Opinion

Gloria McClain v. Office of Personnel Management

Court: Merit Systems Protection Board
Filed: Jul 12, 2024
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 30.3%

concluding that payment of an annuity that would be in direct contravention of the Federal statute upon which the applicant’s ultimate claim to the funds must rest would violate the Appropriations Clause of the Constitution

How later courts described this case

concluding that payment of an annuity that would be in direct contravention of the Federal statute upon which the applicant’s ultimate claim to the funds must rest would violate the Appropriations Clause of the Constitution
considering whether an appellant was formally declared incompetent or had a legal guardian as relevant factors in assessing competency
considering a claim that an individual’s election to receive a refund of her retirement contributions was not binding because she was not competent, but concluding that the evidence did not support a finding of mental incompetence

Written by the judges who cited it.

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

GLORIA Y. MCCLAIN, DOCKET NUMBER

Appellant, DC-0831-19-0020-I-1

OFFICE OF PERSONNEL DATE: July 12, 2024

MANAGEMENT,

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Gloria Y. McClain , Clinton, Maryland, pro se.

Alison Pastor , Washington, D.C., for the agency.

BEFORE

Cathy A. Harris, Chairman

Raymond A. Limon, Vice Chairman

Henry J. Kerner, Member*

*Member Kerner did not participate in the adjudication of this appeal.

FINAL ORDER

The appellant has filed a petition for review of the initial decision, which

affirmed the decision of the Office of Personnel Management (OPM) finding her

ineligible to receive annuity benefits under the Civil Service Retirement System

(CSRS). Generally, we grant petitions such as this one only in the following

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

circumstances: 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. 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).

BACKGROUND

The following facts are undisputed. Between 1980 and 1986, the appellant

was employed by the U.S. Air Force, first at Maxwell Air Force Base, Alabama,

then in Washington, D.C. Initial Appeal File (IAF), Tab 11 at 19, 21. Her

service with the Air Force was covered by CSRS. Id. at 19. She resigned from

her position as a Secretary in June 1986 and submitted to OPM a request for the

refund of her retirement deductions. Id. at 19, 21. On August 4, 1986, OPM

refunded her retirement deductions for that period of service in the amount of

$5,538.33. Id. at 12.

In 1992, the appellant reentered the Federal service as a Program Specialist

for the Department of State in Washington, D.C. IAF, Tab 1 at 2, Tab 11 at 10,

Tab 16, Hearing Compact Disc (HCD) (testimony of the appellant). Due to the

emotional effects of the deaths of her mother, father, and sister in 2011 and 2012,

the appellant resigned from that position in 2015. IAF, Tab 11 at 17, Tab 14 at 2;

HCD (testimony of the appellant). On April 8, 2015, she requested a refund of

her retirement deductions for her service with the Department of State. 2 IAF,

Tab 11 at 14-15. OPM issued the appellant a refund of her deductions in the

amount of $12,294.29. Id. at 12, 17-18.

Thereafter, the appellant submitted an Application for Deferred Retirement.

Id. at 9-11. On July 20, 2018, OPM issued the appellant a final decision

informing her that she was not eligible to receive annuity benefits under CSRS

because she had previously requested and received refunds of her deductions. Id.

at 12-13. The appellant filed the instant appeal with the Board challenging

OPM’s decision. IAF, Tab 1. After holding a telephonic hearing during which

the appellant was the only witness to testify, the administrative judge issued an

initial decision agreeing with OPM and finding that the appellant failed to show

that she was entitled to an annuity. IAF, Tab 17, Initial Decision (ID) at 3-4.

The appellant has filed a petition for review, and OPM has responded.

Petition for Review (PFR) File, Tabs 1, 4.

DISCUSSION OF ARGUMENTS ON REVIEW

The appellant bears the burden of proving her entitlement to the retirement

benefits she seeks by a preponderance of the evidence. See Cheeseman v. Office

of Personnel Management, 791 F.2d 138, 140-41 (Fed. Cir. 1986);

5 C.F.R. § 1201.56(b)(2)(ii). An employee’s request and receipt of a refund of

her CSRS contributions generally extinguishes her right to receive a retirement

annuity, unless she is later reemployed in a covered position and makes a

redeposit of previous retirement contributions. Youngblood v. Office of Personnel

Management, 108 M.S.P.R. 278, ¶ 12 (2008).

The Application for Refund of Retirement Deductions shows that the appellant

requested a refund of her deductions from 1987 through 2015. IAF, Tab 11 at 14.

However, the appellant testified that she was employed as a Government contractor

prior to her reentry into the civil service in 1992. HCD (testimony of the appellant).

Thus, her time between 1987 and 1992 was not covered by CSRS, and she did not

receive a refund for that time period.

OPM’s letter informing the appellant that she was not entitled to an annuity

explained that she filed for and received refunds of her deductions for the time

periods for which she would have been eligible to collect an annuity. IAF,

Tab 11 at 12. It further informed her that those refunds voided her right to an

annuity, and that because she was not currently employed by the Federal

Government, she was not eligible to make a redeposit of the refunds. Id. The

administrative judge agreed with OPM, finding that the appellant did not deny

applying for and receiving the refunds and noting that she had not alleged that she

is reemployed with the Federal Government. ID at 4. Based on the

well-established principle that an employee cannot collect an annuity when she

has requested and received a refund of her retirement deductions, and is not

reemployed with the Federal Government, we agree with OPM and the

administrative judge that the appellant is not eligible to collect an annuity. See

Youngblood, 108 M.S.P.R. 278, ¶ 12.

In her petition for review, the appellant argues that she suffered from

depression and was unable to make sound decisions when she elected to apply for

the refunds of her retirement deductions. PFR File, Tab 1 at 4. She further

argues that the administrative judge and OPM did not consider her mental state

when issuing their decisions. Id. We find these arguments to be without merit.

The initial decision reflects that the administrative judge considered the

appellant’s mental health status, stating that he was sympathetic to her situation,

but found that she was nonetheless not eligible to receive an annuity. ID at 4.

Regarding whether the appellant’s mental state impacts her eligibility to

collect an annuity, the Board and its reviewing court have considered an

exception to the general rule that receipt of a refund of deductions voids an

annuity, finding that an individual who was mentally incompetent at the time she

applied for and received the refund is not responsible for that election. Wadley

v. Office of Personnel Management, 103 M.S.P.R. 227, ¶ 11 (2006); see

Yarbrough v. Office of Personnel Management, 770 F.2d 1056, 1060-61 (Fed. Cir.

1985) (considering a claim that an individual’s election to receive a refund of her

retirement contributions was not binding because she was not competent, but

concluding that the evidence did not support a finding of mental incompetence).

We find this exception inapplicable here because the record does not support a

finding that the appellant was incompetent when she elected to request a refund

of her deductions. The doctor’s note upon which the appellant relied below is

dated March 18, 2019, and states that she has been under the physician’s care for

9 years. IAF, Tab 14 at 4. Thus, this physician was not treating the appellant at

the time of her first request for a refund of her deductions in 1986 and cannot

attest to her mental state at that time.

The letter goes on to summarize the appellant’s depression and attributes it

to the death of her mother and the loss of her job. Id. Concerning the appellant’s

decision to request a refund of her deductions in 2015, the physician stated,

“[o]bviously, she had abnormal thinking and could not make such decisions.” Id.

Although we sympathize with the appellant, we find this statement to be

insufficient to establish that she was incompetent to make the decisions at issue

here. The record contains no evidence that she was formally adjudicated to be

incompetent or that a legal guardian has been appointed for her at any time.

Therefore, we find that the appellant’s mental state does not exempt her from the

general rule that a refund of deductions voids a future annuity. See Yarbrough,

770 F.2d at 1061 (considering whether an appellant was formally declared

incompetent or had a legal guardian as relevant factors in assessing competency).

The appellant also argues on review that OPM incorrectly placed her in the

Federal Employees Retirement System (FERS) and that she never received

counseling on retirement issues when she left the Federal service. PFR File,

Tab 1 at 4-5. We find these arguments also to be without merit. The appellant

has not pointed to any document indicating that she was placed in FERS; her

applications for refunds of her deductions, her application for deferred retirement,

and OPM’s decision all reference CSRS. IAF, Tab 11 at 9 -21. Nonetheless, the

principle that the request and receipt of a refund of deductions voids eligibility

for an annuity applies regardless of whether the employee made retirement

contributions to CSRS or FERS. See 5 U.S.C. §§ 8342(a), 8424(a).

Regarding the assertion that OPM never counseled the appellant on

retirement issues upon her resignation, the record reflects that the appellant was

on notice that the request and receipt of a refund of her deductions would void her

eligibility to collect an annuity. The 1986 Application for Refund of Retirement

Deductions informed the appellant that “[i]f you have more than 5 years of

service, you may be entitled to annuity rights which will be forfeited by payment

of this refund unless you are later reemployed subject to the Civil Service

Retirement Law.” IAF, Tab 11 at 20. Therefore, the appellant was aware as early

as 1986 that a refund of her deductions would impact her eligibility for an

annuity. Regarding her second request for a refund, although the full

documentation for that request does not appear to be included in the record, the

relevant form that she completed, Standard Form 2802, id. at 14-16, is available

on OPM’s website and provides instructions for the completion of the form,

including a caution that an applicant’s entitlement to an annuity will be forfeited

upon the receipt of a refund. Regardless of the appellant’s claims below and on

review, OPM cannot be required to pay an annuity when an applicant does not

meet the statutory requirements for it. See Office of Personnel Management

v. Richmond, 496 U.S. 414, 423-24, 434 (1990) (concluding that payment of an

annuity that would be in direct contravention of the Federal statute upon which

the applicant’s ultimate claim to the funds must rest would violate the

Appropriations Clause of the Constitution); see also Pagum v. Office of Personnel

Management, 66 M.S.P.R. 599, 601 (1995) (stating that when an applicant does

not meet the requirements for an annuity, OPM cannot be required to pay the

annuity).

Based on the foregoing, we deny the appellant’s petition for review and

affirm the initial decision, which affirmed the final decision by OPM denying the

appellant’s application for CSRS annuity benefits.

NOTICE OF APPEAL RIGHTS 3

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 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).

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.

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.

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

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. 4 The court of appeals must receive your petition for

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