Brenda Smith v. Office of Personnel Management ( 2024 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
BRENDA J. SMITH, DOCKET NUMBER
Appellant, AT-0831-18-0339-I-1
v.
OFFICE OF PERSONNEL DATE: March 27, 2024
MANAGEMENT,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Brenda J. Smith , Winder, Georgia, pro se.
Carla Robinson , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
affirmed the Office of Personnel Management’s (OPM) final decision finding that
the appellant was not entitled to an annuity under the Civil Service Retirement
System (CSRS). Generally, we grant petitions such as this one only in the
following circumstances: the initial decision contains erroneous findings of
1
A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
2
material fact; the initial decision is based on an erroneous interpretation of statute
or regulation or the erroneous application of the law to the facts of the case; the
administrative judge’s rulings during either the course of the appeal or the initial
decision were not consistent with required procedures or involved an abuse of
discretion, and the resulting error affected the outcome of the case; or new and
material evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review. Except as expressly MODIFIED to
find that the appellant failed to prove that she was entitled to an annuity because
her retirement deductions were never cashed and therefore remained in her
retirement account, we AFFIRM the initial decision.
On August 19, 1980, the appellant completed and submitted to OPM an
“Application for Refund of Retirement Deductions.” Initial Appeal File, Tab 5
at 14. On November 12, 1980, OPM authorized a refund to the appellant in the
amount of $4,973.62. Id. at 9. In November 2009, 29 years later, the appellant
sent OPM a request for a deferred annuity. Id. at 16-17. She based her claim on
her allegation that she did not cash the refund check, but instead returned it to her
former employing agency after her separation from service. Hearing Compact
Disc (testimony of the appellant). Thus, the record shows that OPM attempted
payment of the appellant’s lump-sum credit by check, and the appellant admits
that she received it.
Generally, the receipt of the payment of the lump-sum credit by an
employee voids all annuity rights under the CSRS based on the service on which
the lump-sum credit is based. 5 U.S.C. § 8342(a). The appellant’s argument
raises the question of the meaning of the phrase “receipt of the payment of the
lump-sum credit” in § 8342(a). In the absence of a statutory definition of that
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phrase or clear guidance as to its meaning in the relevant legislative history, the
words of that statute will be interpreted as taking their ordinary, contemporary,
common meaning. Weed v. Social Security Administration, 107 M.S.P.R. 142,
¶ 6 (2007). The word “receive” generally means to take into one’s possession,
get, accept, or acquire. Webster’s New World Dictionary 1212
(College Ed. 1968). It can also connote the taking into possession and control.
Receive, Black’s Law Dictionary (5th ed. 1979). Here, there is no dispute that
the appellant took into her possession and controlled the “payment,” which was
made by check. Thus, the appellant has not met her burden of proving by
preponderant evidence that she is entitled to an annuity because she did not
“receive” payment of the lump-sum credit. See Vidal v. Office of Personnel
Management, 267 F. App’x 946, 948 n.1 (Fed. Cir. 2008) (suggesting that receipt
of a refund check, without cashing it, was enough to void annuity rights);
Resnick v. Office of Personnel Management, 120 M.S.P.R. 356, ¶ 5 (2013)
(holding that the appellant bears the burden of proof to show entitlement to a
retirement annuity by preponderant evidence).
Even if § 8342(a) were read to require the cashing or negotiating of a
refund check in order to void annuity rights, the appellant has still not met her
burden under the circumstances of this case. In Rint v. Office of Personnel
Management, 48 M.S.P.R. 69, 71 (1990), aff’d, 950 F.2d 731 (Fed. Cir. 1991)
(Table), the former employee applied for a refund of his retirement deductions in
April 1951, and OPM authorized payment of the refund in June 1951. In 1988,
37 years later, Mr. Rint applied for a deferred annuity, asserting that he had not
received a refund of his retirement deductions. Id. at 72. The Board held that,
under the circumstances, when there was a lengthy delay in raising a claim and
the only definitive record of actual payment, the cancelled Treasury check, was
not available because the Department of the Treasury maintained cancelled check
records for only 10 years, OPM would be unduly prejudiced if the Board required
it to produce definitive proof of the appellant’s actual receipt of the check. Id.4
The Board concluded that Mr. Rint failed to overcome the evidence that OPM had
authorized issuance of the check and thereby prove that he did not receive a
refund of his retirement contributions. Id.This case differs from Rint because the appellant does not deny receipt of
the retirement check. Nevertheless, the principle set forth in Rint and its progeny
applies with equal force in this case. As noted, the appellant admits that she
received the check, but claims that she never negotiated it. However, she has not
produced the check, and her sworn testimony is the only evidence that she did not
cash it. Thus, there is a delay of 29 years in raising her claim that the funds from
her retirement account were not cashed, and the only definitive record of actual
payment, the cancelled Treasury check, is not available because of the appellant’s
more than 10-year delay in asserting that she did not negotiate the check. OPM
would be unduly prejudiced if the Board required it to produce definitive proof
that the check the appellant received had been negotiated. See Deleon v. Office of
Personnel Management, 49 M.S.P.R. 369, 372–73 (1991); Rint, 48 M.S.P.R.
at 72. Under these circumstances, we find that even the appellant’s sworn
assertion that her retirement contributions remained in the retirement fund
because they were received but not cashed would be insufficient evidence to
prove that she is entitled to a deferred retirement annuity. See Sosa v. Office of
Personnel Management, 76 M.S.P.R. 683, 685-86 (1997).
NOTICE OF APPEAL RIGHTS 2
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain
review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following
2
Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
5
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
6
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision—including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board, 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
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EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction. 3 The court of appeals must receive your petition for
3
The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
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review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510.
9
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.