UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

BUDEIA V. BASS,

Appellant,

v.

OFFICE OF PERSONNEL 

MANAGEMENT,

Agency.

DOCKET NUMBER

NY-0845-17-0098-I-1

DATE: June 8, 2023

THIS ORDER IS NONPRECEDENTIAL1

Budeia V. Bass, New York, New York, pro se.

Carla Robinson, Washington, D.C., for the agency.

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, Member

REMAND ORDER

¶1 The appellant has filed a petition for review of the initial decision, which 

affirmed the final decision of the Office of Personnel Management (OPM) finding 

that she had been overpaid in disability retirement benefits and that collection of 

the overpayment would not be waived. Generally, we grant petitions such as this 

 

1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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).
2

one only in the following circumstances: 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. We AFFIRM the initial 

decision as to the existence and amount of the overpayment and the waiver issue . 

However, for the reasons discussed below, we REMAND the case to the field

office for further adjudication concerning the collection schedule. 

BACKGROUND

¶2 On February 2, 2017, OPM issued a final decision notifying the appellant

that she had received a Federal Employees’ Retirement System (FERS) disability 

retirement annuity overpayment, which OPM intended to collect. IAF, Tab 7 

at 9-12. Specifically, OPM found that the appellant began receiving her FERS

disability retirement annuity effective August 16, 2007, and became entitled to 

Social Security Disability Insurance benefits effective December 1, 2007, on 

which date the FERS annuity should have been reduced by a statutorily required 

amount. Id. at 9. However, OPM did not reduce the FERS annuity until 

September 1, 2013, and as a result, it had overpaid the appellant a total of 

$67,425.00 in FERS disability retirement annuity. Id. at 9-10. OPM notified the 

appellant that it intended to collect the overpayment in 71 monthly installments of 

$142.99 and a final installment of $76.71. Id. at 12.
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¶3 The appellant appealed OPM’s final decision to the Board, alleging that she 

did not know that she was receiving an overpayment and seeking a waiver of 

recovery based on OPM’s 81-month delay in reducing her annuity. IAF, Tabs 1, 

5. She waived her right to a hearing. IAF, Tab 1 at 1. 

¶4 After the record closed, the administrative judge issued an initial decision 

affirming OPM’s final decision. IAF, Tab 10, Initial Decision (ID). She found 

that OPM proved the existence and amount of the overpayment and that the 

appellant did not prove entitlement to waiver of recovery of the debt. ID at 3-5. 

She further found that OPM notified the appellant of her obligation to set aside 

any monies received from the Social Security Administration. ID at 4. The 

administrative judge also found that, while the appellant’s medical conditions 

rendered her incapable of continuing in the workforce, the appellant did not 

demonstrate that her medical conditions were so severe that she was unable to 

understand OPM’s guidance. Id. Therefore, the appellant knew or should have 

known that she was receiving erroneous payments from OPM and that she was 

obligated to return that money to OPM. Id. Thus, the administrative judge 

concluded that the appellant should have set aside the Social Security payments 

and she was not eligible for waiver of collection of the overpayment. ID at 5. 

¶5 The appellant has petitioned for review, asserting that the administrative 

judge erred in finding that she did not challenge the amount of the overpayment. 

Petition for Review (PFR) File, Tab 1 at 1. She also contends that the 

administrative judge improperly found that she notified OPM that she received 

Social Security benefits. Id. Additionally, the appellant contends that her 

medical documentation was disregarded. Id. OPM has not responded to the 

petition. 

ANALYSIS

¶6 OPM bears the burden of proving by preponderant evidence the existence 

and amount of an annuity overpayment. Vojas v. Office of Personnel 
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Management, 115 M.S.P.R. 502, ¶ 10 (2011); 5 C.F.R. §§ 845.307(a), 

1201.56(b)(1)(ii). We agree with the administrative judge that OPM satisfied its 

burden in this case. ID at 3. As noted, the appellant asserts that the 

administrative judge erred in finding that she did not challenge the amount of the 

overpayment; according to the appellant, she did so by requesting her disability 

retirement record. PFR File, Tab 1. However, regardless of whether the 

appellant was attempting to challenge the amount of the overpayment, the 

disability retirement record that the appellant was seeking was submitted by OPM 

and is part of the record in this appeal. IAF, Tab 7 at 26-33. The appellant has 

not demonstrated any error in that disability retirement record.

¶7 Recovery of an overpayment in FERS disability retirement benefits will be 

waived when the annuitant is without fault and recovery would be against equity 

and good conscience. 5 U.S.C. § 8470(b); 5 C.F.R. § 845.301; see Spinella v. 

Office of Personnel Management, 109 M.S.P.R. 185, ¶ 6 (2008). Generally, 

recovery is against equity and good conscience when it would cause financial 

hardship, the annuitant can show that because of the overpayment she 

relinquished a valuable right or changed positions for the worse, or recovery 

could be unconscionable under the circumstances. 5 C.F.R. § 845.303; see 

Spinella, 109 M.S.P.R. 185, ¶ 6. The unconscionability standard is a high one 

and the Board will waive recovery of an annuity overpayment based on 

unconscionability under only exceptional circumstances. Spinella, 109 M.S.P.R. 

185, ¶ 7. In considering whether an appellant has established unconscionability, 

the Board will consider all relevant factors under a “totality-of-thecircumstances” approach. Vojas, 115 M.S.P.R. 502, ¶ 22. Those circumstances 

may include, as relevant here, circumstances in which the annuitant’s personal 

limitations, including lack of education, physical or mental disability, or other

factors that would make recovery of the payment manifestly unfair. King v. 

Office of Personnel Management, 114 M.S.P.R. 181, ¶ 20 (2010).
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¶8 We agree with the administrative judge that the appellant did not prove that 

she has such personal limitations that would make recovery of the overpayment 

manifestly unfair. ID at 4. Contrary to the appellant’s contention in her petition 

for review, the administrative judge considered her medical conditions. Id.; PFR 

File, Tab 1. We agree with the administrative judge that, although the appellant’s 

medical conditions rendered her incapable of continuing in the workforce, the 

evidence does not show that that her physical or mental conditions were so severe 

that she was unable to understand OPM’s guidance. Thus, the appellant’s 

conditions do not provide a basis to waive collection of the overpayment. ID at 4. 

The administrative judge’s failure to specifically mention all of the medical 

evidence of record does not mean that she did not consider it in reaching her 

decision. See Marques v. Department of Health and Human Services, 

22 M.S.P.R. 129, 132 (1984), aff’d, 776 F.2d 1062 (Fed. Cir. 1985) (Table). 

¶9 OPM’s Policy Guidelines provide that individuals who know or suspect that 

they are receiving overpayments are expected to set aside the amount overpaid 

pending recoupment, and that, absent exceptional circumstances, recovery in 

these cases is not against equity and good conscience. IAF, Tab 7 at 80, 91 

(Policy Guidelines of the Disposition of Overpayments under the Civil Service 

Retirement System and Federal Employees’ Retirement System § I.C.4); see

Wright v. Office of Personnel Management, 105 M.S.P.R. 419, ¶ 4 (2007). This is 

known as the “set aside rule.”

¶10 We agree with the administrative judge that the appellant in this case was 

subject to the set aside rule, and that OPM notified her of the obligation to set 

aside monies received from the Social Security Administration that constituted 

duplicate payments. ID at 4; IAF, Tab 7 at 46. Additionally, OPM submitted a 

copy of the Social Security Administration’s notice to the appellant that she was 

entitled to a monthly disability benefit. IAF, Tab 7 at 39. It appears that the 

appellant submitted this notice to OPM and her assertion in her petition for 

review that she did not notify OPM that she had received Social Security 
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disability benefits is unavailing. Id. at 38. In sum, the administrative judge 

properly found that the appellant was subject to the set aside rule and thus, she 

was not entitled to waiver of collection of the overpayment.

¶11 Nevertheless, an annuitant who is ineligible for waiver of recovery of an 

overpayment may be entitled to an adjustment in the recovery schedule if she 

shows, based on the information submitted on OPM’s Financial Resources 

Questionnaire (FRQ), that the collection schedule would cause her financial 

hardship. Malone v. Office of Personnel Management, 113 M.S.P.R. 104, ¶ 4 

(2010); 5 C.F.R. § 845.301. Although this pro se appellant has not explicitly 

contested the repayment schedule on petition for review, in her final submission 

below, received after the record closed, she submitted a copy of an FRQ, dated 

October 25, 2016. IAF, Tab 12.2 The appellant asserted that she had submitted 

the FRQ to OPM with her reconsideration request, but that OPM had failed to 

consider this information in formulating the collection schedule. IAF, Tab 7 

at 12, Tab 12 at 7-15. The appellant included evidence that the FRQ had been 

sent to OPM by certified mail on October 26, 2016. IAF, Tab 12 at 15.

¶12 Based on the 2016 FRQ, it appears that the appellant may be unable to make 

repayments as scheduled by OPM without financial hardship. Considering her 

attempt to have OPM consider the FRQ and then, albeit in an untimely 

submission, to provide it below, we find it appropriate to consider whether an 

adjustment of the recovery schedule is warranted. Because more than 6 years 

have passed since the appellant completed the FRQ, it is likely that her financial 

situation has changed, and she should be afforded an opportunity to file additional 

evidence and argument addressing the issue, including an updated FRQ. Thus, 

we remand this appeal to the administrative judge for further adjudication of this

issue.

 

2

The appellant’s final filing was received in the New York Field Office on May 26, 

2017, one day after the administrative judge issued the initial decision and 4 days after 

the date the record closed. IAF, Tab 12.
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¶13 As explained above, the existence and the amount of the overpayment are 

not at issue. Nor is the appellant entitled to a waiver of the collection. The sole 

issue for adjudication on remand will be the collection schedule. 3

ORDER

¶14 For the reasons discussed above, we remand this case to the New York Field

Office for further adjudication in accordance with this Remand Order.

 

 

FOR THE BOARD:

Washington, D.C.

 /s/ for 

Jennifer Everling

Acting Clerk of the Board

 

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The appellant is notified that OPM has advised the Board that it may seek recovery 

from an annuitant’s estate or other responsible party of any debt remaining upon his or 

her death. A party responsible for any debt remaining upon an annuitant’s death may 

include an heir (spouse, child, or other) who derives a benefit from the annuitant’s 

Federal benefits, an heir or other person acting as the representative of his or her estate 

if, for example, the representative fails to pay the United States before paying the 

claims of other creditors in accordance with 31 U.S.C. § 3713(b), or transferees or 

distribute[r]s of the annuitant’s estate. Pierotti v. Office of Personnel Management, 

124 M.S.P.R. 103, ¶ 13 (2016).