Boyd v. Office of Personnel Management, 032017 FEDFED, 2016-1078

Court:United States Courts of Appeals, Court of Appeals for the Federal Circuit
Attorney:CONO A. CARRANO, Akin Gump Strauss Hauer & Feld LLP, Washington, DC, argued for petitioner. Also represented by Ryan S. Stronczer. Adam E. Lyons, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, DC, argued for respondent. Also represented by Benjamin ...
Judge Panel:Before O'MALLEY, Bryson, and WALLACH, Circuit Judges.
Opinion Judge:BRYSON, CIRCUIT JUDGE.
Party Name:ROBIN G. BOYD, Petitioner v. OFFICE OF PERSONNEL MANAGEMENT, Respondent
Case Date:March 20, 2017
Docket Nº:2016-1078
 
FREE EXCERPT

ROBIN G. BOYD, Petitioner

v.

OFFICE OF PERSONNEL MANAGEMENT, Respondent

No. 2016-1078

United States Court of Appeals, Federal Circuit

March 20, 2017

         Petition for review of the Merit Systems Protection Board in No. PH-0845-15-0215-I-1.

          CONO A. CARRANO, Akin Gump Strauss Hauer & Feld LLP, Washington, DC, argued for petitioner. Also represented by Ryan S. Stronczer.

          Adam 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.

          Before O'MALLEY, Bryson, and WALLACH, Circuit Judges.

          BRYSON, CIRCUIT JUDGE.

         I

         Petitioner 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").

         By 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.

         In a 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."

         The 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.

         Ms. Boyd admits that she received the June 21, 2011, letter. She then applied for Social Security benefits and continued receiving interim FERS benefits.

         On 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.

         OPM did 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.

         On 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.

         In a 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 overpayment."

         Ms. 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.

         Proceeding 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.

         On 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 nothing.

         The 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 included, which did not include her responses to the questionnaire.

         Based on the written record, the administrative judge affirmed OPM's denial of a waiver. The administrative judge found that Ms. Boyd had not demonstrated eligibility for a waiver because, "[a]lthough she timely notified OPM after she was awarded [Social Security] disability benefits, " she was "not without fault regarding the overpayment." Specifically, the administrative judge found that Ms. Boyd had "neither alleged nor proved that she did not receive OPM's [June 21, 2011] letter, " and that "[a]s such, she was instructed not to negotiate any [Social Security] benefits checks until her FERS payment had been reduced."1 Ms. Boyd was "not without fault, " the administrative judge ruled, because she had failed to set aside the Social Security checks as the June 21, 2011, letter had...

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