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Yarbrough v. Office of Personnel Management

August 26, 1985


Appealed from: Merit Systems Protection Board

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.


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 every favorable ratings from her supervisors. In March 1968 her father died and so she went of 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 to NSA a letter of resignation, the body of which read:

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.

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 inebriacy. 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 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. § 8336(d)(1)*fn1 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. S111-2a*fn2 for purposes or retirement eligibility under 5 U.S.C. § 8336(d)(1), and determined that Mrs. Yarbrough was not separated for any of the reasons listed but rather:

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 ...

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