirmed. We find these determinations to be
supported by substantial evidence.
    Mr. Maye also challenges the decision denying him a
waiver of the collection of the overpayment. Under
5 U.S.C. § 8470(b), recovery of overpayments “may not be
made from an individual when, in the judgment of the
[OPM], the individual is without fault and recovery would
be against equity and good conscience.” The individual
has the burden to demonstrate, by a preponderance of the
evidence, that he or she is eligible for a waiver. 5 C.F.R.
§ 845.307. The AJ found that Mr. Maye had failed to
meet this burden of proof, a decision again affirmed by the
whole Board.
    In the first prong of the waiver determination, the AJ
determined that Mr. Maye was not at fault for the over-
payment. 1 But the AJ found that Mr. Maye had failed to
provide evidence to satisfy this second prong of the test.
We find this factual determination to be supported by
substantial evidence. Under the second prong, an indi-
vidual demonstrates that recovery would be against
equity and good conscience when: “(a) It would cause
financial hardship to the person from whom it is sought;
(b) The recipient of the overpayment can show (regardless
of his or her financial circumstances) that due to the
notice that such payment would be made or because of the
incorrect payment he or she either has relinquished a
valuable right or has changed positions for the worse; or



    1   The OPM letter to Mr. Maye in April stated that
that “we find you are not without fault in causing or
contributing to the overpayment.” App. 28. However, it is
clear from the context that this is a typographical error
and was meant to read “you are not at fault.” In any case,
the AJ found that Mr. Maye was not at fault.
MAYE   v. OPM                                             5




(c) Recovery would be unconscionable under the circum-
stances.” 5 C.F.R. § 845.303.
     Mr. Maye’s own responses to OPM’s financial re-
sources questionnaire show that he had a monthly income
that exceeded his expenses by $500, and Mr. Maye has
not provided any additional evidence as to why repayment
would cause a financial hardship. In addition, Mr. Maye
has not provided any evidence as to how he changed
position in reliance on the overpayment to his detriment,
and in any case Mr. Maye had adequate notice of poten-
tial overpayments in the letter notifying him of his federal
employee disability award and was told not to cash his
Social Security checks until his application for benefits
was processed by OPM. Lastly, Mr. Maye has not provid-
ed any evidence demonstrating unconscionability.
                       AFFIRMED
                          COSTS
   No Costs.
