       NOTE: This disposition is nonprecedential.


  United States Court of Appeals
      for the Federal Circuit
                ______________________

              NANCY C. WARRENDER,
                    Petitioner

                           v.

    OFFICE OF PERSONNEL MANAGEMENT,
                  Respondent
            ______________________

                      2017-1679
                ______________________

   Petition for review of the Merit Systems Protection
Board in No. DC-0845-15-1135-I-1.
                ______________________

                Decided: July 14, 2017
                ______________________

   NANCY C. WARRENDER, Burlington, NC, pro se.

    FARIDA ALI, Commercial Litigation Branch, Civil
Division, United States Department of Justice, Washing-
ton, DC, for respondent. Also represented by CHAD A.
READLER, ROBERT E. KIRSCHMAN, JR., BRIAN MIZOGUCHI.
                 ______________________

  Before LOURIE, MOORE, and HUGHES, Circuit Judges.
PER CURIAM.
2                                        WARRENDER   v. OPM



    Nancy Warrender appeals from the final order of the
Merit Systems Protection Board (“Board”) affirming the
decision of the Office of Personnel Management (“OPM”)
denying her request for waiver of repayment of a benefit
overpayment paid under the Federal Employee Retire-
ment System (“FERS”). See Warrender v. Office of Pers.
Mgmt., No. DC-0845-15-1135-I-1, 2016 WL 7439441
(M.S.P.B. Dec. 16, 2016) (“Final Order”). For the reasons
that follow, we affirm.
                      BACKGROUND
    Ms. Warrender, a former employee of the Internal
Revenue Service (“IRS”), was approved by OPM for FERS
disability retirement benefits on January 10, 2006.
OPM’s award letter advised her that she was required to
apply for Social Security Administration (“SSA”) disability
benefits, provide proof that she had applied for SSA
disability benefits, and notify OPM of any SSA disability
benefits received.
    OPM sent Ms. Warrender another letter on March 16,
2006, inquiring into the status of her SSA benefits appli-
cation and reminding her that OPM was required to
deduct all or part of any SSA benefits from the FERS
benefit. The March 16, 2006 letter also advised Ms.
Warrender that she should set aside any overpayment
based on her receipt of SSA disability benefits because
she was legally required to repay that money to OPM.
Ms. Warrender responded to the March 16, 2006 letter,
informing OPM only that she had filed a reconsideration
appeal at the SSA for its initial denial of her benefits
application.
    By letter dated March 16, 2015, OPM notified Ms.
Warrender that it had determined that she became enti-
tled to SSA benefits, effective August 1, 2009, and thus
that she had been overpaid $51,348.00 in civil service
annuity benefits for the period of August 1, 2009 through
the end of February, 2015.
WARRENDER   v. OPM                                       3



    Ms. Warrender requested reconsideration, asking for
a waiver of the overpayment, and OPM issued a decision
on August 4, 2015, affirming its initial decision and
establishing a repayment schedule of 150 monthly in-
stallments of $341.16 and one final installment of
$174.00.
     Ms. Warrender appealed to the Board and on April 12,
2016, an administrative judge issued an initial decision
affirming OPM’s denial of a waiver, but adjusting the
repayment schedule down to 342 monthly payments of
$150.00 and a final installment of $48.00 due to Ms.
Warrender’s financial hardship. See Warrender v. Office
of Pers. Mgmt., No. DC-0845-15-1135–I–1 (M.S.P.B. April
12, 2016) (Resp’t’s App. 45–61) (“Initial Decision”). Ms.
Warrender subsequently filed a petition for review to the
full Board and on December 16, 2016, the Board affirmed
the Initial Decision in its Final Order.
    Ms. Warrender timely appealed. This court has juris-
diction pursuant to 28 U.S.C. § 1295(a)(9).
                       DISCUSSION
     The scope of our review in an appeal from a decision
of the Board is limited. We must affirm the Board’s
decision unless it was “(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 been followed; or (3) unsupported by
substantial evidence.” 5 U.S.C. § 7703(c); see Briggs v.
Merit Sys. Prot. Bd., 331 F.3d 1307, 1311 (Fed. Cir. 2003).
Ms. Warrender bears the burden of proving entitlement to
a waiver of an overpayment by substantial evidence. 5
C.F.R. § 845.307(b) (“Burden of annuitant. The recipient
of an overpayment must establish by substantial evidence
that he or she is eligible for waiver or an adjustment.”).
   On appeal, Ms. Warrender challenges only the
Board’s finding that she does not qualify for a waiver of
4                                         WARRENDER   v. OPM



the overpayment. She argues that the Board erred in not
considering that the “MSPB failed to grant leave
when . . . [her] father died in 2016 and failed to account
[for] form OMB 3206-0167 Part 2 C5& C6.” Pet’r’s Br. 1.
She also asserts that she had applied for a pro bono
attorney and was not provided with one. Finally, she asks
for a waiver of the overpayment due to financial hardship.
    The government responds that the Board’s decision
should be affirmed because Ms. Warrender fails to
demonstrate any error by the Board. The government
asserts that it is unclear how the Board could grant Ms.
Warrender “leave” for the period of time when her father
died or how any such failure to grant leave affected her
claim for an overpayment waiver. Further, the govern-
ment points out that form OBM 3206-0167 contains
neither a “Part 2” nor sections “C5 & C6,” so the Board
could not have erred in not considering those sections.
Finally, the government maintains that substantial
evidence supports the Board’s finding that Ms. Warrender
was not without fault in the overpayment and that OPM’s
recovery would not be against equity and good conscience.
    We agree with the government that the Board proper-
ly affirmed OPM’s decision to deny a waiver. First, we
conclude that the Board applied the correct legal frame-
work in its analysis.
    OPM may recover an overpayment from a recipient
who is not eligible for waiver. See 5 C.F.R. § 831.1401. A
recipient is eligible for waiver if (a) he or she is “without
fault” and (b) “recovery would be against equity and good
conscience.” Id. § 845.301. One who receives an “over-
payment is without fault if he or she performed no act of
commission or omission that resulted in the overpayment.
The fact that the [ ] OPM or another agency may have
been at fault in initiating an overpayment will not neces-
sarily relieve the individual from liability.” Id. § 845.302.
WARRENDER   v. OPM                                         5



OPM is required to consider certain factors when deter-
mining fault:
   (1) Whether payment resulted from the individu-
   al’s incorrect but not necessarily fraudulent
   statement, which he or she should have known to
   be incorrect;
   (2) Whether payment resulted from the individu-
   al’s failure to disclose material facts in his or her
   possession, which he or she should have known to
   be material; or
   (3) Whether he or she accepted a payment that he
   or she knew or should have known to be erroneous.
Id. § 845.302(a) (emphasis added).
     Even if Ms. Warrender “is ineligible for waiver,” she
may still be “entitled to an adjustment in the recovery
schedule if [ ] she shows that it would cause [ ] her finan-
cial hardship to make payment at the rate scheduled.” Id.
§ 845.301. “Financial hardship may be deemed to exist
in—but not limited to—those situations where the annui-
tant from whom collection is sought needs substantially
all of his/her current income and liquid assets to meet
current ordinary and necessary living expenses and
liabilities.” Id. § 831.1404.
   The Board’s analysis complied with the legal frame-
work outlined above. The Board first determined that
Ms. Warrender was not eligible for a waiver because she
knew or should have known of the overpayment, but it
then adjusted the repayment schedule due to her financial
hardship.
    Second, we find the Board’s decision to be supported
by substantial evidence and in accordance with law. The
Board explained that Ms. Warrender “knew or should
have known the payment she received was erroneous”
because she received two letters from OPM expressly
6                                        WARRENDER   v. OPM



stating that she must report the amount of SSA benefits
she receives so that the amount could be deducted from
her FERS annuity. Final Order, 2016 WL 7439441, ¶ 8.
That finding is supported by substantial evidence.
    The record shows that OPM sent Ms. Warrender two
letters, dated January 10, 2006 and March 16, 2006,
expressly informing her that OPM was “required to
deduct all or part of [any] Social Security benefits from
the FERS” and that she should thus “hold” or set aside
any SSA retroactive payment “so that [she would] have
sufficient funds to repay [her] duplicate payment” because
she was “legally required to repay this money to OPM.”
Resp’t’s App. 4–8. Ms. Warrender does not deny that she
received either letter. In fact, she responded to the March
16, 2006 letter, informing OPM that she had filed for a
reconsideration of the SSA’s initial denial of her benefits
application. Id. at 9–10. Thus, the Board properly found
that she knew or should have known of the overpayment.
    Because the Board found that Ms. Warrender knew or
should have known that she received an overpayment, it
then properly determined that the “set-aside rule” applied
to her case. According to the set-aside rule, individuals
who know or suspect that they are receiving overpay-
ments must set aside the amount overpaid pending re-
coupment. See, e.g., Boyd v. Office of Pers. Mgmt., 851
F.3d 1309, 1313–14 (Fed. Cir. 2017). When the set-aside
rule applies, recovery by OPM of the overpayment is “not
against equity and good conscience” and cannot be waived
absent “exceptional circumstances,” which do not include
financial hardship. Id. at 1313 (internal quotation marks
omitted). Thus, the Board found that Ms. Warrender did
not qualify for a waiver.
    That determination was legally sound and is support-
ed by substantial record evidence. Ms. Warrender chal-
lenges the Board’s determination based solely on her
financial hardship. But, as we noted above, financial
WARRENDER   v. OPM                                      7



hardship cannot qualify an individual for a waiver if the
set-aside rule applies—i.e., if she knew or should have
known of the overpayment—as is the case here. Thus, the
Board properly affirmed OPM’s decision denying Ms.
Warrender a waiver from recovery of the overpayment.
    Ms. Warrender does not appear to dispute the Board’s
adjustment of her repayment schedule and, as the Board
noted, even if she did, any request for further adjustment
should be addressed to OPM, as provided by section
V(F)(5) of OPM’s Policy Guidelines. See Martin v. Office
of Pers. Mgmt., 49 M.S.P.R. 134, 137 (1991), aff’d, 960
F.2d 156 (Fed. Cir. 1992).
                      CONCLUSION
    We have considered the remaining arguments but
find them to be unpersuasive. For the foregoing reasons,
we affirm the decision of the Board.
                      AFFIRMED
                         COSTS
   No costs.
