NOTE: This disposition is nonprecedential.

United States Court of Appeals 

for the Federal Circuit ______________________ 

DESIREE M. BROWN,

Petitioner

v.

OFFICE OF PERSONNEL MANAGEMENT,

Respondent

______________________ 

2015-3008

______________________ 

Petition for review of the Merit Systems Protection 

Board in No. SF-0843-14-0470-I-1.

______________________ 

Decided: April 9, 2015

______________________ 

DESIREE M. BROWN, Sacramento, CA, pro se. 

ERIN MURDOCK-PARK, Commercial Litigation Branch, 

Civil Division, United States Department of Justice, 

Washington, DC, for respondent. Also represented by 

JOYCE R. BRANDA, ROBERT E. KIRSCHMAN, JR., PATRICIA M.

MCCARTHY. 

______________________ 
2 BROWN v. OPM

Before PROST, Chief Judge, LOURIE, Circuit Judge, 

and GILSTRAP, District Judge.*

PER CURIAM. 

Desiree M. Brown (“Brown”) appeals from the decision 

of the Merit Systems Protection Board (the “Board”) 

affirming the Office of Personnel Management (“OPM”)’s 

denial of her application for a retirement annuity. See

Brown v. Office of Pers. Mgmt., No. SF-0843-14-0470-I-1 

(M.S.P.B. Aug. 4, 2014) (“Decision”). Because the Board 

did not err in affirming OPM’s action, we affirm. 

BACKGROUND

Brown worked for multiple federal agencies at various

times from 1982 to 2010. Id. at 2. Following her various

resignations, terminations, or removals, Brown requested 

and received refunds of her retirement deductions. Id. at 

2–4. After her latest removal in 2010, she requested a 

refund for the most recent employment period. Once she

received the refunded deductions, she filed an application 

for immediate retirement, which included an annuity

election, under the Federal Employees’ Retirement System (“FERS”). Id. at 4.

In 2011, OPM sent a letter to Brown stating that she

was not eligible for a retirement annuity under FERS and 

that she had withdrawn all of her deductions from the

fund. Id.; Resp’t’s App. 120. She requested reconsideration of her application, but due to various delays, OPM 

did not issue a reconsideration decision until 2014. See

Decision at 4; Resp’t’s App. 116–119. The reconsideration 

decision, affirming the original denial, described Brown’s

various periods of employment and the corresponding 

* Honorable Rodney Gilstrap, District Judge, United States District Court for the Eastern District of Texas, 

sitting by designation.

 
BROWN v. OPM 3

refunds requested and received, and stated that Brown 

was not eligible to receive a retirement annuity because 

she received a refund of all of her contributions. Resp’t’s 

App. 116–119. Brown appealed from OPM’s reconsideration decision to the Board. 

A telephonic hearing was held by the Administrative 

Judge (“AJ”), but OPM did not participate. Decision at 4. 

After the hearing, Brown filed supplemental documents

concerning an allegedly erroneous refund, and OPM did 

not respond. Id. at 5.

The AJ then issued an initial decision affirming

OPM’s action. The AJ found that Brown had applied for 

and received refunds of the retirement deductions which 

had accumulated during her various periods of employment. Because Brown had withdrawn all of her contributions to the system, the AJ determined that she was not 

eligible for a retirement annuity. As a result, the AJ 

concluded that OPM did not err in denying Brown’s 

application for an immediate retirement annuity. Id. at 6.

The AJ rejected Brown’s claim of entitlement to an 

annuity based on her employing agencies’ contributions to 

the retirement system, citing a precedential Board opinion that had considered the same argument and denied 

that appellant’s claim. Id. at 7. The AJ further found 

that Brown was ineligible to redeposit the withdrawn 

contributions to be allowed credit for her previous service.

The AJ also considered Brown’s argument that OPM 

had erroneously issued a certain refund to her and that 

the agency’s error should not preclude her from receiving 

a deferred annuity. However, the AJ examined the full 

record and found no error in the issuance of the refund. 

Id. at 8–10. The AJ further evaluated the alleged procedural errors made by OPM in processing her application 

and reconsideration. Despite the “extended delays” and 

“confusion” in the processing of the reconsideration request, the AJ found no error in OPM’s original decision to 
4 BROWN v. OPM

deny Brown’s application, and thus those issues did not 

constitute harmful error justifying reversal of OPM’s 

action. Id. at 10–11. Concluding that Brown was not 

entitled to an annuity under any retirement system for 

federal employees, the AJ also rejected the argument that 

the application was incorrectly processed under FERS. 

Id. at 11 & n.4. The AJ therefore affirmed OPM’s reconsideration decision.

Brown did not file a petition for review by the full 

Board, and the AJ’s decision thus became the final decision of the Board. Brown timely appealed from the 

Board’s decision to this court. We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(9).

DISCUSSION

We must affirm the decision of the Board unless we 

find it to be “(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). The petitioner bears the 

burden of proving entitlement to benefits. Cheeseman v.

Office of Pers. Mgmt., 791 F.2d 138, 141 (Fed. Cir. 1986).

Brown argues that while the AJ noted that Brown’s 

retirement record contained incomplete and inaccurate 

information, the AJ erroneously allowed it to remain part 

of the case file and relied upon it in rendering the decision. She also asserts that the AJ erred by not sanctioning the government under 5 C.F.R. § 1201.43. In 

particular, Brown alleges that OPM failed to defend the 

appeal, failed to timely process her retirement and request for reconsideration applications, and refused to 

apply a permanent actuarial reduction. She contends 

that these constituted harmful procedural errors that

justify reversal of the Board’s decision. 
BROWN v. OPM 5

The government responds that the AJ did not improperly rely on the incomplete record document, but rather

evaluated the conflict between that individual record and 

the Board’s official records and found that the individual 

record was deficient. The government also argues that 

the imposition of sanctions is discretionary, and Brown 

presented no evidence of sanctionable conduct. The 

government contends that OPM sufficiently defended the 

appeal because all of the requested documents were filed 

with its prehearing submission, OPM was not required or 

ordered to attend the hearing, and OPM was not instructed to respond to the posthearing submission. Moreover, 

the government argues, Brown has not shown that the 

failure to remedy the alleged procedural errors constituted harmful error.

We agree with the government that the Board did not 

err in affirming OPM’s denial of Brown’s application for 

retirement. The AJ relied on the official Board records to 

render the initial decision, not on an individual record 

that the AJ determined to be incomplete or inaccurate. 

Decision at 8–10. The official records support the AJ’s 

findings that Brown properly received her refunds and 

therefore had withdrawn all of her contributions to the

retirement system. 

We also agree with the government that the Board did 

not err in not sanctioning OPM. Although Brown asserts 

that OPM failed to defend the appeal, there is no evidence

that OPM refused to submit required filings or even 

disregarded orders from the Board. We find that the 

Board was acting fully within its discretion in not imposing sanctions. 

We furthermore do not find harmful error in the other 

procedural issues. The Board addressed the procedural 

errors as alleged and found no basis to determine that the 

delays or confusion in processing her application caused 

Brown harm, and found that she would not have obtained 
6 BROWN v. OPM

a different result even absent these errors. Decision at 11

& n.4. Although there may have been a number of procedural missteps by OPM, Brown has not proven that the 

Board’s decision would have been different. We therefore 

find no error in the Board’s affirmance of OPM’s denial of 

her retirement annuity.

CONCLUSION

We have considered Brown’s remaining arguments 

and find them unpersuasive. We conclude that the 

Board’s decision was not arbitrary or capricious, was not 

contrary to law, and was supported by substantial evidence. Accordingly, the decision of the Board is affirmed.

AFFIRMED

COSTS

No costs.