FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

DOMINGO MUSQUIZ,

Petitioner,

v.

UNITED STATES RAILROAD 

RETIREMENT BOARD,

Respondent.

No. 23-8

Railroad 

Retirement Board

OPINION

On Petition for Review of an Order of the

Railroad Retirement Board

Argued and Submitted April 12, 2024

Pasadena, California

Filed July 3, 2024

Before: Eugene E. Siler, Ronald M. Gould, and Carlos T. 

Bea, Circuit Judges.

*

Opinion by Judge Gould

* The Honorable Eugene E. Siler, United States Circuit Judge for the 

Court of Appeals, 6th Circuit, sitting by designation.
2 MUSQUIZ V. U.S. RAILROAD RETIREMENT BOARD

SUMMARY**

Railroad Retirement Act

The panel granted Domingo Musquiz’s petition for 

review of a decision of the U.S. Railroad Retirement Board 

(“RRB”) that adopted an RRB hearing officer’s finding that 

Musquiz was not without fault in causing an overpayment of 

his reduced-age annuity under the Railroad Retirement Act 

(“RRA”), and denied his request for a waiver or reduction of 

repayment of the overpayment and penalty; vacated the 

RRB’s decision; and remanded to the RRB for further 

proceedings. 

For overpayments under the RRA, the RRB shall not 

recover from an individual who is without fault and when 

recovery would be contrary to the purpose of the RRA or 

would be against equity or good conscience. 20 C.F.R. 

§ 255.10. 

The panel agreed with the RRB that Musquiz was not 

without fault for the overpayment that occurred starting in 

August 2012 and up until June 2, 2013. However, it 

concluded that Musquiz was without fault for the RRB’s 

overpayment of his annuity from June 3, 2013, onward, 

because by then the agency had told Musquiz that they had 

taken his outside earnings into account and adjusted his 

annuity payments. 

Because the RRB concluded that Musquiz was not 

without fault for the entire overpayment, the RRB never 

** This summary constitutes no part of the opinion of the court. It has 

been prepared by court staff for the convenience of the reader.
 MUSQUIZ V. U.S. RAILROAD RETIREMENT BOARD 3 

considered the second waiver element. The panel held that 

there may be good reason to believe that recovery of the 

overpayment from June 3, 2013, onward would be contrary 

to the purpose of the RRA, against equity, or against good 

conscience. On remand, the RRB should develop a factual 

record and make this determination in the first instance. 

COUNSEL

Kathryn M. Davis (argued), Law Office of Kathryn M. 

Davis, Pasadena, California; Peter R. Afrasiabi. One LLP, 

Newport Beach, California; Alfred Hwang and Emily 

Lovell, Certified Law Students; University of California 

Irvine School of Law, Appellate Litigation Clinic, Irvine, 

California; for Petitioner.

Patrick S. Polk (argued), General Attorney; Kelli D. 

Johnson, Assistant General Counsel; Ana M. Kocur, General 

Counsel; United States Railroad Retirement Board, Office of 

the General Counsel, Chicago, Illinois; for Respondent. 
4 MUSQUIZ V. U.S. RAILROAD RETIREMENT BOARD

OPINION

GOULD, Circuit Judge:

Domingo Musquiz petitions for review of the final 

decision of the United States Railroad Retirement Board 

(“RRB”). The RRB affirmed and adopted an RRB hearings

officer’s decision that found that Musquiz was “not without 

fault” in causing an overpayment of his reduced-age annuity

under the Railroad Retirement Act of 1974 (“RRA”). The 

RRB denied Musquiz’s request for a waiver or reduction of 

repayment of the overpayment and penalty.

We grant Musquiz’s petition, vacate the RRB’s decision, 

and remand for further proceedings.

I. Factual and Procedural History

The RRA, codified at 45 U.S.C. § 231 et seq., “replaces 

the Social Security Act for rail industry employers and 

employees and provides monthly annuities for employees 

based on age and service or on disability.” “The Railroad 

Retirement Act,” Attorney’s Guide to the Partition of 

Railroad Retirement Annuities (07-20), U.S. Railroad 

Retirement Board (last updated Feb. 16, 2024).1 The RRB 

is “an independent agency in the executive branch of the 

Federal government” that administers the RRA. Id.

Domingo Musquiz is now seventy-three years old. 

Musquiz worked in the rail industry for about twenty-seven

years and eleven months. Musquiz’s last day of rail industry

employment was February 1, 2006. On April 4, 2010, 

1 Available at: 

https://www.rrb.gov/Resources/LegalInformation/PartitionofRRA/The_

RRA, https://perma.cc/6H3S-Q8KC.
MUSQUIZ V. U.S. RAILROAD RETIREMENT BOARD 5

Musquiz started work at Santa Barbara Cottage Hospital 

(“SBCH”), a non-rail industry employer.

In the spring of 2012, Musquiz learned that SBCH 

planned to let him go in June. On May 22, 2012, Musquiz 

applied by telephone to the RRB for a reduced-age annuity. 

In his telephone application, Musquiz stated that his last day 

of work for SBCH would be June 30, 2012, and that he 

expected his 2012 earnings to total less than $14,640.00. 

SBCH let Musquiz go on June 30, 2012. SBCH rehired 

Musquiz in July 2012. Musquiz did not tell the RRB that he 

had been rehired by SBCH or that his expected 2012 

earnings had increased. The RRB started to disburse

Musquiz’s annuity on August 1, 2012. The RRB computed 

the annuity without any reduction for outside earnings.

On June 3, 2013, the RRB sent Musquiz a letter stating, 

“Your monthly annuity payments have been adjusted. 

Additional wages that you earned outside the railroad 

industry are now available to include in the tier 1 portion of 

your annuity.” The letter also told Musquiz, “If you believe 

that this rate change is not correct, you may request that the 

rate be reconsidered.”

On June 2, 2014, the RRB sent Musquiz another letter 

with the same language quoted above.

On June 1, 2015, the RRB sent Musquiz another letter 

with the same language quoted above.

On December 3, 2015, an RRB Claims Representative 

sent Musquiz a letter memorializing the telephone

conversation that the Representative had with Musquiz on 

that same day. The letter explained that the RRB “completed 

[its] annual policy match to Social Security Administration 

(SSA) earnings record[s]. SSA records show that [Musquiz] 
6 MUSQUIZ V. U.S. RAILROAD RETIREMENT BOARD

had the following earnings,” and then listed Musquiz’s 2012, 

2013, and 2014 earnings at SBCH. The letter also asked 

Musquiz to provide additional information and W-2 forms 

for the “requested years.” Musquiz provided the requested 

information and W-2s on or before December 21, 2015.

On February 27, 2016, the RRB Claims Representative 

sent a “reminder notice” that Musquiz provide his 2015 W2. However, it is unclear if the RRB had previously 

requested the 2015 W-2 in addition to the W-2s that Musquiz 

had provided in December 2015. Musquiz provided the 

2015 W-2 on or before March 4, 2016.

On April 25, 2016, the RRB sent Musquiz a letter telling 

him that he had received annuity overpayments from August 

1, 2012, to December 31, 2015, and that the amount Musquiz 

owed the RRB, including a penalty deduction required by 

law, totaled $67,281.33.

On May 5, 2016, Musquiz requested a waiver and 

personal conference. On November 2, 2016, the RRB 

District Manager held a personal conference with Musquiz 

by telephone. That day, the District Manager sent Musquiz 

a letter asking him to complete a financial disclosure 

statement and return it with his most recent tax returns within 

thirty days. On or before November 24, 2016, Musquiz 

returned the financial disclosure statement and his tax 

returns. On December 12, 2016, the RRB denied Musquiz’s 

request for a waiver of repayment, concluding that because 

Musquiz received a booklet of regulations that included 

reporting requirements when he applied for his annuity over 

the phone, he should have known about his reporting duties, 

so he was at fault when he did not report his change in 

employment and additional outside income.
 MUSQUIZ V. U.S. RAILROAD RETIREMENT BOARD 7 

Musquiz timely appealed, and on February 17, 2017, an 

RRB hearings officer held a hearing by telephone conference 

call. Musquiz participated without counsel. On March 22, 

2017, the hearings officer concluded that recovery of the 

overpayment could not be waived in full or in part, and the 

penalty was proper, because Musquiz should have known 

about his reporting requirements and had deviated from the 

standard of reasonable care in reporting. The hearings 

officer did not make any findings as to how the RRB’s 2013, 

2014, or 2015 adjustment letters could have impacted

Musquiz’s understanding of his reporting requirements. On 

April 25, 2017, Musquiz appealed the hearings officer’s 

decision.

Nearly five years later, on January 7, 2022, the RRB 

issued its final decision. The majority opinion, with one of 

three members dissenting, affirmed and adopted the decision 

of the hearings officer. The majority did not consider 

whether the RRB’s 2013, 2014, or 2015 letters could have 

impacted Musquiz’s understanding of his reporting 

requirements. One member dissented.

In his dissent, Labor Member John Bragg explained that 

“RRB regulations provide that all circumstance[s] 

surrounding an overpayment must be considered when 

evaluating whether an individual is without fault in causing 

an overpayment.” In Labor Member Bragg’s view, the RRB 

did not properly consider all circumstances, especially that 

the RRB had actual knowledge of Musquiz’s outside 

employment earnings as early as June 2013, that the RRB 

had informed Musquiz that it had that actual knowledge, and 

that the RRB had implied that it had taken those earnings 

into account when recalculating Musquiz’s annuities. Labor 

Member Bragg believed that Musquiz was without fault in 

causing the overpayment between June 2013 and December 
8 MUSQUIZ V. U.S. RAILROAD RETIREMENT BOARD

2015, and he would have remanded to develop a current 

factual record in order to decide “whether recovery of the 

overpayment would be contrary to the RRA or against equity 

or good conscience.”

On January 3, 2023, Musquiz timely filed a petition for 

review pursuant to 45 U.S.C. §§ 355(f), 231g, which gives

us jurisdiction to review the RRB’s final decision.

II. Analysis

a. Standard of Review

The RRB’s findings of fact are conclusive “if supported 

by evidence and in the absence of fraud.” 45 U.S.C. 

§ 355(f). We “will not set aside a decision of the [RRB] ‘if 

it is supported by substantial evidence, is not arbitrary[,] and 

has a reasonable basis in law.’” Calderon v. U.S. R.R. Ret. 

Bd., 780 F.2d 812, 813 (9th Cir. 1986) (quoting Akins v. U.S. 

R.R. Ret. Bd., 721 F.2d 652, 653 (9th Cir. 1983), and Lowe v. 

U.S. R.R. Ret. Bd., 294 F.2d 115, 116 (9th Cir. 1961) (per 

curiam)); Estes v. U.S. R.R. Ret. Bd., 776 F.2d 1436, 1437 

(9th Cir. 1985). “In this petition for review, the question for 

us is whether substantial evidence on the record considered 

as a whole supports the Board’s decision . . . .” Cooper v. 

U.S. R.R. Ret. Bd., 977 F.2d 647, 650 (D.C. Cir. 1992).

b. Discussion

For overpayments under the RRA, the RRB shall not 

recover from an individual when two elements are both

satisfied: “(a) The overpaid individual is without fault, and 

(b) [r]ecovery would be contrary to the purpose of the [RRA] 

or would be against equity or good conscience.” 20 C.F.R. 

§ 255.10. This mandatory waiver is derived directly from 

the language of the RRA, which expressly provides: “There 

shall be no recovery in any case in which more than the 
MUSQUIZ V. U.S. RAILROAD RETIREMENT BOARD 9

correct amount of annuities . . . has been paid . . . to an 

individual” who “is without fault when . . . recovery would 

be contrary to the purpose of” the law “or would be against 

equity or good conscience.” 45 U.S.C. § 231i(c).

i. Element 1: Fault

We agree with the RRB that Musquiz was not without 

fault for the overpayment that occurred starting in August 

2012 and up until June 2, 2013. However, we conclude that 

Musquiz was without fault for the RRB’s overpayment of 

his annuity from June 3, 2013, onward, because by then the 

agency had told Musquiz that they had taken his outside

earnings into account and adjusted his annuity payments.

The RRB defines “fault” as “a defect of judgment or 

conduct arising from inattention or bad faith.” 20 C.F.R. 

§ 255.11(b). Conduct may include “both action and 

inaction,” “does not require a deliberate intent to deceive,” 

and “is defective when it deviates from a standard of 

reasonable care . . . to comply” with the RRB’s regulations. 

Id. When determining “[w]hether an individual is at fault in 

causing an overpayment,” the RRB must consider “all 

circumstances surrounding the overpayment.” Id.

§ 255.11(c). The RRB has emphasized that it will consider 

such factors as: an individual’s ability “to understand 

reporting requirements” or “to realize that he or she is being 

overpaid,” which includes consideration of “age, education, 

comprehension, [and] physical and mental condition”; “the 

particular cause of non-entitlement to benefits”; and the 

number of times an individual “made erroneous statements.” 

Id.

The RRB has enumerated several non-exhaustive

circumstances in which it will find an individual at fault or 

not at fault. See id. § 255.11(d)–(f). For example, an 
10 MUSQUIZ V. U.S. RAILROAD RETIREMENT BOARD

individual is at fault if the individual did not provide the 

RRB with “information which the individual knew or should 

have known to be material.” Id. § 255.11(d)(1)(i). Notably, 

“an error on the part of the agency” cannot per se “extinguish 

fault on the part of the individual.” Id. § 255.11(d)(4). 

However, an individual is not at fault if “[t]he overpayment 

is the result of [RRB] error of which the overpaid individual 

was not aware and could not reasonably have been expected 

to be aware.” Id. § 255.11(e)(1).

Substantial record evidence confirms the RRB’s 

conclusion that Musquiz was not without fault for the first 

period of overpayment, beginning August 2012 and ending 

June 2, 2013. Musquiz should have known that he was 

required to report his re-employment at SBCH. When 

Musquiz applied for his annuity, he signed directly 

underneath a paragraph where he agreed “to immediately 

notify the RRB” upon the occurrence of enumerated events 

that would increase his earnings. The list of events included 

the following: “if . . . I return to work for SANTA 

BARBARA COTTAGE HOSPITAL.” Musquiz signed his 

name five lines below this explicit agreement. In 

determining whether Musquiz understood these reporting 

requirements, the RRB should have explicitly considered his 

“age, education, comprehension, [and] physical and mental 

condition.” See 20 C.F.R. § 255.11(c). Regardless, there is 

substantial evidence in the record to support the RRB’s 

implicit finding that Musquiz would have been able to read 

and understand the page that he signed and should have 

known to report his re-employment at SBCH to the RRB. 

We agree with the RRB that Musquiz was initially at fault 

for the overpayment and remained at fault up until June 2, 

2013.
MUSQUIZ V. U.S. RAILROAD RETIREMENT BOARD 11

However, Musquiz was without fault for any

overpayment that occurred on or after June 3, 2013. On that 

date, the RRB wrote Musquiz a letter telling him that his 

annuity payments had been adjusted, noting explicitly that 

the RRB was aware of his additional non-railway industry 

wages, and showing him how the RRB calculated his new 

monthly rate. The letter stated: “Your monthly annuity 

payments have been adjusted. Additional wages that you 

earned outside the railroad industry are now available to 

include in the tier 1 portion of your annuity. Here’s how we 

figured out your new monthly rate.” The letter went on to 

show the RRB’s calculations of the annuity. The letter also 

stated, “If you believe that this rate change is not correct, you 

may request that the rate be reconsidered.” On June 2, 2014, 

and June 1, 2015, the RRB sent Musquiz similar letters with 

the same quoted language.

While an error on the part of the RRB is not enough to 

counteract an individual’s role in causing an overpayment, 

here the RRB proactively communicated that the calculation 

of Musquiz’s annuity was in order. It is unreasonable for the 

RRB to conclude that Musquiz maintained a duty to report 

his additional outside earnings after receipt of the first letter, 

let alone the second and third letters, saying the RRB was 

aware of his additional earnings and that his annuity had 

been recalculated. As Labor Member Bragg asked in his 

dissent, “after receiving the first letter, why would Mr. 

Musquiz think there was any need for him to report his 

wages?” The record is clear that Musquiz diligently and 

promptly responded to every request the RRB made for 

additional information. The record is also clear that, as early 

as June 3, 2013, the RRB had the earnings information it 

needed to recalculate properly Musquiz’s annuity. And the 
12 MUSQUIZ V. U.S. RAILROAD RETIREMENT BOARD

record is clear that the RRB told Musquiz it had recalculated 

his annuity on his behalf.

What is unclear is why the RRB waited for more than 

two and a half years to act on that information. If we are to 

believe the RRB’s own communications, the RRB has a 

policy to conduct annual matches “to Social Security 

Administration (SSA) earnings record[s].” In this case, the 

RRB’s June 3, 2013 letter shows that it had conducted the 

match process and knew about the additional earnings but 

chose to wait an additional two and a half years, allowing 

additional overpayments to accrue, while simultaneously

informing Musquiz that his annuity had been recalculated to 

account for those additional earnings. We cannot consider 

Musquiz to be at fault for any overpayments on or after June 

3, 2013, because such overpayments were “the result of 

[RRB] error of which [Musquiz] was not aware and could 

not reasonably have been expected to be aware.” 20 C.F.R. 

§ 255.11(e)(1). It is reasonable for individuals and courts 

alike to presume the “regularity” of “the official acts of 

public officers.” United States v. Chemical Found., 

272 U.S. 1, 14–15 (1926).

For the foregoing reasons, we conclude that Musquiz 

was not without fault for any overpayments between August 

1, 2012, and June 2, 2013. However, Musquiz was without 

fault for any overpayments on or after June 3, 2013.

ii. Element 2: The Purpose of the RRA, Equity, 

or Good Conscience

Because the RRB concluded that Musquiz was not 

without fault for the entire overpayment, the RRB never 

considered the second waiver element: whether recovery 

would be contrary to the purpose of the RRA, against equity, 

or against good conscience. We next address that issue. In 
MUSQUIZ V. U.S. RAILROAD RETIREMENT BOARD 13

our view, there may be good reason to believe that recovery 

of the overpayment from June 3, 2013, onward would be 

contrary to the purpose of the RRA, against equity, or against 

good conscience because the record demonstrates that: 

(1) Musquiz is now seventy-three years old; (2) Musquiz has 

multiple health conditions that require medication and 

treatment; (3) Musquiz was, and likely still is, on a fixed 

income; (4) Musquiz was, and likely still is, operating at a 

monthly financial deficit; (5) Musquiz was, and likely still 

is, struggling to afford his mortgage; and (6) Musquiz was 

unable to afford even a haircut. As the RRB has stated, “[i]t 

is contrary to the purpose of the [RRA] for an overpayment 

to be recovered from income and resources which the 

individual requires to meet ordinary and necessary living 

expenses.” 20 C.F.R. § 255.12(a). However, the factual 

record of Musquiz’s financial situation is not current, and the 

RRB never considered this second element. Because such a 

determination “is highly fact specific and contextual,” the 

“outcome” is not “foreordained,” and we will provide the 

RRB “the flexibility” to develop a current factual record and 

make the determination in the first instance. Calcutt v. Fed. 

Deposit Ins. Corp., 598 U.S. 623, 630 (2023).

If the RRB concludes that recovery of the overpayment 

from June 3, 2013, onward would be contrary to the purpose 

of the RRA, against equity, or against good conscience, then 

the RRB must waive that portion of the repayment and 

penalty.

III. Conclusion

In enacting the RRA, Congress created a specialized 

benefits system for rail industry employees to ensure their 

wellbeing. As the regulations demonstrate, the RRB may 

recover an overpayment of benefits when an individual’s
14 MUSQUIZ V. U.S. RAILROAD RETIREMENT BOARD

inaction in reporting causes the overpayment, and even in 

some circumstances where the RRB also errs. See 20 C.F.R. 

§ 255.11(d). However, when the RRB’s continuous and 

repeated errors and communications make an individual’s 

inaction in reporting reasonable, the RRB cannot hold that 

individual liable for the RRB’s own errors. See id.

§ 255.11(e)(1). Musquiz admitted that, out of ignorance, he 

did not meet his reporting requirements. We agree that he 

should have to repay some of the overpayment. But once the 

RRB knew that it was miscalculating Musquiz’s annuity, did 

nothing to correct its calculations, and expressly told 

Musquiz that his annuity had been recalculated with 

knowledge of his additional outside earnings, no fault may

properly be attributed to Musquiz.

We GRANT Musquiz’s petition for review, VACATE

the RRB’s decision, and REMAND to the RRB for 

proceedings consistent with this opinion.