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Adonis Berle Whitby v. Office of Personnel Management

April 11, 2011

ADONIS BERLE WHITBY, PETITIONER,
v.
OFFICE OF PERSONNEL MANAGEMENT, RESPONDENT.



Petition for review of the Merit Systems Protection Board in Case No. AT0842100562-I-1.

Per curiam.

NOTE: This disposition is nonprecedential.

Before LOURIE, PLAGER, and LINN, Circuit Judges.

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 Employees 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 additional 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 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 address 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 separation 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 benefit 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 retirement 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") issued 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 understand the refund form and that he did not receive the refund check to be "not credible." Id. at 5-6. Specifically, the AJ found "it inherently implausible . . . that an individual of [Whitby]'s intelligence failed to understand the simple refund request form," as Whitby "demonstrated a very good memory and a high level of sophistication 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, including 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 procedures to either deliver the check or return it to the Treasury. 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.

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 ...


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