NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
MICHELLE DILLARD,
Petitioner
v.
OFFICE OF PERSONNEL MANAGEMENT,
Respondent
______________________
2019-2123
______________________
Petition for review of the Merit Systems Protection
Board in No. AT-831M-19-0266-I-1.
______________________
Decided: December 5, 2019
______________________
MICHELLE DILLARD, Peachtree City, GA, pro se.
ALBERT S. IAROSSI, Commercial Litigation Branch,
Civil Division, United States Department of Justice, Wash-
ington, DC, for respondent. Also represented by JOSEPH H.
HUNT, LISA LEFANTE DONAHUE, ROBERT EDWARD
KIRSCHMAN, JR.
______________________
Before WALLACH, CLEVENGER, and STOLL, Circuit Judges.
2 DILLARD v. OPM
PER CURIAM.
Petitioner Michelle Dillard seeks review of a final deci-
sion of the Merit Systems Protection Board (“MSBP”),
which affirmed the Office of Personnel Management’s
(“OPM”) determination that she had “received an overpay-
ment of $10,434.62” from her Civil Service Retirement Sys-
tem (“CSRS”) retirement annuity. See Dillard v. Office of
Pers. Mgmt., No. AT-831M-19-0266-I-1,
2019 WL 2176482
(M.S.P.B. May 13, 2019) (R.A. 4–11); R.A. 4. 1 We have ju-
risdiction pursuant to 28 U.S.C. § 1295(a)(9) (2012). We
affirm.
BACKGROUND 2
Ms. Dillard was employed by the federal government
for nearly twenty years. See R.A. 5; see also R.A. 40–41. In
August 1998, Ms. Dillard “indicated her intent to resign
under a Voluntary Separation Incentive Program” and “re-
quested the amount of her [CSRS] retirement contributions
from [the] OPM.” R.A. 5; see R.A. 47 (August 1998 Letter
1 An administrative judge issued the initial decision
on May 13, 2019, which became final on June 17, 2019, be-
cause Ms. Dillard did not file a petition for review. See
R.A. 11; see also 5 C.F.R. § 1201.113 (2018) (providing
“[t]he initial decision of the judge will become the [MSPB]’s
final decision [thirty-five] days after issuance” unless, inter
alia, “(a) . . . any party files a petition for review”). There-
fore, we refer to the Initial Decision as the MSPB’s Final
Decision. “R.A.” refers to the appendix attached to the Re-
spondent’s Brief.
2 Because the parties do not dispute the MSPB’s rec-
itation of the facts, we cite to the MSPB’s decision for the
relevant background facts. See R.A. 4; see generally Pet’r’s
Br.; Resp’t’s Br.
DILLARD v. OPM 3
from Ms. Dillard to OPM). 3 Ms. Dillard completed her em-
ployment in January 1999. R.A. 5.
In March 1999, Ms. Dillard applied for a refund of her
retirement deductions and asked for it to be mailed to her
address of record in Georgia. R.A. 5. In April 1999,
Ms. Dillard’s husband signed a form acknowledging
Ms. Dillard’s application, indicating that he “underst[oo]d
that [his] spouse [was] applying for a refund of Civil Service
Retirement Deductions,” and the form was witnessed by an
attorney who worked for Ms. Dillard’s husband’s employer.
R.A. 5; see R.A. 42−43 (Current/Former Spouse’s Notifica-
tion of Application for Refund of Retirement Deductions
Under the Civil Service Retirement System) (providing no-
tice to Ms. Dillard’s husband of Ms. Dillard’s Application,
dated April 1999, signed by Ms. Dillard and her spouse,
and witnessed by an Attorney Advisor at her spouse’s place
of employment). Later that month, the Department of
Treasury issued Ms. Dillard a $30,630.97 retirement de-
duction refund check. R.A. 5; see R.A. 37 (OPM Refund Ar-
chive Data), 59 (OPM Master Record Printout), 60 (Address
of Record).
In May 2006, Ms. Dillard began working for the U.S.
Department of the Army. R.A. 5. In June 2016,
Ms. Dillard again applied for immediate retirement from
3 CSRS was replaced by the Federal Employees’ Re-
tirement System (“FERS”) Act of 1986. See Pub. L. No. 99-
335, 100 Stat. 514 (codified at 5 U.S.C. §§ 8343a, 8349,
8350–8351, 8401–8479). “FERS was designed to improve
upon CSRS, with the disability section in particular having
minimal differences to CSRS.” Springer v. Adkins,
525
F.3d 1363, 1367 (Fed. Cir. 2008) (citing S. Rep. No. 99–166,
at 21 (1985), as reprinted in 1986 U.S.C.C.A.N. 1405, 1426)
(“To minimize differences from the CSRS, the majority of
standards and procedures applicable to the [FERS] are
identical to those of the CSRS.”).
4 DILLARD v. OPM
her federal service, “with a final separation date of Septem-
ber 30, 2016.” R.A. 5. The OPM provided Ms. Dillard with
interim annuity payments from October 2016 through
June 2017. See R.A. 54 (Calculation of Annuity Overpay-
ment) (providing calculation of “the amount [Ms. Dillard]
[had] been overpaid in annuity benefits,” based on pay-
ments made from October 2016 to June 2017). In
July 2017, the OPM notified Ms. Dillard “that she had re-
ceived an overpayment in the amount of $10,434.62, in
part, because her interim annuity payments[4] were based
on [thirty] years of Federal service, not [ten].” R.A. 5−6.
Ms. Dillard requested a reconsideration of the OPM’s find-
ing of overpayment, claiming that her interim annuity pay-
ments were correctly based on thirty—and not ten—years
of service because she had “never received the [1999] re-
fund check for her retirement contributions.” R.A. 6; see
R.A. 57. The OPM affirmed its prior decision. R.A. 6; see
R.A. 25.
4 The OPM generally makes interim annuity pay-
ments before it makes a former employee’s first regular
monthly annuity payment. 5 C.F.R. § 831.603. The in-
terim payments are “estimated payments” made until the
OPM has “adjudicated the regular rate of annuity pay-
ments.”
Id. When interim annuity payments are author-
ized, recipients are notified that, if the interim amount
paid is more than the adjudicated amount, the OPM “will
make adjustments to [the] balance [of their] account” by
reducing their first regular payment, and “[i]n the rare case
where the overpaid interim payment(s) exceed the amount
of [the recipients’] next check,” the OPM will “notif[y]” the
recipients, giving them “opportunity to respond before
[OPM] begin[s] to withhold the excess from future annuity
payments.” R.A. 29; see R.A. 25. Ms. Dillard does not con-
test that she was provided with this notice. See generally
Pet’r’s Br.
DILLARD v. OPM 5
In January 2019, Ms. Dillard appealed the OPM’s re-
consideration decision to the MSPB, claiming “that the
overpayment should not exist because she never received
the [1999] refund check for her retirement deductions.”
R.A. 6. Ms. Dillard also claimed that she did not “remem-
ber filling out [any] paperwork” requesting a refund of her
retirement contributions. R.A. 7. In May 2019, the MSPB
affirmed the OPM’s reconsideration decision, determining
that the “OPM proved by preponderant evidence the exist-
ence and the amount of the overpayment.” R.A. 11. First,
in regard to the 1999 request and refund of her retirement
contributions, the MSPB found that Ms. Dillard was “well-
aware that she had applied for th[e] refund[,]” because
Ms. Dillard “actively sought the amount of her retirement
contribution refund from [the] OPM, the unequivocal no-
tice provided by the OPM’s forms,” and that Ms. Dillard
completed “the formalities required to execute them[.]”
R.A. 8–9; see R.A. 47 (August 1998 Letter from Ms. Dillard
to OPM); see also R.A. 40 (Application for Refund of Retire-
ment Deductions), 42−43. Second, the MSPB found that “if
[Ms. Dillard] truly had not received this refund, she would
have contacted [the] OPM . . . to inquire about the refund’s
status” and “[t]hat she did not contact [the] OPM . . . is
strong evidence that she did, in fact, receive the refund
check.” R.A. 9. Third, although Ms. Dillard testified that
the “image of the negotiated check presented by [the] OPM
is illegible,” R.A. 7, the MSPB found that “while portions of
the check image are blurry, it is not completely illegible,”
and it is more likely than not that “the portion of the sig-
nature on the back of the check matches [Ms. Dillard’s] sig-
nature on [her] pleadings and retirement applications.”
R.A. 9; see R.A. 38−39 (providing check images with a por-
tion of Ms. Dillard’s signature). Accordingly, the MSPB af-
firmance of the OPM’s reconsideration decision was
supported by substantial evidence. R.A. 11.
6 DILLARD v. OPM
DISCUSSION
I. Standard of Review and Legal Standard
We will uphold a decision of the MSPB unless it is “ar-
bitrary, capricious, an abuse of discretion, or otherwise not
in accordance with law” or “unsupported by substantial ev-
idence.” 5 U.S.C. § 7703(c) (2012); see Grover v. Office of
Pers. Mgmt.,
828 F.3d 1378, 1382 (Fed. Cir. 2016) (applying
§ 7703(c) to review an MSPB decision). Substantial evi-
dence is “such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion.” Shapiro
v. Soc. Sec. Admin.,
800 F.3d 1332, 1336 (Fed. Cir. 2015)
(internal quotation marks and citation omitted). “The pe-
titioner bears the burden of establishing error in the
MSPB’s decision.” Jenkins v. Merit Sys. Prot. Bd.,
911 F.3d
1370, 1373 (Fed. Cir. 2019) (internal quotation marks,
brackets, and citations omitted). Additionally, “pro se
pleadings are to be liberally construed.” Durr v. Nicholson,
400 F.3d 1375, 1380 (Fed. Cir. 2005) (citing Hughes v.
Rowe,
449 U.S. 5, 9−10 (1980)).
In retirement annuity cases, “[the OPM] must estab-
lish by the preponderance of the evidence that an overpay-
ment occurred.” 5 C.F.R. § 831.1407(a); see King v. Office
of Pers. Mgmt.,
730 F.3d 1342, 1348 (Fed. Cir. 2013) (“First,
[the] OPM bears the burden of proving an annuity overpay-
ment by a preponderance of the evidence.” (citation omit-
ted)). A preponderance of the evidence is defined as “[t]he
degree of relevant evidence that a reasonable person, con-
sidering the record as a whole, would accept as sufficient to
find that a contested fact is more likely to be true than un-
true.” 5 C.F.R. § 1201.4(q) 5; see Ortiz v. Principi,
274 F.3d
5 Because this case was not brought before the
MSPB under 5 C.F.R. § 1201.57, but 5 C.F.R.
§ 1201.56(b)(ii),“the [OPM] [bore] the burden of proof and
DILLARD v. OPM 7
1361, 1365 (Fed. Cir. 2001) (quoting In re Winship,
397
U.S. 358, 371−72 (1970) (“The burden of proving something
by a ‘preponderance of the evidence’ requires the trier of
fact to believe that the existence of a fact is more probable
than its nonexistence before [he or she] may find in favor
of the party who has the burden to persuade the [judge] of
the fact’s existence.”)).
II. Substantial Evidence Supports the MSPB’s Determina-
tion that the OPM Established by a Preponderance of the
Evidence the Existence of Overpayment to Ms. Dillard
The MSPB affirmed the OPM’s reconsideration deci-
sion finding a $10,434.62 overpayment of Ms. Dillard’s in-
terim annuity payments. R.A. 4. Specifically, the MSPB
determined that the “OPM proved by preponderant evi-
dence the existence and the amount of the overpayment.”
R.A. 11. Ms. Dillard’s main contention is that the OPM
did not meet its evidentiary burden because “[the] OPM
failed to obtain the original supporting documentation,
along with the check number to support the refund of
$30,630.97, and a copy of [the] SF-1166 (Voucher and
Schedule of Payment) to support the refund claim.” Pet’r’s
Br. 1. We disagree with Ms. Dillard.
Substantial evidence supports the MSPB’s determina-
tion that the OPM demonstrated by a preponderance of the
evidence that Ms. Dillard was “well-aware that she had ap-
plied for th[e] refund” and received it. R.A. 9. Specifically,
the MSPB explained that Ms. Dillard’s August 1998 Letter
requesting the amount of her retirement contribution, and
the Notification of Application form that was: (1) signed by
both Ms. Dillard and her husband; and (2) witnessed by an
attorney who worked with her husband, supported the con-
clusion that Ms. Dillard knew she had applied for the
its action must be sustained only if . . . it is supported by a
preponderance of the evidence (as defined in §1201.4(q)).”
8 DILLARD v. OPM
refund. R.A. 8–9; see R.A. 47; see also R.A. 40, 42–43. In
addition to applying for the refund, the MSPB concluded
that the OPM had processed Ms. Dillard’s application and
mailed a $30,630.97 check to her Georgia address, R.A. 37;
see R.A. 59, 60, and that Ms. Dillard received and signed
the check, R.A. 38−39; see R.A. 10. The MSPB also relied
upon the OPM’s records about its issuance of the check to
Ms. Dillard and the fact that Ms. Dillard “deposited
$15,000 into her account mere days after the refund check
was issued.” R.A. 9. Thus, substantial evidence supports
the MSPB’s determination that the OPM properly found by
preponderant evidence that Ms. Dillard applied for and re-
ceived her refund check and was overpaid in her interim
annuity payments.
Ms. Dillard’s primary counterargument is unpersua-
sive. Ms. Dillard argues that the OPM did not obtain the
original supporting documentation, including the refund
check number, even though “the U.S. Treasury Check In-
formation System ha[s] digital check images available from
October 1996 to the present.” Pet’r’s Br. 1. Ms. Dillard
provides no evidence to support this assertion. In contrast,
the OPM has provided its Refund Data Record and Master
Record printout that lists Ms. Dillard’s full name, her ad-
dress of record, and that a signed check dated April 27,
1999 for $30,630.97 was sent to her at that address.
R.A. 37; see R.A. 59; see also R.A. 38−39. Accordingly, sub-
stantial evidence supports the MSPB’s conclusion that the
OPM properly found by a preponderance of the evidence
that Ms. Dillard was overpaid in her interim annuity pay-
ments. 6
6 Ms. Dillard briefly argues that OPM, and therefore
the MSPB, erred by failing to produce any tax documents
relating to the refund, and that the absence of such docu-
mentation provides evidence that she did not receive the
refund. Pet’r’s Br. 1. Even if true, the absence of tax
DILLARD v. OPM 9
CONCLUSION
We have considered Ms. Dillard’s remaining argu-
ments and find them unpersuasive. Accordingly, the Final
Decision of the Merit Systems Protection Board is
AFFIRMED
documentation relating to the refund does not detract from
the overwhelming evidence supporting the MSPB’s deci-
sion.
