Veal v. Office of Personnel Management

NOTE: This disposition is nonprecedential
United States Court of Appeals
for the Federal Circuit
__________________________
DANNY W. VEAL,
Petitioner,
v.
OFFICE OF PERSONNEL MANAGEMENT,
Respondent.
__________________________
2011-3234
__________________________
Petition for review of the Merit Systems Protection
Board in case no. SF0842110041-I-1.
__________________________
Decided: February 13, 2012
__________________________
DANNY W. VEAL, of Anchorage, Alaska, pro se.
JOSEPH A. PIXLEY, Attorney, Commercial Litigation
Branch, Civil Division, United States Department of
Justice, of Washington, DC, for the respondent. With him
on the brief were TONY WEST, Assistant Attorney General,
JEANNE E. DAVIDSON, Director, and FRANKLIN E. WHITE,
JR., Assistant Director.
__________________________
2 VEAL v. OPM
Before LOURIE, LINN, and DYK, Circuit Judges.
PER CURIAM.
Danny W. Veal (“Veal”) appeals from a decision of the
Merit Systems Protection Board (“Board”) affirming a
determination by the Office of Personnel Management
(“Office”) that Veal was ineligible to receive annuity
benefits under the Federal Employees’ Retirement Sys-
tem (“FERS”). Veal v. Office of Pers. Mgmt, No. SF-0842-
11-0041-I-1 (M.S.P.B. Feb. 11, 2011) (“Initial Decision”),
reh’g denied, (M.S.P.B. Aug. 25, 2011) (“Final Order”).
For the reasons explained below, this court affirms.
BACKGROUND
Veal served in the Army between 1968 and 1970 and
worked for the Postal Service from 1988 until his removal
in 2002. All of his service was credited for retirement
purposes under the FERS. In May of 2002, Veal was
arrested and incarcerated in California, and in August of
2002, he was removed from federal service. In October
2002, the Postal Service sought to recover $2,444.26 from
Veal for overdrawn leave and past-due health benefit
premiums.
To satisfy this obligation Veal sought a refund of his
retirement contributions. Accordingly, Veal executed
Standard Form 3106, titled “Application for Refund of
Retirement Contributions,” in May 2003. Because Veal
was married, his spouse signed part 2 of a Standard Form
3106A acknowledging the consequences of her husband’s
refund of retirement contributions—waiver of an annuity
benefit. Two other individuals signed the Standard Form
3106A as witnesses, although Mrs. Veal contends that
they did not witness her sign the form and that she does
not know them. In June 2003, the Office authorized a
refund of Veal’s retirement deductions, paying $2,444.26
of the refund to the Postal Service and $3,477.81 to Veal.
VEAL v. OPM 3
At some later point, Veal sent a letter to the Office re-
questing information on the monthly amount of his re-
tirement annuity. On October 4, 2010, the Office
informed Veal that he was not eligible to receive annuity
benefits under FERS because he had already applied for
and received a refund of his retirement deductions. Veal
appealed to the Board, which agreed with the Office.
Initial Decision at 11. Veal then petitioned the full Board,
which denied his petition for rehearing. Final Order at 2.
Veal appealed to this court, which has jurisdiction under
28 U.S.C. § 1295(a)(9).
DISCUSSION
This court must affirm the Board’s decision unless it
is “(1) arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law; (2) obtained with-
out procedures required by law, rule, or regulation having
been followed; or (3) unsupported by substantial evi-
dence.” 5 U.S.C. § 7703(c).
The parties do not contest that if Veal properly re-
ceived a refund of his retirement contributions, he is not
entitled to annuity benefits. See 5 U.S.C. § 8424(a)
(“[P]ayment of the lump-sum credit to an em-
ployee . . . voids all annuity rights . . . based on the service
on which the lump-sum credit is based.”). Instead, Veal
raises two arguments on appeal as to why the signed
Standard Forms 3106 and 3106A are void. Each is ad-
dressed in turn.
Veal first argues that he was under duress when he
requested a refund of his retirement contributions and
signed Standard Form 3106. See Collins v. Office of Pers.
Mgmt., 45 F.3d 1569, 1573 (Fed Cir. 1995) (“[O]ne is not
relieved from the consequences of a written election
absent a showing that mental incompetence, duress or
fraud is the reason for an election one later seeks to
void.”). “In order to successfully defend on the ground of
force or duress, it must be shown that the party benefitted
4 VEAL v. OPM
thereby[, in this case the Postal Service,] constrained or
forced the action of the injured party, and even threat-
ened financial disaster is not sufficient.” Asberry v. U.S.
Postal Serv., 692 F.2d 1378, 1381 (Fed. Cir. 1982) (citation
omitted). Veal did not allege, nor does the record evidence
show, any wrongful act or threatening conduct on the part
of the Postal Service. Accordingly, substantial evidence
supports the Board’s finding that Veal’s “election to
receive the refund of his retirement deductions was not
the product of duress.” Initial Decision at 9.
Veal next argues that his refund was void because the
Standard Form 3106A, signed by Mrs. Veal, was not
properly witnessed. Specifically, Veal contends that his
wife signed the form alone and that she does not know the
two people who signed the form as witnesses. The line
above the two witness signatures recites: “We, the under-
signed, certify that Part 2 of this form was signed by the
current or former spouse of the person named in Part 1 in
our presence.” Mrs. Veal admits to signing Standard
Form 3106A. Veal asserts that, were the form properly
witnessed, those witnesses would have explained to Mrs.
Veal the consequences of her signature. These arguments
lack merit. “[T]he voluntary signing of a government
form for the purpose of evidencing agreement with the
terms of the form is binding.” Braza v. Office of Pers.
Mgmt., 598 F.3d 1315, 1319 (Fed. Cir. 2010). The fact
that Mrs. Veal “neglected to read the [form] before signing
it does not release her from the binding effect of the [form]
under controlling law.” Id. at 1321. Because Mrs. Veal
admits to signing the form, any discrepancy in witness
signatures was of no consequence, and does not void the
form. The Board’s finding to this effect is therefore sup-
ported by substantial evidence.
For these reasons, the decision of the Board is af-
firmed.
AFFIRMED
VEAL v. OPM 5
COSTS
Each party shall bear its own costs.