Case: 22-2200 Document: 40 Page: 1 Filed: 12/11/2023
NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
WILLIAM H. LEMON,
Petitioner
v.
OFFICE OF PERSONNEL MANAGEMENT,
Respondent
______________________
2022-2200
______________________
Petition for review of the Merit Systems Protection
Board in No. PH-0842-22-0006-I-1.
______________________
Decided: December 11, 2023
______________________
WILLIAM H. LEMON, Lewes, DE, pro se.
MILES KARSON, Commercial Litigation Branch, Civil
Division, United States Department of Justice, Washing-
ton, DC, for respondent. Also represented by REGINALD
THOMAS BLADES, JR., BRIAN M. BOYNTON, PATRICIA M.
MCCARTHY.
______________________
Before DYK, SCHALL, and REYNA, Circuit Judges.
Case: 22-2200 Document: 40 Page: 2 Filed: 12/11/2023
2 LEMON v. OPM
PER CURIAM.
DECISION
William H. Lemon petitions for review of the final de-
cision of the Merit Systems Protection Board (“Board”) that
affirmed the decision of the Office of Personnel Manage-
ment (“OPM”) that Mr. Lemon was not eligible to receive
annuity benefits under the Federal Employees’ Retirement
System (“FERS”). Suppl. App. 1. 1 We have jurisdiction
pursuant to
28 U.S.C. § 1295(a)(9). For the reasons set
forth below, we affirm.
DISCUSSION
I
Mr. Lemon worked for the U.S. Postal Service from ap-
proximately December 7, 1985, until June 26, 1998. Suppl.
App. 2. During this period he was covered by FERS.
Id. at
40–41. FERS is outlined in Chapter 84 of Title 5 of the
United States Code. In June of 2021, Mr. Lemon applied
for a deferred or postponed annuity.
Id. at 27–30 (“De-
ferred Annuity Application”). Former federal employees
who were covered by FERS are eligible for a deferred an-
nuity if they completed a certain number of years of service.
See
5 U.S.C. § 8413. In his application, Mr. Lemon indi-
cated that he had never previously filed an application un-
der FERS for a refund, for retirement, for deposit, or for
redeposit. Suppl. App. 28.
In a letter dated August 23, 2021, OPM informed Mr.
Lemon that it had determined that he was not eligible to
receive an annuity under FERS.
Id. at 25. OPM stated
that this was because it had determined that Mr. Lemon
had filed an application for a refund of his FERS retire-
ment deductions on January 2, 1999 (“Refund
1 Our citations to “Suppl. App.” refer to the Supple-
mental Appendix attached to Respondent’s brief.
Case: 22-2200 Document: 40 Page: 3 Filed: 12/11/2023
LEMON v. OPM 3
Application”), and that a refund of those deductions in the
amount of $4,116.85 had been authorized on February 19,
1999.
Id. OPM explained to Mr. Lemon, “[s]ince you have
received a refund of your retirement deductions, you are
not entitled to an annuity. The law that applies in your
case is section 8424(a) of title 5, United States Code. It
voids annuity rights that are based on refunded service.”
Id. OPM concluded by informing Mr. Lemon that this was
its final decision in the matter.
Id.
II
Mr. Lemon timely appealed OPM’s final decision to the
Board. There, he claimed that he never sought a refund of
his FERS retirement deductions, that he never received a
refund check, and that his former wife had completed the
Refund Application and forged his signature on it. Suppl.
App. 4.
On January 18, 2022, a hearing was held before the ad-
ministrative judge (“AJ”) assigned to the case.
Id. at 1. At
the hearing, Mr. Lemon reiterated that he had not signed
the Refund Application.
Id. at 4–5. Rather, he testified
that he believed that his former wife had completed the Re-
fund Application, based on the names of the witnesses on
the application, his former wife’s access to the required in-
formation, and the fact that, as a federal employee, she was
familiar with the refund application process.
Id. at 5. Mr.
Lemon also testified that he had completed the Deferred
Annuity Application in June of 2021 and that it contained
his handwriting and signature.
Id. at 6. During the hear-
ing, Mr. Lemon was asked to compare the handwriting and
signatures on the Refund Application and the Deferred An-
nuity Application. He testified that he could tell that the
handwriting and signatures on the Refund Application
were not his because they were very neat.
Id.
Following the hearing, on January 28, 2022, the AJ
rendered her initial decision. The AJ stated that she be-
lieved Mr. Lemon “does not recall requesting a refund of
Case: 22-2200 Document: 40 Page: 4 Filed: 12/11/2023
4 LEMON v. OPM
his retirement deductions over 20 years ago.”
Id. at 7. Nev-
ertheless, she did not credit Mr. Lemon’s testimony that he
did not complete the Refund Application and that he never
received a refund check. Regarding the issue of the Refund
Application, the AJ stated:
I have reviewed the signatures and handwriting on
the Deferred Annuity Application and compared
them with the signature and handwriting on the
Refund Application. See Boyling v. Department of
the Army,
6 M.S.P.R. 276, 278 (1981) (stating that
a trier of fact may compare handwriting and draw
conclusions therefrom in the presence or absence of
expert opinion). Although the signature on the Re-
fund Application is arguably “neater,” the lettering
style of the capital “W” is nearly identical to the two
signatures on the Deferred Annuity Application.
Additionally, the handwriting on both applications
are substantially similar, particularly the “T”s,
“R”s, “2”s, and “6”s. Notably, the “E”s on both ap-
plications are distinctive. Both applications con-
tain “E”s that fluctuate between using a typical
capital E and a curly, backwards 3 looking E. The
handwritten “I”s on both applications appear to al-
ways be in lower case, unlike the rest of the letters.
Further, the “X”s used to check the boxes on both
applications have a distinctive vertical line that
connects the top left of the “X” to the bottom left of
the “X.” Thus, the foregoing handwriting analysis
supports the conclusion that the appellant applied
for a refund of his retirement contributions.
Suppl. App. 7–8 (record citations omitted). The AJ also
noted that Mr. Lemon’s date of birth was incorrect on the
Refund Application, but stated that this “appear[ed] to be
a misprint” since Mr. Lemon’s stated birthdate was the
same as the date the application was signed.
Id. at 8 n.7.
Case: 22-2200 Document: 40 Page: 5 Filed: 12/11/2023
LEMON v. OPM 5
Next, the AJ pointed to Mr. Lemon’s testimony that he
completed a change of address form after he separated
from his wife, so that his mail to his old address was for-
warded to his new address. On this basis, the AJ deter-
mined that Mr. Lemon’s former wife would not have had
access to the refund check and that Mr. Lemon did in fact
receive a refund check of his retirement contributions.
Id.
at 8. Finally noting OPM’s “routine records” and Mr.
Lemon’s testimony, the AJ stated that Mr. Lemon had “not
produced evidence to overcome OPM’s evidence that he ap-
plied for and received a refund of his retirement contribu-
tions” and that he had not “met his burden to prove that
his refund application was the result of fraud.”
Id. (citing
Manoharan v. Off. of Pers. Mgmt.,
103 M.S.P.R. 159, ¶¶12–
15 (2006); Rint v. Off. of Pers. Mgmt.,
48 M.S.P.R. 69, 72
(1991), aff’d
950 F.2d 731 (Fed. Cir. 1991)).
Having found that Mr. Lemon received a lump-sum
payment of his retirement contributions, the AJ held that,
under
5 U.S.C. § 8424(a), he was not entitled to receive a
deferred annuity. She therefore affirmed OPM’s decision.
Id. at 8–9.
Mr. Lemon timely petitioned the Board for review of
the AJ’s initial decision. The Board denied the petition and
affirmed the initial decision on August 19, 2022.
Id. at 20.
The AJ’s initial decision therefore became the final decision
of the Board. This appeal followed.
III
Our review of the Board’s decision is limited by statute.
We must affirm a final decision of the Board unless it is
“(1) arbitrary, capricious, an abuse of discretion, or other-
wise not in accordance with law; (2) obtained without pro-
cedures required by law, rule, or regulation having been
followed; or (3) unsupported by substantial evidence.”
5
U.S.C. § 7703(c); see also Hayes v. Dep’t of the Navy,
727
F.2d 1535, 1537 (Fed. Cir. 1984). Substantial evidence
“means such relevant evidence as a reasonable mind might
Case: 22-2200 Document: 40 Page: 6 Filed: 12/11/2023
6 LEMON v. OPM
accept as adequate to support a conclusion.” Consol. Edi-
son Co. v. NLRB,
305 U.S. 197, 229 (1938).
Mr. Lemon’s sole argument on appeal is that the AJ
incorrectly decided the facts of his case. Thus, he repeats
his claims that he never sought a refund of his FERS re-
tirement deductions, that he never received a refund check,
and that his former wife had completed the Refund Appli-
cation and forged his signatures on it, as evidenced in part
by the incorrect birthdate on the Refund Application.
Pet’r’s Informal Br. Attach. 1–3; Pet’r’s Replacement Reply
Br. 1–2; Pet’r’s Mem. in Lieu of Arg. 2–4.
Substantial evidence clearly supports the decision of
the Board. We have set forth this evidence above. As
noted, the AJ carefully examined and compared the hand-
writing on the Refund Application and the Deferred Annu-
ity Application and explained the discrepancy regarding
Mr. Lemon’s birthdate. In addition, she had before her the
evidence of Mr. Lemon’s change of address and the records
of OPM. All of this led the AJ to find that Mr. Lemon had
not overcome OPM’s evidence that he had applied for a re-
fund of his FERS retirement deductions, that he had re-
ceived the refund, and that he had not been the victim of
fraud. While Mr. Lemon vigorously disputes the AJ’s find-
ings of fact, we cannot say that those findings are not sup-
ported by such evidence “as a reasonable mind might
accept as adequate to support a conclusion.” We therefore
see no error in the AJ’s decision affirming OPM’s denial of
Mr. Lemon’s application for a deferred annuity.
CONCLUSION
For the foregoing reasons, we affirm the final decision
of the Board.
AFFIRMED
COSTS
No costs.
