Whitby v. Office of Personnel Management , 417 F. App'x 967 ( 2011 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
__________________________
ADONIS BERLE WHITBY,
Petitioner,
v.
OFFICE OF PERSONNEL MANAGEMENT,
Respondent.
__________________________
2011-3009
__________________________
Petition for review of the Merit Systems Protection
Board in Case No. AT0842100562-I-1.
____________________________
Decided: April 11, 2011
____________________________
ADONIS BERLE WHITBY, of Macon, Georgia, pro se.
K. ELIZABETH WITWER, Trial Attorney, Commercial
Litigation Branch, Civil Division, of Washington, DC, for
respondent. With her on the brief were TONY WEST,
Assistant Attorney General, JEANNE E. DAVIDSON, Direc-
tor, and REGINALD T. BLADES, JR., Assistant Director.
__________________________
WHITBY v. OPM 2
Before LOURIE, PLAGER, and LINN, Circuit Judges.
PER CURIAM.
Adonis Berle Whitby petitions for review of the final
decision of the Merit Systems Protection Board (“the
Board”) upholding the denial by the Office of Personnel
Management (“OPM”) of Whitby’s application for federal
retirement benefits. Whitby v. Office of Pers. Mgmt., No.
AT-0842-10-0562-I-1 (M.S.P.B. July 16, 2010) (“Initial
Decision”), (M.S.P.B. Sept. 28, 2010) (“Final Order”). We
affirm.
BACKGROUND
Whitby served in the military from June 4, 1967, to
January 26, 1970, and again from October 5, 1976, to
October 4, 1980. Whitby paid the requisite deposit for an
annuity for his military service into the Federal Employ-
ees Retirement System (“FERS”). Whitby also served as a
federal civilian employee under FERS from March 19,
1984, through April 9, 1993, and again from September 8,
2002, through December 20, 2007.
In April 1993, after nine years of civilian service,
Whitby submitted an application for a refund of his
military deposit and all of his FERS annuity contributions
up to that date. Whitby admits that he filled out, signed,
and submitted the refund form to OPM. Also, because he
was married, his wife and two witnesses signed an addi-
tional form consenting to the disbursement of the refund.
The refund request form, entitled “Application for Refund
of Retirement Deductions,” states in bold above Whitby’s
signature block, “I understand that payment of a refund
will result in permanent forfeiture of any retirement
rights that are based on the period(s) of service which the
3 WHITBY v. OPM
refund covers, as explained on the reverse side of this
form.” A15.
Whitby, however, incorrectly identified his address on
the refund form. He indicated that he wanted the refund
check mailed to “40C Twin Lakes, Clifton Park, NY
12065.” But, while “Twin Lakes” is the general name for
the region he lived in at the time, his correct street ad-
dress was “Friar’s Gate.” All other address information,
including Whitby’s name, street number, city, state, and
zip code, were correct.
In January 2008, following Whitby’s second separa-
tion from federal civilian service, Whitby submitted an
Application for Deferred or Postponed Retirement to
OPM. On the application, Whitby correctly identified the
dates of his prior military and civilian service, but he
failed to acknowledge that he had previously filed for a
refund of his military deposit and all of his pre-April 1993
FERS annuity contributions. OPM denied Whitby’s
application for retirement benefits under FERS on the
basis that Whitby lacked ten years of creditable service
because of his 1993 refund.
Whitby appealed OPM’s denial of his retirement bene-
fit application to the Board. Whitby argued that he never
received the 1993 refund check because of the incorrect
street address on the refund form, and forgot to inquire
about the lost check until OPM denied his 2008 retire-
ment benefit application. Whitby also argued that he did
not understand the nature of the 1993 refund form.
On July 16, 2010, the administrative judge (“AJ”) is-
sued an initial decision affirming OPM’s denial of
Whitby’s retirement benefit application. Initial Decision,
at 2. The AJ found Whitby’s testimony that he did not
WHITBY v. OPM 4
understand the refund form and that he did not receive
the refund check to be “not credible.” Id. at 5-6. Specifi-
cally, the AJ found “it inherently implausible . . . that an
individual of [Whitby]’s intelligence failed to understand
the simple refund request form,” as Whitby “demon-
strated a very good memory and a high level of sophistica-
tion in dealing with . . . complex issues.” Id. at 5. The AJ
also found it implausible that Whitby forgot to notify
OPM of the allegedly missing check until January 2008,
as Whitby remembered and provided detailed descriptions
of other checks he had received from the government
following his 1993 separation from federal service, includ-
ing a separation incentive check of roughly $9,000 and a
refund check for his Thrift Savings Plan contributions of
around $40,000. Id. at 5-6.
The AJ also found that OPM had provided uncon-
tested evidence that Whitby’s refund application had been
received and processed by OPM, that OPM had directed
the Treasury to issue the refund check to the address
provided, and that no record existed of the check being
returned as undeliverable. Id. at 6. The AJ excused OPM
from producing definitive proof that Whitby had deposited
the check because Whitby’s fifteen-year delay in reporting
the check missing caused that proof to be lost. Id. at 6-7
(citing Rint v. Office of Pers. Mgmt., 48 M.S.P.R. 69, 71-
72, aff’d, 950 F.2d 731 (Fed. Cir. 1991)). The AJ also
relied on the fact that the U.S. Postal Service (“USPS”)
had Whitby’s correct name and address and that, as
Whitby acknowledged, § 507.1.5.1 of its Domestic Mail
Manual required the Postal Service to undertake proce-
dures to either deliver the check or return it to the Treas-
ury. Id. at 7. Based on the record as a whole, the AJ
concluded that it was more likely than not that Whitby
received the refund check despite the inaccurate street
address. Id.
5 WHITBY v. OPM
Whitby filed a petition for review by the full Board.
The Board denied Whitby’s petition on September 28,
2010, making the AJ’s initial decision the final decision of
the Board. Whitby timely appealed to this court. We
have jurisdiction pursuant to 28 U.S.C. § 1295(a)(9) and 5
U.S.C. § 7703(b)(1).
DISCUSSION
Our review of a decision by the Board is limited by
statute. We must affirm the Board’s decision unless we
find it to be “(1) arbitrary, capricious, an abuse of discre-
tion, or otherwise not in accordance with law; (2) obtained
without procedures required by law, rule, or regulation
having been followed; or (3) unsupported by substantial
evidence.” 5 U.S.C. § 7703(c); Kewley v. Dep’t of Health &
Human Servs., 153 F.3d 1357, 1361 (Fed. Cir. 1998). An
applicant for federal retirement benefits bears the burden
of showing that he is entitled to the benefit sought by a
preponderance of the evidence. Cheeseman v. Office of
Pers. Mgmt., 791 F.2d 138, 140-41 (Fed. Cir. 1986).
Whitby argues that the incorrect street address on his
1993 refund form resulted in the non-delivery of his
refund check, and that the AJ improperly shifted the
burden onto him to prove non-receipt despite the use of
the wrong address. He points to the absence of any
reference to the refund on his tax returns as proof that he
never received the refund check. Whitby also presses two
alternative arguments: First, he argues that he did not
think that the refund form he signed was for his retire-
ment annuity. He also argues that the refund should be
null and void because the refund form required the disclo-
sure of current as well as former spouses, and he failed to
disclose the existence of two former spouses.
WHITBY v. OPM 6
We first address Whitby’s theory that his failure to
disclose the existence of two former spouses on his 1993
refund form rendered the refund null and void. Not only
is Whitby precluded from raising this argument on appeal
because he did not raise it before the Board, see Golden
Bridge Tech., Inc. v. Nokia, Inc., 527 F.3d 1318, 1322-23
(Fed. Cir. 2008), but also it rests on a contract theory of
relief inapplicable to federal retirement benefits, which
are governed by statute, not contract, see Zucker v. United
States, 758 F.2d 637, 640 (Fed. Cir. 1985). Furthermore,
even accepting Whitby’s theory of relief, he would then be
required to return the received refund to the government.
Yet, not only is Whitby unprepared to redeposit his 1993
refund, claiming as he does that he never received it, but
also he is unable to do so, since he is not currently em-
ployed in a federal position subject to FERS. See Rint, 48
M.S.P.R. at 72.
We also reject Whitby’s alternative argument: that he
did not understand that the refund form he signed in
1993 was for a retirement annuity. The AJ found
Whitby’s testimony to this effect “inherently implausible,”
noting that Whitby “demonstrated a very good memory
and a high level of sophistication in dealing with . . .
complex issues.” Initial Decision, at 5. Such credibility
determinations are virtually unreviewable on appeal.
Kahn v. Dept. of Justice, 618 F.3d 1306, 1313 (Fed. Cir.
2010). Moreover, the refund form itself states in all
capital letters on the top that it is an “Application for
Refund of Retirement Deductions” from the “Federal
Employees Retirement System,” and the form states in
bold above the signature block that “payment of a refund
will result in permanent forfeiture of any retirement
rights” for the listed periods of service. A15. Whitby also
testified in great detail about the nature of other checks
he received from the government after he left federal
7 WHITBY v. OPM
service in 1993, including a check for a refund of his
Thrift Savings Plan contributions. Initial Decision, at 5.
Accordingly, nothing in the record undermines the AJ’s
determination.
Finally, we address Whitby’s main argument: that
the AJ improperly shifted the burden onto him to prove
non-receipt of the refund when the incorrect street ad-
dress resulted in the non-delivery. In such a situation,
Whitby claims, Cheeseman, 791 F.2d at 140-41, and Rint,
48 M.S.P.R. at 71-72, do not apply. We disagree.
In Cheeseman, we upheld the Board’s decision to place
the burden of proving entitlement to retirement benefits
on the applicant. 791 F.2d at 141. Applying that burden
in Rint, the Board held, and we affirmed, that OPM need
not provide definitive proof that a refund check issued by
the Treasury was deposited when the applicant’s signifi-
cant delay in reporting the check missing resulted in the
loss of such proof. 48 M.S.P.R. at 71-72. Whitby seeks
retirement benefits, and thus he bears the burden set out
in Cheeseman. And, as in Rint, he waited fifteen years
before reporting his 1993 refund check missing, resulting
in the loss of Treasury records that could have shown that
the check was deposited. Accordingly, contrary to
Whitby’s assertion, Rint applies here and relieves OPM
from producing proof that Whitby actually deposited the
1993 refund check. The only question, therefore, is
whether the undisputed evidence that the Treasury sent
Whitby’s refund check to the wrong street address shifted
the burden of proof.
Whitby cites several cases in support of his argument,
including Fluker v. Brown, 5 Vet. App. 296 (1993), and
Piano v. Brown, 5 Vet. App. 25 (1993). In both Fluker and
Piano, the United States Court of Veterans Appeals held
WHITBY v. OPM 8
that the failure of the Department of Veterans Affairs
(“VA”) to mail a decision of the Board of Veterans’ Appeals
to the veteran’s correct address constituted clear evidence
sufficient to rebut the presumption of regularity, shifting
the burden to the VA to show that the decision was
mailed to the last known address of record in accordance
with statute. Fluker, 5 Vet. App. at 298; Piano, 5 Vet.
App. at 27. Unlike Fluker and Piano, however, it was
Whitby who caused the address error, and thus the incor-
rect address in no way reflects on the regularity of OPM’s
procedures. Moreover, if an incorrectly mailed item is
actually received, as the AJ found here, the presumption
of regularity becomes moot. Baxter v. Principi, 17 Vet.
App. 407, 410 (2004).
Yet, even if the use of an incorrect address did shift
the burden to OPM in this case, the record shows that
OPM met that burden. The AJ found that the Treasury
issued Whitby’s refund check, but to the incorrect ad-
dress, and that no record existed of the refund check
being returned as undeliverable to either the Treasury or
OPM. Initial Decision, at 6-7. The AJ also found that
USPS had Whitby’s correct name and address, and that
USPS’s Domestic Mail Manual required the Postal Ser-
vice to undertake procedures to either deliver the check to
Whitby or return it to the sender. Id. at 7. Furthermore,
the AJ made a credibility determination against Whitby,
finding not credible his testimony that he did not receive
the refund check and then forgot about it until OPM
denied his retirement application fifteen years later. Id.
at 5-6. Finally, Whitby’s evidence that the 1993 refund
does not appear on his tax forms not only appears to have
not been presented to the Board, but also appears incom-
plete, and thus unreliable, as the tax forms also do not
reflect monies from the government that Whitby admits
having received in 1993.
9 WHITBY v. OPM
Accordingly, for the reasons stated herein, we affirm
the Board’s final decision upholding the denial by OPM of
Whitby’s application for a retirement annuity under
FERS.
AFFIRMED
COSTS
No costs.