Yarbrough v. Office of Personnel Management, 84-1341

Citation770 F.2d 1056
Decision Date26 August 1985
Docket NumberNo. 84-1341,84-1341
PartiesGeorge W. YARBROUGH, Jr., Petitioner, v. OFFICE OF PERSONNEL MANAGEMENT, Respondent. Appeal
CourtU.S. Court of Appeals — Federal Circuit

Amy E. Wind, Kator, Scott & Heller, of Washington, D.C., argued for petitioner. With her on the brief was Irving Kator.

Helene M. Goldberg, Commercial Litigation Branch, Dept. of Justice, of Washington, D.C., argued for respondent. With her on the brief were Richard K. Willard, Acting Asst. Atty. Gen., David M. Cohen, Director and Robert A. Reutershan.

Earl A. Sanders, Office of the General Counsel, Office of Personnel Management, of Washington, D.C., of counsel.

Before FRIEDMAN, BALDWIN, and BISSELL, Circuit Judges.

BALDWIN, Circuit Judge.

This appeal is from the decision of the Merit Systems Protection Board (MSPB or board), sustaining the Office of Personnel Management's (OPM) decision that Dorothy Yarbrough was not eligible for discontinued service retirement on the basis of involuntary separation. We affirm.

Background

Petitioner, George W. Yarbrough, Jr., who is the stepson and executor of the deceased former federal employee for the National Security Agency (NSA), Dorothy Yarbrough, filed an application with OPM for a retroactive retirement annuity for his stepmother. He contended that OPM should pay Mrs. Yarbrough's estate a sum equal to the amount Mrs. Yarbrough would have received as an annuity from the time of her separation from federal service in January of 1969, until her death in June of 1982, less the refund of retirement deductions she applied for and received from the Civil Service Commission (OPM's predecessor) in March 1971.

Mrs. Yarbrough worked as a cryptanalyst for NSA for over 25 years. Her performance was entirely satisfactory and she received very favorable ratings from her supervisors. In March 1968 her father died and so she went on leave. She requested and was granted leave without pay (LWOP) until June 28, 1968. Three further extensions of LWOP were requested by Mrs. Yarbrough and granted by NSA, extending her LWOP through December 31, 1968. Her supervisor granted the third extension on the condition that there would be no further extensions and that if Mrs. Yarbrough could not report to duty on January 2, 1969, she would "submit her resignation ... in sufficient time so that she will not be considered Absent Without Leave." On November 22, 1968, before the final extension of LWOP expired, her supervisor wrote a letter informing her that after January 1, 1969, the division of NSA in which she worked was expected to relocate near the Baltimore airport--about ten miles further from her home than the present facility. He said this information may be useful to her "in reaching [her] decision which will be coming up soon." On January 6, 1969, Mrs. Yarbrough submitted I regret that I was not able to return to duty at N.S.A. on 2 Jan. '69, due to the fact that I have had the flu. I informed my supervisor, Mr. James Hudson B 4303, that it would be impossible to return on that date. He replied that no more L.W.O.P. could be extended. Therefore I request that you accept my resignation from N.S.A.

to NSA a letter of resignation, the body of which read:

I would appreciate some information on my Govt. Ins. Policy and also Health Ins.

Approximately one month later, upon petition of one of her sisters-in-law, Mrs. Yarbrough was committed to a state hospital for treatment of inebriety. It appears that Mrs. Yarbrough was released from the hospital either on February 17, 1969 or perhaps sometime in March 1969.

The next relevant item is a March 4, 1970 letter from NSA's Personnel Officer informing Mrs. Yarbrough that she could obtain the insurance information she desired by writing to the Civil Service Commission. On April 14, she wrote the Commission asking when and how she would be eligible for retirement payments and how much she had paid into the retirement fund. On May 19, 1970, the Commission replied that she would be entitled to a deferred annuity beginning at age 62 and that in the alternative she could choose to withdraw her retirement contributions and receive a refund of $10,757.03 plus interest. The Commission's letter described the advantages and disadvantages of the two available courses of action. Some ten months later, Mrs. Yarbrough filed an application for refund of her contributions. On March 26, 1971, the money credited to her retirement account was refunded to her with interest. Mrs. Yarbrough died on June 11, 1982.

Petitioner, as executor of Mrs. Yarbrough's estate, applied to OPM for civil service annuity benefits for the period between her separation from federal service and her death. Petitioner asserts that Mrs. Yarbrough's resignation from NSA was "involuntary" within the meaning of 5 U.S.C. Sec. 8336(d)(1) 1 and that she was entitled to an annuity under that provision commencing on the day after the date of her separation. OPM denied the application on the ground that no benefits were payable because Mrs. Yarbrough had elected to receive a refund of her contributions to the retirement fund. Appeal to the MSPB followed.

In an initial decision, the board's presiding official upheld the OPM decision, determining that Mrs. Yarbrough was not eligible for an annuity because her resignation was not an involuntary separation and her election of a refund voided any annuity rights. The presiding official looked to the definition of "involuntary separation" contained in Federal Personnel Manual (FPM) Supplement 831-1, Subch. S11-2a 2 for purposes Mrs. Yarbrough resigned because NSA would not extend her LWOP any further and she decided not to take either of the other two options then available to her: reporting for duty despite illness, or remaining off duty and risking being charged absent without leave.

of retirement eligibility under 5 U.S.C. Sec. 8336(d)(1), and determined that Mrs. Yarbrough was not separated for any of the reasons listed but rather:

As to the circumstances surrounding Mrs. Yarbrough's election of a lump-sum refund of her retirement contributions in 1970, the presiding official noted that she never filed a claim for a civil service annuity and found no evidence that Mrs. Yarbrough was incompetent when she filed for the refund.

The presiding official's initial decision became a final decision of the board on April 6, 1984 and appeal to this court followed. Petitioner argues before us that the board erred in defining "involuntary separation" and in applying the proper definition to the facts. Petitioner contends that the agency effected an involuntary separation by improperly conditioning its grant of Mrs. Yarbrough's third extension of LWOP and then by enforcing that condition. The government contends that this court lacks jurisdiction under Gilman v. OPM, 743 F.2d 881 (Fed.Cir.1984).

OPINION
Jurisdiction

The Supreme Court in Lindahl v. Office of Personnel Management, --- U.S. ----, 105 S.Ct. 1620, 84 L.Ed.2d 674 (1985), held that 28 U.S.C. Sec. 1295(a)(9) and 5 U.S.C. Sec. 7703(b)(1) provide exclusive jurisdiction in this court over appeals from certain MSPB retirement decisions. Id. at 1634-35. We draw from Lindahl that, excluding cases involving discrimination, our jurisdiction embraces appeals from MSPB decisions whose jurisdiction is founded upon 5 U.S.C. Sec. 8347(d). In the present case, the MSPB properly exercised jurisdiction pursuant to 5 U.S.C. Sec. 8347(d)(1). Accordingly, section 7703(b)(1) confers jurisdiction on this court to review the board decision.

Involuntary Separation

"Involuntary separation" under 5 U.S.C. Sec. 8336(d)(1), as administratively defined in subchapter S11-2a of FPM Supplement 831-1, is an issue which "depends upon all the facts in a particular case" and is governed by the true substance of the action rather than the methods followed or the terminology used.

Pursuant to our standard of review under 5 U.S.C. Sec. 7703(c), we hold that the board's finding of no involuntary separation is supported by substantial evidence and that the board committed no legal error.

The board properly looked to all the relevant facts of record in making its determination. The records documenting Mrs. Yarbrough's initial request for and grant of LWOP and the three further extensions of LWOP (covering 9 months) demonstrate a reasonable and even charitable approach by NSA in accommodating Mrs. Yarbrough. The third extension of LWOP was granted on the condition that Mrs. Yarbrough either return to work or resign at the end of that LWOP period (December 31, 1968) and avoid being absent without leave (AWOL). Mrs. Yarbrough's January 6, 1969 letter gives no indication that she did not mean to resign. The letter requests the director of NSA to accept her resignation and also requests information on her government insurance policy and health insurance. Nor is there anything in her conduct after January 6 suggesting...

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