NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
KATHY A. MORRISON,
Petitioner,
v.
OFFICE OF PERSONNEL MANAGEMENT,
Respondent.
______________________
2013-3133
______________________
Petition for review of the Merit Systems Protection
Board in No. DE0842120298-I-1.
______________________
Decided: November 8, 2013
______________________
KATHY A. MORRISON, of Camp Verde, Arizona, pro se.
JOSEPH E. ASHMAN, Trial Attorney, Commercial Liti-
gation Branch, Civil Division, United States Department
of Justice, of Washington, DC, for respondent. With him
on the brief were STUART F. DELERY, Assistant Attorney
General, JEANNE E. DAVIDSON, Director, and DEBORAH A.
BYNUM, Assistant Director.
______________________
2 MORRISON v. OPM
Before LOURIE, BRYSON, and O’MALLEY, Circuit
Judges.
PER CURIAM.
Kathy A. Morrison (“Morrison”) appeals from the final
decision of the Merit Systems Protection Board (“the
Board”) denying her petition for review of the denial of
her application for a deferred annuity. See Morrison v.
Office of Pers. Mgmt., No. DE-0842-12-0298-I-1 (M.S.P.B.
Aug. 21, 2012) (“Initial Decision”); (M.S.P.B. May 31,
2013) (“Final Order”). Because substantial evidence
supported the Board’s denial of Morrison’s application, we
affirm.
BACKGROUND
Morrison was employed at the Department of Veter-
ans Affairs Medical Center in Prescott, Arizona from May
1992 until October 1999. Resp’t’s App. 41. In September
2011, she contacted the Office of Personnel Management
(“OPM”), asking whether she had received all of the funds
that she had contributed to her retirement when she left
federal employment in 1999. Id. at 52. Specifically,
Morrison requested that, “[I]f I wasn’t sent all of my funds
I would appreciate them being sent to me.” Id. OPM
informed Morrison that funds were in her account but
that she was eligible for a deferred annuity. Id. at 49.
Additionally, OPM noted that Morrison could withdraw
her contributions of $1,242.51 plus any payable interest,
but that she “may lose [her] right to a deferred annuity.”
Id.
In response, Morrison requested and completed a
Federal Employees Retirement System (“FERS”) Applica-
tion for a Refund of Retirement Deductions (Form SF
3106). Id. at 41–42. Accompanying the form was a letter
from Morrison stating that “[a]long with my application, I
am writing to request a refund of whatever funds I have
due to me in my annuity account . . . .” Id. at 45. The
MORRISON v. OPM 3
Form SF 3106 included the statement that: “If you were
not employed under FERS on or after October 28, 2009,
payment of a refund of your FERS deductions will perma-
nently eliminate your retirement rights for the period(s) of
FERS service which the refund covers.” Id. at 38 (empha-
sis original). Pursuant to her request, OPM processed
Morrison’s application and issued to her a check for
$2,375.19. Id. at 37.
Morrison later contacted OPM stating that she wished
to receive her entire deferred annuity in a lump sum
payment, rather than a refund of only her retirement
deductions. Id. at 34. She additionally submitted a FERS
Application for Deferred or Postponed Retirement (Form
RI 92-19). Id. at 29. OPM informed Morrison that all
retirement deductions withheld during her federal service
had been refunded to her and that no further benefits
were due. Id. at 25. She responded, stating that she had
misunderstood OPM’s prior notice and the Form SF 3106,
and wanted to file for a deferred annuity. Id. at 21–24.
OPM denied her application pursuant to 5 U.S.C.
§ 8414(a), on the basis that she was not eligible for a
retirement annuity because she had previously received a
refund on her retirement deductions. Id. at 19–20.
Morrison appealed to the Board. In August 2012, the
Administrative Judge (“AJ”) issued an initial decision
affirming OPM’s denial of Morrison’s retirement annuity.
Initial Decision at 5. Specifically, the AJ found that a
refund of retirement contributions prevented Morrison
from receiving a retirement annuity because “‘[p]eriods of
service for which employee contributions have been
refunded are not creditable service in determining wheth-
er the employee has sufficient service to have title to an
annuity for any other purpose.’” Id. at 3 (quoting 5 C.F.R.
§ 843.202(b) (2008)). Additionally, the AJ concluded that
she had not established that any of the exceptions to that
rule applied—specifically stating that she was not men-
tally incompetent at the time she applied for the refund,
4 MORRISON v. OPM
that the refund was validly issued, and that she was
entitled to receive the refund. Id. at 3–4. Morrison
petitioned for reconsideration by the full Board; that
petition was denied. Final Order at 2–3. The initial
decision of the AJ thus became the decision of the Board.
Morrison appealed to this court. We have jurisdiction
pursuant to 28 U.S.C. § 1295(a)(9).
DISCUSSION
The scope of our review in an appeal from a Board de-
cision is limited. We can only set aside the Board’s deci-
sion if it was “(1) arbitrary, capricious, an abuse of
discretion, 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); see Briggs v.
Merit Sys. Prot. Bd., 331 F.3d 1307, 1311 (Fed. Cir. 2003).
The Board’s decision is supported by substantial evidence
“if it is supported by such relevant evidence as a reasona-
ble mind might accept as adequate to support a conclu-
sion.” Brewer v. U.S. Postal Serv., 647 F.2d 1093, 1096
(Ct. Cl. 1981) (internal quotation marks omitted).
Morrison argues that she did not understand that she
would lose her deferred annuity by obtaining a refund of
her previous contributions. She contends that she
thought that her deferred annuity would remain intact
even after receiving her refund. The government re-
sponds that Morrison’s misunderstanding does not change
the law, that the Board considered all relevant law and
facts, and that substantial evidence supports the Board’s
denial of Morrison’s application for a deferred annuity.
We agree with the government. The Board correctly
determined that Morrison was not entitled to a deferred
annuity, and that conclusion was supported by substan-
tial evidence. Morrison wrote to OPM requesting all of
her contribution funds, requested the Form SF 3106, and
MORRISON v. OPM 5
completed the application. Resp’t’s App. 45–52. Both
OPM’s letter responding to Morrison’s original request
and the Form SF 3106 warned her that by requesting a
refund of previous contributions, an applicant may lose
the right to a deferred annuity. Id. at 38, 49. Morrison
nonetheless completed the application and sent it to OPM.
Id. at 38–44. OPM processed the application and refund-
ed to Morrison all of her contributions. Id. at 37. By
taking those steps, Morrison received her previous re-
tirement contributions and consequently, “permanently
eliminate[d her] retirement rights for the period(s) of
FERS service which the refund covers.” Id. at 38 (empha-
sis original).
Additionally, the Board correctly determined that
Morrison did not qualify for any of the exceptions that
would allow an applicant to receive a refund but still
qualify for a deferred annuity. An applicant who receives
a refund of retirement contributions may still be eligible
to receive a deferred annuity if the applicant: (1) was
mentally incompetent at the time they applied for and
received a refund; (2) erroneously received the lump sum
payment; or (3) was not entitled to receive the refund at
the time it was paid. Wadley v. Office of Pers. Mgmt., 103
M.S.P.R. 227, ¶11 (2006) (citing Yarbough v. Office of
Pers. Mgmt., 770 F.2d 1056, 1060 (Fed. Cir. 1985); OPM’s
CSRS and FERS Handbook § 60A1.1–3C (1998)). Morri-
son conceded to the Board that she was not mentally
incompetent at the time she applied for the refund.
Initial Decision at 4. Morrison also presented no evidence
to show either that the payment that she received was
erroneous or that she was not entitled to receive the
refund. Id. Morrison has not pointed to any additional
evidence or facts that the Board overlooked in coming to
these conclusions. Her alleged misunderstanding of
OPM’s clear notice that receipt of her contributions would
eliminate any right to a deferred annuity does not provide
6 MORRISON v. OPM
her with an exemption from the law. Substantial evi-
dence thus supports the Board’s conclusion that Morrison
was not entitled to a deferred annuity under FERS.
We have considered Morrison’s remaining arguments
and conclude that they are without merit. For the forego-
ing reasons, the decision of the Board is
AFFIRMED
COSTS
No costs.