                     NOTE: This disposition is nonprecedential.


 United States Court of Appeals for the Federal Circuit

                                      2007-3131



                             SISSAY G. HABTEMARIAM,

                                                           Petitioner,

                                          v.


                     OFFICE OF PERSONNEL MANAGEMENT,

                                                           Respondent.


      Sissay G. Habtemariam, of Addis Ababa, Ethiopia, pro se.

       Robert C. Bigler, Trial Attorney, Commercial Litigation Branch, Civil Division,
United States Department of Justice, of Washington, DC, for respondent. With him on
the brief were Peter D. Keisler, Acting Attorney General, Jeanne E. Davidson, Director,
and Todd M. Hughes, Deputy Director.

Appealed from: United States Merit Systems Protection Board
                        NOTE: This disposition is nonprecedential.

United States Court of Appeals for the Federal Circuit


                                        2007-3131



                               SISSAY G. HABTEMARIAM,

                                                              Petitioner,
                                            v.

                        OFFICE OF PERSONNEL MANAGEMENT,

                                                              Respondent.


                             __________________________

                            DECIDED: November 16, 2007
                            __________________________



Before NEWMAN, GAJARSA, and LINN, Circuit Judges.

PER CURIAM.



         Sissay G. Habtemariam petitions for review of the decision of the Merit Systems

Protection Board, Docket No. DC0831040224-I-1, affirming the decision of the Office of

Personnel Management denying him a deferred annuity. We affirm the decision of the

Board.

                                     BACKGROUND

         With the exception of one year from 1975 to 1976, Mr. Habtemariam worked for the

United States government from 1962 to 1980, employed by the Peace Corps and the
Agency for International Development. In 1980 Mr. Habtemariam left this employment due

to a reduction in force, and requested a refund of his retirement contributions.           In

November, 2002, Mr. Habtemariam applied for a deferred retirement annuity. OPM denied

the application, stating that he was ineligible for an annuity because he had withdrawn all of

his retirement contributions in 1980.

       Mr. Habtemariam appealed to the Board. After unsuccessful attempts to hold a

telephonic hearing with Mr. Habtemariam, who was living in Ethiopia, the Administrative

Judge proceeded without a hearing, but afforded the parties the opportunity to make a

written submission.    In an Initial Decision of April 1, 2004, the AJ affirmed OPM's

determination. The full Board split over whether the AJ had committed reversible error in

proceeding without a hearing; the split sustained the AJ's decision, which became the final

decision of the Board. On appeal, the Federal Circuit vacated the decision, stating that the

Board abused its discretion in failing to hold a hearing. On remand the AJ held a hearing,

in which the petitioner participated and testified. The AJ again affirmed the OPM decision,

and the Full Board declined further review. This appeal followed.

                                        DISCUSSION

       Before the Board, Mr. Habtemariam agreed that he had applied for a refund of his

retirement contributions, but stated that OPM never sent him the money. OPM produced

records showing that in 1980 he filed a refund application and that OPM had authorized

payment in the amount of $2,912.85, but OPM could not produce evidence of actual

payment, stating that the Treasury does not keep copies of cancelled checks for more than

seventy-eight months. OPM had no record of any communication from Mr. Habtemariam

stating that he had not received the requested payment.


2007-3131                                     2
       Mr. Habtemariam testified that he applied for the refund through the United States

embassy in Addis Ababa, and checked periodically for a year to see if the money had

arrived. He stated that an (unnamed) embassy official eventually told him to stop coming to

the embassy, and that the embassy would notify him when the check arrived. He said that

an embassy official told him that if the refund was not made, he would receive the deferred

annuity when he reached retirement age. Mr. Habtemariam stated that he then ceased his

inquiries at the embassy.

       The AJ found that it was more likely that the Agency had indeed issued the check

and that Mr. Habtemariam had received it. The AJ reasoned that it was unlikely that a

former employee would let such an important matter as payment of almost $3,000 go

unreported, or that he would abandon his request under the circumstances he described.

The AJ remarked on the lack of any evidence supporting Mr. Habtemariam's version of the

events.

       We conclude that the AJ's findings must be sustained. OPM established by

documentary evidence that the refund amount was calculated and the payment authorized,

and Mr. Habtemariam's testimony is unsupported. Although Mr. Habtemariam argues that

the AJ's decision was based on the assumption that the check was indeed issued by OPM,

his silence in notifying OPM that he had not received the requested payment, to which he

was entitled, weighs against his position. The decision of the Board must be affirmed.

       No costs.




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