ROBIN G. BOYD, Petitioner
OFFICE OF PERSONNEL MANAGEMENT, Respondent
for review of the Merit Systems Protection Board in No.
A. CARRANO, Akin Gump Strauss Hauer & Feld LLP,
Washington, DC, argued for petitioner. Also represented by
Ryan S. Stronczer.
E. Lyons, Commercial Litigation Branch, Civil Division,
United States Department of Justice, Washington, DC, argued
for respondent. Also represented by Benjamin C. Mizer, Robert
E. Kirschman, Jr., Elizabeth M. Hosford.
O'MALLEY, Bryson, and WALLACH, Circuit Judges.
BRYSON, CIRCUIT JUDGE.
Robin Boyd was a mail processor for the United States Postal
Service from 1985 to 2010. On March 2, 2011, she applied for
immediate retirement based on disability. She also applied
for disability retirement annuity benefits under the Federal
Employees Retirement System ("FERS").
letter dated June 21, 2011, the Office of Personnel
Management ("OPM") notified Ms. Boyd that it had
approved her application for disability retirement annuity
benefits. The letter explained that OPM would provide her
with monthly interim FERS benefits in the amount of
approximately 80% of her actual FERS benefits. The letter
further explained that Ms. Boyd would not receive FERS
benefits until OPM received confirmation that she had applied
for Social Security disability benefits. The letter directed
Ms. Boyd to apply for Social Security benefits and to notify
OPM when she applied for those benefits.
separate paragraph, the letter contained the following
directive, in boldface type: "If the Social Security
Administration awards you monthly benefits, you must
immediately notify us of the amount and the effective date of
the monthly benefit."
June 21, 2011, letter also explained that Ms. Boyd's FERS
benefits would be offset by any Social Security benefits she
received. The offset for the first year would be 100% of her
Social Security benefits; the offset after the first year
would be 60% of her Social Security benefits. See
also 5 U.S.C. § 8452(a). The letter then stated,
also in boldface type:
Because the FERS disability benefit must be reduced by 100
percent of any Social Security benefit payable for 12 months,
Social Security checks should not be negotiated until the
FERS benefit has been reduced. The Social Security checks
will be needed to pay OPM for the reduction which should have
been made in the FERS annuity.
Boyd admits that she received the June 21, 2011, letter. She
then applied for Social Security benefits and continued
receiving interim FERS benefits.
August 18, 2012, the Social Security Administration advised
Ms. Boyd that she was entitled to monthly Social Security
benefits starting with the month of August 2012. Ms. Boyd
provided a copy of that notice to OPM in September 2012.
not immediately reduce Ms. Boyd's FERS benefits by the
amount of her Social Security benefits. Nor did Ms. Boyd
refrain from negotiating the Social Security checks she
received. Instead, she negotiated the Social Security checks.
Five months later, on January 20, 2013, OPM sent Ms. Boyd a
letter stating that her FERS benefits had been adjusted in
light of the Social Security benefits she had received since
August 2012, and advising her that she had been overpaid for
the months of August 2012 through December 2012 in an amount
totaling $3, 322. The letter stated that OPM would recover
the overpayment by offsetting her FERS benefits in 36 monthly
installments of $92.27 beginning in April 2013.
February 6, 2013, Ms. Boyd requested a waiver of her
obligation to reimburse OPM for the overpayment;
alternatively, she requested a reduced payment schedule based
on financial hardship. To support her request, she enclosed a
completed OPM Financial Resources Questionnaire in which she
detailed her financial condition. Following that request, OPM
refrained from withholding funds from her monthly benefits,
pending resolution of the waiver issue.
letter dated December 8, 2014, OPM advised Ms. Boyd of the
requirements for a waiver of the reimbursement obligation.
OPM informed her that it needed an updated Financial
Resources Questionnaire from her "in order to make a
fair decision on [her] request for waiver of the
Boyd did not send OPM an updated Financial Resources
Questionnaire, and on January 16, 2015, OPM denied her
request for a waiver. The denial letter stated that,
"[b]ased on the evidence of record, including your
written submissions, [OPM] finds that recovery of the
overpayment would not be against equity and good
conscience." However, upon considering Ms. Boyd's
2013 Financial Resources Questionnaire, OPM adjusted her
repayment schedule and reduced the monthly offset by more
than half, from $92 to $40.
pro se, Ms. Boyd appealed OPM's denial to the
Merit Systems Protection Board. In her appeal form, she
elected e-filing and provided an email address to receive
notifications of filings and orders.
February 10, 2015, the administrative judge assigned to Ms.
Boyd's appeal ordered her to submit any evidence and
argument in support of her appeal within 30 days. Ms. Boyd
did not file anything. The administrative judge then issued
an order directing Ms. Boyd to show good cause for her
failure to respond, explaining that absent a response, the
administrative judge would decide the case without a hearing
and based solely on the written record. Ms. Boyd again filed
written record included Ms. Boyd's OPM file. But missing
from the OPM file was the Financial Resources Questionnaire
that had been attached to her February 2013 waiver request;
only the first page of that waiver request was ...