                          UNITED STATES OF AMERICA
                       MERIT SYSTEMS PROTECTION BOARD


     SYLVIA M. JONES,                                DOCKET NUMBER
                   Appellant,                        DA-0831-15-0014-I-1

                  v.

     OFFICE OF PERSONNEL                             DATE: June 1, 2015
       MANAGEMENT,
                   Agency.



             THIS FINAL ORDER IS NO NPRECEDENTIAL 1

           Sylvia M. Jones, Houston, Texas, pro se.

           Roxann 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 Office of Personnel Management’s (OPM’s) reconsideration decision
     finding that the appellant received a refund of her retirement contributions to the
     Civil Service Retirement System (CSRS) and that she was not entitled to a


     1
        A nonprecedential order is one that the Board has determined does not add
     sign ificantly 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 Parties may cite nonprecedential orders,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

     deferred annuity or to make a redeposit for her previous federal government
     service. Generally, we grant petitions such as this one 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 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, and based on the
     following points and authorities, 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).

                                      BACKGROUND
¶2        The appellant worked for the U.S. Postal Service from September 1970, to
     February 1980, under the CSRS. Initial Appeal File (IAF), Tab 7 at 23. The
     record contains two applications for a refund of CSRS retirement contributions
     dated in December 1979, and February 1980. Id. at 32, 34. In April 1980, OPM
     authorized a refund in the amount of $6,373.73, which included $247.13 that had
     been taken out and paid to the appellant’s former employing agency for
     overdrawn leave. Id. at 29. According to the appellant’s individual retirement
     record (IRR), OPM paid refunds to both the appellant and the agency in
     April 1980.   Id. at 14.    The record contains a 1982 request from the state
     Department of Social Services for the appellant’s retirement information and a
     signed authorization from the appellant authorizing OPM to release her retirement
     information to that department. Id. at 16-19, 23-24. In a March 1982 letter that
                                                                                             3

     was sent in response to the request from the state Department of Social Services,
     OPM indicated that all retirement deductions had been refunded to the appellant
     and that no further benefits were due. Id. at 23.
¶3         In June 2014, the appellant filed an application for deferred retirement. Id.
     at 8-10. In a September 2014 final decision, OPM informed the appellant that she
     was not eligible to receive an annuity because she had received a refund of her
     retirement contributions. Id. at 6. OPM informed the appellant of her right to file
     a Board appeal. Id. at 6-7. The appellant appealed OPM’s decision, asserting
     that she was not the one who originally applied for a refund of her CSRS
     contributions and that she never received the refund. IAF, Tab 1. The appellant
     specifically alleged that the handwriting and signature on the refund request form
     were not hers. Id. Before the administrative judge, the appellant alleged that
     OPM and her former employing agency had engaged in fraud.                  IAF, Tab 14.
     After holding a hearing, see Hearing Compact Disc (HCD), the administrative
     judge issued an initial decision affirming OPM’s denial of the appellant’s
     application for deferred retirement, IAF, Tab 19, Initial Decision (ID). She found
     that the appellant failed to prove that she did not receive the refund of her
     retirement contributions. 2 ID at 5-10.
¶4         The appellant has filed a timely petition for review in which she essentially
     reiterates the arguments that she raised below. 3 Petition for Review (PFR) File,



     2
       Although the appellant initially appeared to assert claims of discrimination and
     retaliation, IAF, Tab 14, she clarified at the hearing that she was not asserting that OPM
     discriminated or retaliated against her, see HCD.
     3
       On review, the appellant presents evidence and argument concerning instances of theft
     or alleged identity theft, a portion of her personnel record from the agency, and a
     statement from her sister. Petition for Review File, Tab 1. The appellant also states,
     for the first time on review, that she had received a check from the agency for $1,700
     after she was removed. I d. at 4-5. Under 5 C.F.R. § 1201.115, the Board will not
     consider evidence submitted for the first time with the petition for review absent a
     showing that it was unavailable before the record was closed despite the party’s due
     diligence. Avansino v. U.S. Postal Service, 3 M.S.P.R. 211, 215 (1980). The appellant
                                                                                          4

     Tab 1. The agency has responded in opposition to the petition for review. PFR
     File, Tab 4.

                                          ANALYSIS
¶5        We find that the administrative judge correctly determined that the
     appellant failed to demonstrate by preponderant evidence that she did not receive
     a refund of her retirement deductions or that she was otherwise entitled to
     retirement benefits under the CSRS. See ID at 10-11. An applicant for retirement
     benefits bears the burden of proving entitlement to the benefits she seeks by a
     preponderance     of   the   evidence. 4      Jordan     v.   Office   of   Personnel
     Management, 100 M.S.P.R. 623, ¶ 7 (2005); see 5 C.F.R. § 1201.56(b)(2)(ii).
     Subject to exceptions not applicable in this case, under 5 U.S.C. §§ 8334(d)(1),
     8342(a), if an employee has received a lump-sum payment of her retirement
     deductions, her right to annuity payments thereafter is extinguished in the
     absence of any evidence showing that she was subsequently reemployed in a
     position subject to the Civil Service Retirement Act and she had redeposited the
     amount she received, with interest.        See Yarbrough v. Office of Personnel
     Management, 770 F.2d 1056, 1060-61 (Fed. Cir. 1985).             When, as here, the
     appellant denies receipt of a refund of retirement contributions, she bears the
     burden of proving such nonreceipt by preponderant evidence.            Manoharan v.
     Office of Personnel Management, 103 M.S.P.R. 159, ¶ 12 (2006).
¶6        In addressing the issue of whether an appellant has received a refund of her
     retirement contributions, the Board will consider any office records kept by OPM
     showing that OPM previously had authorized a refund and will accord those
     records substantial weight to the extent that they give rise to an inference that the


     has not made such a showing here. Additionally, even if we considered this evidence, it
     would not affect the outcome of the appeal.
     4
      A preponderance of the evidence is that degree of relevant evidence that a reasonable
     person, considering the record as a whole, would accept as sufficient to find that a
     contested fact is more likely to be true than untrue. 5 C.F.R. § 1201.4(q).
                                                                                          5

     appellant actually received a refund. See, e.g., Danganan v. Office of Personnel
     Management, 55 M.S.P.R. 265, 269 (1992), aff’d, 19 F.3d 40 (Fed. Cir. 1994)
     (Table); Rint v. Office of Personnel Management, 48 M.S.P.R. 69, 72, aff’d,
     950 F.2d 731 (Fed. Cir. 1991) (Table).        Evidence of such office records will
     typically outweigh an appellant’s uncorroborated testimony that she never
     actually    received   a   refund.   See,   e.g.,   Sosa   v.   Office   of   Personnel
     Management, 76 M.S.P.R. 683, 685-86 (1997). Where definitive proof that the
     appellant actually received a refund no longer is available because of the
     appellant’s delay in pursuing her claim, the Board has found that OPM’s ability to
     defend the appeal has been impaired and that OPM would be unduly prejudiced if
     the Board required it to produce definitive proof of the appellant’s actual receipt
     of the check. See id. at 686.
¶7           In her decision, citing the factors set forth in Hillen v. Department of the
     Army, 35 M.S.P.R. 453, 458 (1987), the administrative judge found that the
     appellant’s testimony that she did not receive the refund of her retirement
     contributions was not credible.        ID at 7-8.      She found that both refund
     applications contained the appellant’s correct personal information and signatures
     that appeared similar to her signature on other documents in the record. ID at 8;
     see IAF, Tab 7 at 32, 34 (the appellant’s original applications for a refund); see
     also IAF, Tab 7 at 10, 18, 25-27, 36, Tab 14 (other examples of the appellant’s
     signature). She also found that, contrary to the appellant’s testimony, there was
     no probative evidence of “tampering” or “fraud” regarding the second refund
     application.    ID at 8.   The administrative judge also stated that there was no
     evidence to support the appellant’s conclusory and speculative statements
     regarding the perpetration of possible fraud, either by the father of her children,
     the U.S. Postal Service managers, or by the “federal government” at large. ID
     at 9.   The administrative judge therefore concluded that the appellant was not
     entitled to a deferred annuity because she had received a refund of her CSRS
     contributions and that she was not otherwise entitled to a deferred annuity or to
                                                                                       6

      make a redeposit for her prior federal service because she was not a federal
      government employee and had no other qualifying service. ID at 11.
¶8         We have reviewed OPM’s records, including its refund authorization, the
      appellant’s IRR, and its 1982 correspondence regarding the refund. Based on that
      review, we agree with the administrative judge that OPM’s evidence gives rise to
      an inference that the appellant actually received the refund. IAF, Tab 7 at 13-35;
      see Danganan, 55 M.S.P.R. at 269.
¶9         We also agree with the administrative judge’s determination that the
      appellant’s testimony was not credible. See ID at 8. The Board will defer to the
      credibility determinations of an administrative judge when they are based,
      explicitly or implicitly, upon the observation of the demeanor of witnesses
      testifying at a hearing because the administrative judge is in the best position to
      observe the demeanor of the witnesses and determine which witnesses were
      testifying credibly.   Haebe v. Department of Justice, 288 F.3d 1288, 1300-01
      (Fed. Cir. 2002). The administrative judge found that the appellant’s testimony
      was not credible in light of its inconsistencies with other evidence of record and
      the inherent improbability of the events occurring in the way the appellant
      contended. ID at 8. Because the administrative judge’s credibility findings are
      based on proper considerations, supported by the record, and implicitly based on
      her observations, we will defer to them on review.         See Haebe, 288 F.3d
      at 1300-01.
¶10        We note that the Board has held that it may be appropriate to hold OPM
      responsible for its own inability to defend the appeal where the appellant put
      OPM on notice shortly after her refund application that she had not received her
      refund.   Manoharan, 103 M.S.P.R. 159, ¶ 18.          However, in this case, the
      appellant applied for her refund in 1979 and 1980, IAF, Tab 7 at 32, 34, and did
      not assert to OPM that she did not receive her refund until 2014, when she
      indicated in her retirement application that she had not previously filed any
      application under the CSRS, id. at 9. We therefore find that OPM should not be
                                                                                       7

      held responsible for its inability to prove that the appellant received the refund.
      See Manoharan, 103 M.S.P.R. 159, ¶ 18.
¶11        The Board also has held that, although OPM’s records typically will
      outweigh an appellant’s uncorroborated testimony that she never actually
      received a refund, an appellant’s credible explanation of events, supported by
      documentary evidence, may be sufficient to overcome OPM’s evidence that it
      previously refunded the appellant’s retirement contributions.        Id., ¶ 12-15.
      However, as previously discussed, we defer to the administrative judge’s finding
      that the appellant’s testimony was not credible; we also find that her testimony is
      not supported by documentary evidence. We therefore find that the appellant’s
      testimony is insufficient to overcome OPM’s evidence that she received a refund
      of her retirement contributions. See Sosa, 76 M.S.P.R. at 686.
¶12        Accordingly, we agree with the administrative judge’s finding that the
      evidence as a whole does not establish that the appellant failed to receive the
      refund of her retirement contributions. See ID at 10-11. We therefore also agree
      that, because the appellant withdrew her retirement deductions, was not presently
      employed in the federal government, and did not have any other qualifying
      service, she was not entitled to make a deposit or to receive a deferred annuity.
      ID at 11 (citing 5 U.S.C. § 8342(a)); see Morales v. Office of Personnel
      Management, 58 M.S.P.R. 5, 8-9 (1993)).

                      NOTICE TO THE APPELLANT REGARDING
                         YOUR FURTHER REVIEW RIGHTS
           You have the right to request review of this final decision by the United
      States 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
                                                                                  8

      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 United States 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 United
States     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
United States 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 Merit Systems Protection Board neither endorses the services
                                                                                9

provided by any attorney nor warrants that any attorney will accept representation
in a given case.




FOR THE BOARD:                           ______________________________
                                         William D. Spencer
                                         Clerk of the Board
Washington, D.C.
