                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     CHRIS SWARTWOUT,                                 DOCKET NUMBER
                 Appellant,                           SF-0842-16-0307-I-1

                  v.

     OFFICE OF PERSONNEL                              DATE: November 16, 2016
       MANAGEMENT,
                   Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Chris Swartwout, Laguna Hills, California, pro se.

           Tynika Faison Johnson, Washington, D.C., for the agency.


                                           BEFORE

                              Susan Tsui Grundmann, Chairman
                                 Mark A. Robbins, Member



                                        FINAL ORDER


¶1         The appellant has filed a petition for review of the initial decision, which
     affirmed the decision of the Office of Personnel Management (OPM) finding that
     he was not entitled to an annuity. Generally, we grant petitions such as this one


     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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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 a nd 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

     only when: the initial decision contains erroneous findings of 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. See 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 and AFFIRM the initial decision, which is now the Board’s
     final decision. 5 C.F.R. § 1201.113(b).
¶2        On October 1, 1986, the appellant, a Postal Carrier, began receiving
     benefits from the Office of Workers’ Compensation Programs (OWCP) based on a
     mental disability, and he was placed on leave without pay. Initial Appeal File
     (IAF), Tab 5 at 60, 67. Beginning in 1988, he made inquiries about securing a
     refund of his retirement deductions. Id. at 39-57. OPM advised him that, because
     he was still on the rolls, receiving OWCP payments, his employing agency would
     not release his Individual Retirement Record to OPM, and that, if he wished to
     receive a refund, he would have to resign from his position.        Id. at 36.   On
     July 16, 1991, the appellant submitted his resignation “to free up these funds.”
     Id. at 30. On November 8, 1991, OPM authorized a refund of $5,250.43 which it
     sent to the appellant’s address of record. Id. at 18. In 2015, the appellant applied
     for a deferred annuity. Id. at 7. In an initial decision, and then a final decision,
     OPM advised him that he had forfeited his eligibility for an annuity by having
     withdrawn his retirement deductions. Id. at 6.
¶3        On appeal, the appellant argued that he was mentally unstable when he
     resigned and requested a refund of his retirement deductions , and that he never
                                                                                          3

     received any counseling from his employing agency as to the implications of
     receiving such a refund, and, in fact, was misled into believing that there would
     be no adverse consequences. IAF, Tab 1 at 2. He requested a hearing. 2 Id. at 1.
¶4         In his initial decision, the administrative judge found that an employee who
     has received a full refund of his retirement deductions is no longer eligible for an
     annuity, and may not redeposit those deductions unless and until he is
     reemployed. 3 5 U.S.C. § 8342(a); IAF, Tab 14, Initial Decision (ID) at 2. The
     administrative judge duly considered the appellant’s challenges to OPM’s final
     decision, beginning with his claim of having “no recollection” of ever receiving
     the refund of his retirement deductions. The administrative judge found that the
     evidence submitted by the agency, records compiled in the ordinary course of
     business, show that a voucher was issued authorizing payment to the appellant in
     the amount of $5,250.43, that a check for that amount was issued to him on
     November 5, 1991, that there is no evidence that it was returned, that the
     Department of the Treasury no longer has its actual records from 1991, and that
     the appellant did not question OPM about his nonreceipt of the funds until 2015.
     ID at 2. Weighing the agency’s records and documentary evidence against the
     appellant’s unsupported assertions, the administrative judge found that he failed
     to prove that he did not receive a refund of his retirement deductions in 1991. ID
     at 2-3.
¶5         Next, the administrative judge addressed the appellant’s claim that his
     employing agency did not counsel him about the consequences of his decision to
     withdraw his retirement deductions.       The administrative judge found that the
     forms the appellant signed clearly advised him that withdrawal of his retirement
     deductions would void his right to an annuity, and that, in any event, OPM c annot

     2
      During the prehearing conference, the appellant withdrew his hearing request. IAF,
     Tab 11.
     3
       The administrative judge found, and it is not contested, that the appellant was never
     reemployed. IAF, Tab 14, Initial Decision (ID) at 2.
                                                                                           4

     be estopped from denying benefits not otherwise permitted by law, even if an
     employee is misled by a Government official. ID at 4.
¶6         Finally, the administrative judge addressed the appellant’s claim that he
     should not be bound by his decision to resign and withdraw his retirement
     deductions because he was mentally unstable at the time. 4              As noted, the
     administrative judge found that the forms the appellant signed were clear, ID at 4,
     and, after examining his medical evidence, found that he was not adjudged to be
     incompetent and that no guardian was appointed for him, ID at 4-5.                 The
     administrative judge also considered that the appellant had doggedly pursued a
     refund of his retirement deductions from 1988-1991, writing cogent letters to his
     congressman and to the President on the issue. ID at 5. The administrative judge
     concluded that there was no evidence showing that the appellant’s mental
     condition prevented him from understanding that a refund would void his right to
     an annuity and that, even if there were, the Board is not authorized to waive
     statutorily mandated requirements for annuity entitlement, see Office of Personnel
     Management v. Richmond, 496 U.S. 414, 416, 434 (1990) (finding that the
     Government cannot be estopped from denying benefits not otherwise permitted by
     law even if the claimant was denied monetary benefits because of his relian ce on
     the mistaken advice of a Government official); ID at 5-6. Concluding that the
     appellant did not establish his entitlement to an annuity, ID at 6, the
     administrative judge affirmed OPM’s decision, ID at 2, 6.
¶7         On review, the appellant disputes the administrative judge’s finding that his
     mental condition at the time he decided to resign and withdraw his retirement
     deductions was not such as to render void those decisions. 5 Petition for Review

     4
      OWCP placed the appellant on total disability after he was diagnosed with a mental
     health issue. IAF, Tab 8, Subtab I.
     5
       On review, the appellant does not dispute the finding that he failed to prove that he
     did not receive a refund of his retirement deductions in 1991, ID at 3-4, and we discern
     no error in the administrative judge’s finding, see Sosa v. Office of Personnel
     Management, 76 M.S.P.R. 683, 685-86 (1997); Rint v. Office of Personnel Management,
                                                                                       5

(PFR) File, Tab 1 at 1-2. In support of his finding, the administrative judge relied
upon an implicit finding in Yarbrough v. Office of Personnel Management,
770 F.2d 1056 (Fed. Cir. 1985), wherein our reviewing court allowed for the
possibility that mental incompetence could invalidate an employee’s decision to
seek a refund of her retirement contributions, a decision that would otherwise
extinguish her right to an annuity. In agreeing with the Board’s finding in that
case that the employee did not establish that she was incompetent, the court
considered the explanation on the form she signed that receipt of a refund would
forfeit her right to an annuity, the tenor of her written inquiry to the Civil Service
Commission regarding her eligibility for payments and the response, and the fact
that, although she had earlier been admitted to a state hospital, no guardian was
ever appointed for her and she was not formally adjudicated incompetent.              Id.
at 1060. The administrative judge in this case considered these same factors in
determining that the appellant did not establish that he was incompetent at the
time he resigned and sought a refund of his retirement deductions. ID at 4-6.
Although the appellant questions whether these factors are appropriate for
consideration, PFR File, Tab 1 at 1, decisions of the U.S. Court of Appeals for the
Federal Circuit are controlling authority for the Board, 6 Garcia v. Department of
Agriculture, 110 M.S.P.R. 371, ¶ 12 (2009).




48 M.S.P.R. 69, 72, aff’d, 950 F.2d 731 (Fed. Cir. 1991) (Table). The appellant does,
on review, dispute the finding that he failed to show he was not made aware of and/or
was misled regarding the ramifications of his decision to withdraw his retirement
deductions. PFR File, Tab 1 at 1. However, his mere disagreement with the
administrative judge’s well-reasoned findings on this point does not provide a basis for
us to reweigh the evidence or substitute our assessment of the evidence for that of the
administrative judge. Crosby v. U.S. Postal Service, 74 M.S.P.R. 98, 105-06 (1997).
6
  The appellant argues that the court’s decision in Yarbrough should have been applied
more leniently in this case because of his status as a pro se litigant. PFR File, Tab 1
at 2. However, any consideration that the Board affords pro se appellants as they
pursue their appeals does not, as he suggests, extend to “a less strict interpretation of
the law.”
                                                                                            6

¶8         The appellant further argues that the administrative judge did not consider
     all the medical evidence he submitted.        PFR File, Tab 1 at 1.       However, the
     administrative judge’s failure to mention all of the evidence of record does not
     mean that he did not consider it in reaching his decision. Marques v. Department
     of Health & Human Services, 22 M.S.P.R. 129, 132 (1984), aff’d, 776 F.2d 1062
     (Fed. Cir. 1985) (Table). Moreover, medical opinions that, in 1988 and 1992, the
     appellant suffered from serious mental illness and that his condition resulted in
     faulty reasoning and judgment, IAF, Tab 8, Subtab F; IAF, Tab 10, Subtab E, and
     that, in 1996, he experienced all normal and possible stressful life situations as
     overwhelming conditions that rendered him incapacitated for months, IAF, Tab 8,
     Subtab J, does not establish that he was incompetent in 1991 when he resigned in
     order to receive a refund of his retirement deductions. In sum, the appellant has
     not shown error by the administrative judge in finding that the appellant did not
     establish by preponderant evidence that his medical condition prevented him from
     understanding that his receipt of a refund of his retirement deductions upon his
     resignation would preclude him from later receiving an annuity , see Yarbrough,
     770 F.2d at 1060-61; that, because he requested and received such a refund, he is
     not entitled to an annuity, 7 see 5 U.S.C. § 8342(a); and that the result is the same
     even if he relied on the mistaken advice of a Government official, see Richmond,
     496 U.S. at 416.
¶9         The appellant argues on review that he was disadvantaged in presenting his
     appeal because he lacked knowledge of and access to Board decisions. PFR File,

     7
       The Board has held that the erroneous payment of a lump-sum refund cannot void an
     appellant’s entitlement to an annuity to which he is otherwise entitled, and that, if he
     can establish that he was entitled to a retirement annuity at the time of his separ ation
     from service, he would not have been lawfully entitled to receive a lump -sum payment
     of his retirement deductions and the erroneous refund would not preclude him from
     receiving an annuity. See 5 U.S.C. § 8342(a)(1)(B)(4); Wadley v. Office of Personnel
     Management, 103 M.S.P.R. 227, ¶ 11 (2006). However, the appellant here does not
     suggest, nor does the evidence reflect, that he was entitled to an annuity at the time he
     separated from service in 1991 at age 42, given that he entered on duty in 1978 at age
     29. 5 U.S.C. § 8336; IAF, Tab 5 at 66-67.
                                                                                        7

      Tab 1 at 2. To the extent the appellant is suggesting that he was hampered by
      proceeding without legal representation, that was his choice. Moreover, as the
      appellant was advised, Board decisions are posted to the Board’s public website.
      PFR File, Tab 2 at 12.
¶10        Finally, the appellant argues that the administrative judge improperly
      allowed the agency to submit its response late and to submit additional
      documentation after the prehearing conference. PFR File, Tab 1 at 2. The record
      reflects that, in his February 23, 2016 acknowledgment order, the administrative
      judge directed the agency to file its response to the appeal within 20 days of the
      date of the order.   IAF, Tab 2 at 7.     When the agency failed to do so, the
      administrative judge ordered the agency to file its response no later than 7 days
      from the date of the April 11, 2016 order or face the imposition of sanctions.
      IAF, Tab 3. The agency filed its response 2 days later. IAF, Tab 5. As noted,
      the appellant withdrew his hearing request during the May 10, 2016 prehearing
      conference. IAF, Tab 11. The administrative judge indicated that the agency
      would be submitting one additional document, af ter which he would issue an
      initial decision. Id. The agency did submit one document on May 11, 2016, IAF,
      Tab 13, and the administrative judge then issued his initial decision, IAF, Tab 14.
¶11        Administrative judges have all powers necessary to conduct fair and
      impartial proceedings and to issue timely and clear decisions based on statutes
      and legal precedent, unless those powers are otherwise limited by law. 5 C.F.R.
      § 1201.41(b). Those powers include the authority to ensure that the record on
      significant issues is fully developed. 5 C.F.R. § 1201.41(b)(5)(iii). The Board
      ordinarily will not reverse an administrative judge’s rulings regulating the
      proceedings absent an abuse of discretion. See Ryan v. Department of the Air
      Force, 117 M.S.P.R. 362, ¶ 5 (2012).      The appellant has not shown how the
      administrative judge’s rulings in this case regarding the submission of evidence
      amounted to an abuse of discretion.
                                                                                   8

                  NOTICE TO THE APPELLANT REGARDING
                     YOUR FURTHER REVIEW RIGHTS
      You have the right to request review of this final decision by the U .S.
Court of Appeals for the Federal Circuit. You must submit your request to the
court at the following address:
                          United States Court of Appeals
                              for the Federal Circuit
                            717 Madison Place, N.W.
                             Washington, DC 20439

The court must receive your request for review no later than 60 calendar days
after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec. 27,
2012). If you choose to file, be very careful to file on time. The court has held
that normally it does not have the authority to waive this statutory deadline and
that filings that do not comply with the deadline must be dismissed. See Pinat v.
Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).
      If you need further information about your right to appeal this decision to
court, you should refer to the Federal law that gives you this right. It is found in
title 5 of the U.S. Code, section 7703 (5 U.S.C. § 7703) (as rev. eff. Dec. 27,
2012). You may read this law as well as other sections of the U .S. Code, at our
website, http://www.mspb.gov/appeals/uscode.htm.        Additional information 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, 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 Fede ral Circuit. The
                                                                                  9

Merit Systems Protection Board neither endorses the services provided by any
attorney nor warrants that any attorney will accept representation in a given case.




FOR THE BOARD:                            ______________________________
                                          Jennifer Everling
                                          Acting Clerk of the Board
Washington, D.C.
