Cheryl Jean Metz v. Office of Personnel Management

N OTE : This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
CHERYL JEAN METZ,
Petitioner
v.
OFFICE OF PERSONNEL MANAGEMENT,
Respondent
______________________
2023-1873
______________________
Petition for review of the Merit Systems Protection
Board in No. DC-0831-22-0046-I-2.
______________________
Decided: March 12, 2025
______________________
STEPHEN B. PERSHING, Kalijarvi, Chuzi, Newman &
Fitch, PC, Washington, DC, argued for petitioner. Also
represented by GEORGE CHUZI.
KELLY GEDDES, Commercial Litigation Branch, Civil
Division, United States Department of Justice, Washing-
ton, DC, argued for respondent. Also represented by B RIAN
M. B OYNTON, TARA K. HOGAN, P ATRICIA M. MC CARTHY,
V IJAYA SURAMPUDI.
______________________
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METZ v. OPM 2
Before L OURIE , DYK, and P ROST, Circuit Judges.
Opinion for the court filed by Circuit Judge P ROST.
Opinion dissenting-in-part filed by Circuit Judge DYK.
P ROST, Circuit Judge.
Mrs. Cheryl Metz applied for survivor annuity benefits
after her husband’s death in 2006. The Office of Personnel
Management (“OPM”) denied her application. Mrs. Metz
appealed the denial of her application to the Merit Systems
Protection Board (“MSPB”). The MSPB administrative
judge (“AJ”) affirmed OPM’s denial of benefits, and that de-
cision became final on March 16, 2023. Metz v. OPM,
No. DC-0831-22-0046-I-2, 2023 WL 1949093 (M.S.P.B.
Feb. 9, 2023) (“Decision”), J.A. 1–34.1 Mrs. Metz appeals,
and we affirm.
Under the Civil Service Retirement Spouse Equity Act
of 1984, if a retired federal employee is survived by a widow
or widower, that spouse is, by default, entitled to receive
survivor annuity benefits. See 5 U.S.C. § 8341(b)(1). That
default entitlement, however, may be waived. For exam-
ple, the employee may elect to receive a higher annuity dur-
ing his or her lifetime in lieu of the survivor benefit for his
or her spouse but only if both parties “jointly waive the
spouse’s right to a survivor annuity in a written election
filed with [OPM] at the time that the employee . . . retires.”
5 U.S.C. § 8339(j)(1). This case involves such a waiver that
was notarized and submitted to OPM. Mrs. Metz argues,
however, that her signature on that waiver form was forged
or, alternatively, that she was mentally incompetent at the
time that she signed the waiver. The AJ found that
Mrs. Metz had not met her burden under either theory, and
1 Because the Westlaw version of the opinion is not
paginated, we have used the Joint Appendix pagination for
the citations to this Decision.
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METZ v. OPM 3
thus, the notarized waiver form was a proper basis to deny
Mrs. Metz survivor annuity benefits. We conclude that
substantial evidence supports the AJ’s findings under both
theories.
B ACKGROUND
I
Richard F. Metz and Mrs. Metz married in 1963.
Mr. Metz worked in federal civil service until April 30,
1988, when he retired. About a month before Mr. Metz’s
retirement, a letter, appearing to be sent by Mrs. Metz to
OPM’s retirement division, inquired about the possible loss
of medical insurance if Mr. Metz passed away. See Deci-
sion, at 16–17 (describing OPM Exhibit 1 as March 1988
letter). As relevant here, the letter states:
My husband is contemplating early retirement
from the Federal Government and will continue his
medical insurance as a retiree. He is however,
waiving my survivor benefits under his retirement
and opting for increased life insurance. My ques-
tion is, if my husband precedes me, we are advised
that I may be left without proper Medical insur-
ance and not able to carry his coverage foreword
since the survivor benefit option will be waived.
Id. at 17 (emphasis added) (quoting March 1988 letter).
The letter was written from Mrs. Metz’s perspective and
contained signatures bearing her name. See id. Shortly
thereafter, in April 1988, the form electing to waive survi-
vor annuity benefits was completed. See J.A. 269.
Mr. Metz then began receiving an annuity from the Civil
Service Retirement System (“CSRS”) that was not reduced
to account for a survivor annuity. In January 2006,
Mrs. Metz alleges that she discovered the March 1988 let-
ter and confronted her husband alleging it was forged.
In November 2006, Mr. Metz passed away while still
married to Mrs. Metz. In December 2006, Mrs. Metz
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METZ v. OPM 4
completed an application for survivor annuity benefits. Be-
tween 2006 and 2021, Mrs. Metz’s application remained
pending.2
In 2021, Mrs. Metz and her son Dennis Metz were
cleaning out files at home, when they found two documents
relevant here: the first, the April 1988 form waiving
Mrs. Metz’s survivor annuity benefits and the second, the
2006 application for benefits. In October 2021, Mrs. Metz
appealed to the MSPB, asserting that OPM had never pro-
cessed her 2006 application and that she was entitled to
the survivor annuity benefit. The MSPB AJ ordered OPM
to issue its decision on Mrs. Metz’s application, and after
some delay, OPM issued its final decision on June 23, 2022,
denying Mrs. Metz’s application. See Decision, at 3. Spe-
cifically, OPM based its denial, at least in part, on findings
from OPM’s Fraud Department, which stated:
When Richard Metz retired 04/30/1988 he com-
pleted the spousal consent to survivor benefits
which was notarized and signed properly. Cheryl
Metz signed the document in front of a Notary
electing no survivor benefits.
We matched her signature against documents from
her retirement case file, A13950250. The Fraud
Branch has reviewed the signatures and they are a
match. Cheryl Metz is not eligible for a survivor
annuity benefit as a spouse of Richard Metz.
Id. (quoting J.A. 48).
II
Mrs. Metz appealed the denial of benefits to the MSPB,
arguing that the signature on the waiver form was not hers
2 The government alleges that the 15-year delay was
the result of an inadvertent processing error. Appellee’s
Br. 3.
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METZ v. OPM 5
and instead was forged, and even if it was not forged, that
she did not have the mental capacity to sign a document at
that time. Mrs. Metz presented four witnesses in support
of her appeal: (1) Dennis Metz testified that Mr. Metz had
made previous attempts to forge his signature and that the
signature on the waiver form was not his mother’s.
(2) Ms. Eisenberg, a handwriting expert, opined that
Mrs. Metz “probably” did not write the signature in ques-
tion on the waiver form. J.A. 56. (3) Dr. Merikangas, an
expert in neurology and psychology, reviewed Mrs. Metz
medical records from the relevant period (the 1980s) and
concluded that “to a reasonable degree of certainty
Mrs. Metz was not competent to execute a contract in April
of 1988.” J.A. 218. And (4) Mrs. Metz herself testified to
the factual history of her appeal, including testimony that
she did not sign the waiver form, her medical condition in
the 1980s, and her relationship with Mr. Metz.
The AJ reviewed the expert reports and held a Zoom
hearing where the four witnesses presented their testi-
mony. With respect to Dennis Metz, the AJ found that he
had an “inherent bias” in the outcome of a favorable deter-
mination and that his testimony was only “loosely circum-
stantial to the material issues.” Decision, at 7. With
respect to Ms. Eisenberg, the AJ made the following credi-
bility determinations:
While Ms. Eisenberg has impressive credentials, I
did not find her to be an influential witness. For
an expert with her years of experience, I expected
her to be more knowledgeable of the material facts
to the appellant’s situation. I found Ms. Eisenberg
to be exceptionally bothered during OPM’s cross
examination and when I questioned her conclu-
sions, as was apparent through her body language,
voice tone, and looks of frustration. Additionally,
parts of Ms. Eisenberg’s testimony and opinions
ran directly counter to that of the appellant’s other
expert, Dr. Merikangas . . . . This meant I had to
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METZ v. OPM 6
discredit one expert to a degree to find the other
one credible or find both not persuasive. The evi-
dence led me to the latter.
Id. As to Dr. Merikangas, the AJ found that he was not
“well enough versed in all the important facts” and that his
testimony “contradicted Ms. Eisenberg’s opinion.” Id. at 8.
As to Mrs. Metz, the AJ noted that at times she “became
audibly and [visibly] frustrated and struck an aggressive
and dismissive tone.” Id. This, coupled with what the AJ
found to be a “suspicious . . . number of times the appellant
looked away from the camera/screen and seemingly focused
her attention on those in the room with her,” led the AJ to
conclude that her testimony “was not convincing enough to
meet her burden of proof.” Id. at 8–9. In the end, the AJ
concluded that Mrs. Metz had failed to prove by preponder-
ant evidence that her signature was forged or that she was
mentally incompetent at the time of signing.
III
Also relevant to this appeal is the AJ’s sanction against
Mrs. Metz.3 During the Zoom hearing, the AJ asked a clar-
ifying question about Mrs. Metz’s medical insurance. Be-
fore Mrs. Metz could answer, her attorney responded
instead. See J.A. 433–35. The AJ determined that the at-
torney’s response amounted to prejudicial attorney coach-
ing and “[drew] an inference adverse to [Mrs. Metz]
concerning her hearing testimony” regarding the exhibit
that she was then testifying about—the March 1988 letter.
See J.A. 467.
3 Sanctions were also issued against OPM during the
MSPB proceedings, which included an adverse inference on
multiple interrogatories and a prohibition on OPM intro-
ducing additional evidence for failure to follow MSPB reg-
ulations and the AJ’s orders. Decision, at 5.
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METZ v. OPM 7
The AJ’s initial decision became final on March 16,
2023. Mrs. Metz timely appealed. We have jurisdiction
under 28 U.S.C. § 1295(a)(9).
DISCUSSION
We must affirm the MSPB’s decision unless the
“agency action, findings, or conclusions [are] found to
be—(1) arbitrary, capricious, an abuse of discretion, or oth-
erwise 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). “Substantial evidence means such rele-
vant evidence as a reasonable mind might accept as ade-
quate to support a conclusion.” McIntosh v. Dep’t of Def.,
53 F.4th 630, 638 (Fed. Cir. 2022) (cleaned up). “The peti-
tioner bears the burden of establishing reversible error.”
Id. “[T]he Board’s credibility determinations are ‘virtually
unreviewable on appeal.’” Briley v. Nat’l Archives & Recs.
Admin., 236 F.3d 1373, 1377 (Fed. Cir. 2001) (quoting Rog-
ers v. Dep’t of Def. Dependents Sch., 814 F.2d 1549, 1554
(Fed. Cir. 1987)).
As briefly explained above, “[t]he Civil Service Retire-
ment Spouse Equity Act of 1984 was enacted to provide
spouses of retired CSRS employees with a default entitle-
ment to a survivor annuity,” Decision, at 9, “unless the
right to a survivor annuity was waived under . . . section
8339(j)(1),” 5 U.S.C. § 8341(b)(1). The employee and spouse
may “jointly waive the spouse’s right to a survivor annuity
in a written election filed with [OPM] at the time that the
employee . . . retires.” 5 U.S.C. § 8339(j)(1). The waiver
permits the employee to receive a higher annuity during
his or her lifetime in lieu of the survivor benefit for his or
her spouse. “Such written waiver is valid absent fraud, du-
ress, or mental incompetence . . . .” Braza v. OPM,
598 F.3d 1315, 1317 (Fed. Cir. 2010) (en banc).
It is undisputed here that a written waiver was signed,
notarized, and submitted to OPM, electing a higher
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METZ v. OPM 8
annuity during Mr. Metz’s life and waiving a survivor an-
nuity benefit for Mrs. Metz. It is also undisputed that
Mr. Metz received the higher annuity payments during his
lifetime. Rather, the dispute here is whether Mrs. Metz’s
signature on the waiver form was the result of fraud (e.g.,
forged) or mental incompetence as she alleges. Mrs. Metz
further argues that the AJ abused his discretion by draw-
ing an adverse inference with respect to the March 1988
letter. We address each argument in turn.
I
Mrs. Metz argues that Mr. Metz forged her signature
on the form waiving survivor annuity benefits. The AJ con-
cluded that Mrs. Metz had not met her burden to show by
a preponderance of the evidence that her signature was
forged. We conclude that the MSPB’s decision was sup-
ported by substantial evidence and thus affirm.
Mrs. Metz presented the following evidence in support
of the alleged forgery: (1) her testimony that she did not
sign the wavier form; (2) her testimony that she did not see
the waiver form until 2021; (3) her testimony that
Mr. Metz forged her signature on the March 1988 letter;
(4) Dennis Metz’s testimony that Mr. Metz had once tried
to forge his signature; (5) Dennis Metz’s testimony that
Mrs. Metz screamed when she found the waiver form and
told him that it was “not the first time” Mr. Metz had
forged her signature; (6) Ms. Eisenberg’s testimony that
Mrs. Metz “probably” did not sign the waiver; and
(7) Ms. Eisenberg’s testimony that a “common author” had
signed nine other documents with Mrs. Metz’s signature.
Appellant’s Br. 34. Mrs. Metz alleges there is no contradic-
tory evidence. That is not accurate.
First, and most notably, Mrs. Metz’s signature on the
waiver form was corroborated by a notary. The notarized
form contained a seal and signature from the State of Mar-
yland, and thus the AJ looked to the Maryland State Gov-
ernment Code § 18-209, which states that a notarized
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METZ v. OPM 9
signature is prima facie evidence that “the signature is
genuine.” See Decision, at 14–15. Indeed, Mrs. Metz
agrees that “the notarization of a signature creates a strong
but rebuttable presumption of validity.” Appellant’s Br. 33
(quoting Ford v. OPM, No. DC-0831-16-0647-I-1, 2022 WL
7019134, at *2 (M.S.P.B. Oct. 11, 2022)). The AJ found
that she had not overcome this presumption. Mrs. Metz
and her son Dennis Metz attempted to discredit the notary
Mr. Ridgell by alleging that they never met him and that
he was the owner of a bar that Mr. Metz frequented. But,
as the AJ found, whether Dennis Metz ever met Mr. Ridgell
and whether Mr. Ridgell owned a bar is irrelevant. This
merely left Mrs. Metz’s uncorroborated statement that she
never met Mr. Ridgell and Ms. Eisenberg’s testimony that
she places “no value” on notarizations. J.A. 362. But the
AJ found that “putting this typecasted view on all notariza-
tions [was] misguided.” Decision, at 15. Indeed, such a
view would fly in the face of the presumption that a nota-
rized signature is valid.
Second, the notarization was not the only evidence that
Mrs. Metz signed the waiver form. OPM’s Fraud Depart-
ment also “matched [Mrs. Metz’s] signature [on the waiver
form] against documents from her retirement case file,
A13950250. The Fraud Branch has reviewed the signa-
tures and they are a match.” Decision, at 3 (quoting
J.A. 48); see also id. at 13. Mrs. Metz provides no response
as to why the Fraud Branch’s conclusion is not credible.
Third, OPM presented contemporaneous evidence (the
March 1998 letter) that Mrs. Metz was aware that her hus-
band intended to waive the survivor benefits. See Decision,
at 16–17 (stating “My husband is . . . waiving my survivor
benefits under his retirement and opting for increased life
insurance.”). Mrs. Metz claims that this letter was also
forged by her husband. But, as the AJ found, Mrs. Metz
provided no reason or motive for why Mr. Metz would have
done so: “It would have made more sense for Mr. Metz to
send the [March 1988] letter under his name and
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METZ v. OPM 10
signature, as he was the primary holder of the insurance.”
Id. at 17. Indeed, the AJ found that Mrs. Metz’s and Den-
nis Metz’s testimony cut against the March 1998 letter as
a forgery because according to their claims, “Mr. Metz
made selfish unilateral decisions that benefited him and no
one else.” Id. at 18. The AJ did not find Mrs. Metz’s for-
gery allegations about this letter credible. Because such
credibility determinations are “virtually unreviewable,”
Briley, 236 F.3d at 1377, we decline to question the AJ’s
credibility conclusions here.
The notarized signature on the waiver form, the Fraud
Department’s assessment that the waiver form signature
matched Mrs. Metz’s signature, and the contemporaneous
March 1988 letter all support the AJ’s conclusion that
Mrs. Metz’s signature on the waiver form was not forged.
Thus, we disagree with Mrs. Metz’s proposition that “the
AJ substituted his feelings for evidence.” See Appellant’s
Br. 35–37.
Mrs. Metz appears to agree that the AJ based at least
part of his findings on credibility determinations but ar-
gues that we should “overturn a credibility finding if there
are ‘sufficiently sound’ reasons for doing so.” Appellant’s
Br. 36 (citing Haebe v. DOJ, 288 F.3d 1288, 1301 (Fed. Cir.
2002)). While the general rule is that credibility determi-
nations are “virtually unreviewable,” we may do so in cer-
tain circumstances such as when a credibility
determination is contrary to undisputed facts. See Pope v.
U.S. Postal Serv., 114 F.3d 1144, 1149 (Fed. Cir. 1997). But
the facts here are not undisputed—the factual dispute is
the heart of the matter before us. See Appellant’s Br. 40
(“[T]he question before the AJ was whether Cheryl’s signa-
ture on the waiver form was genuine or forged.”).
As to Mrs. Metz’s purported evidence, the AJ reviewed
Ms. Eisenberg’s testimony that she had a “strong opinion”
that Mrs. Metz “probably” did not sign the waiver form.
See Decision, at 10–12. As a preliminary point, the AJ was
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METZ v. OPM 11
faced with OPM’s Fraud Department’s conclusion that
Mrs. Metz’s signatures were a “match” and Ms. Eisen-
berg’s opinion that Mrs. Metz “probably” did not sign the
waiver. This evidence is obviously in conflict, and as we
have stated previously, “[i]f the evidence in record will sup-
port several reasonable but contradictory conclusions, we
will not find the Board’s decision unsupported by substan-
tial evidence simply because the Board chose one conclu-
sion over another plausible alternative.” In re Jolley,
308 F.3d 1317, 1320 (Fed. Cir. 2002).
Additionally, the AJ found that Ms. Eisenberg’s opin-
ion was “fundamentally flawed because she admittedly did
not have substantial background information concerning
[Mrs. Metz] that could have been critical in her examina-
tions and conclusions.” Decision, at 10–11. For example,
Ms. Eisenberg testified that she often considers the medi-
cal condition of the alleged signor when assessing forgeries
and that drug or alcohol use is “going to be a problem” in
assessing signatures. See J.A. 366. She also agreed that
someone’s signature could change if they were standing up
versus lying down. See J.A. 370–71. Yet, Ms. Eisenberg
was unaware that Mrs. Metz, Dennis Metz, and Dr. Meri-
kangas all testified that Mrs. Metz suffered from multiple
medical conditions in 1988, including a condition that left
her in a full body brace at one point such that she was bed-
ridden, and was on a variety of prescription medications.
In other words, Ms. Eisenberg had not considered how
Mrs. Metz’s physical condition and use of prescription
drugs (which apparently was so extensive that Mrs. Metz
relies on the use of these drugs to alternatively argue that
she was mentally incompetent to sign the waiver at the rel-
evant time) would affect her signature, despite admitting
such things could affect a person’s signature. The AJ thus
questioned the reliability of Ms. Eisenberg’s opinion based
on her lack of knowledge of pertinent substantive infor-
mation. Decision, at 12 (“A reliable handwriting analysis
cannot be done in a vacuum so to speak, without serious
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METZ v. OPM 12
consideration of these types of material facts and circum-
stances.”).
The AJ also found “[s]omewhat favorable evidence to
support [Mrs. Metz’s] forgery position was how she demon-
strated Mr. Metz as a serial forger.” Id. at 19 (describing
two incidents involving Mr. Metz’s possible forgery of Den-
nis Metz’s signature). But in the end the AJ found the ex-
amples too ambiguous, tangential, and unsupported by
physical evidence such that he afforded these examples
“little to no value.” Id. Given the lack of evidence and our
substantial evidence review, we agree that circumstantial
evidence that Mr. Metz may have forged Dennis Metz’s sig-
nature at some point in the past has little bearing on
whether the signature here was forged.
All that remains of Mrs. Metz’s purported evidence is
Mrs. Metz’s and Dennis Metz’s testimony that she did not
sign the waiver and did not see the waiver form until 2021.
But these statements stand in contrast to record evi-
dence—i.e., the notarized signature on the waiver form, the
Fraud Department’s assessment that the waiver form sig-
nature matched Mrs. Metz’s signature, and the contempo-
raneous March 1988 letter. Based on these facts, we
conclude that substantial evidence supports the AJ’s deci-
sion.
II
Separate from her fraud argument, Mrs. Metz also ar-
gues in the alternative that even if she did sign the waiver
form, she was mentally incompetent at the time and thus
the signature is not valid. Based upon underlying credibil-
ity determinations, which again are “virtually unreviewa-
ble,” Briley, 236 F.3d at 1377, and contradictory evidence
in the record, the AJ concluded that Mrs. Metz had not met
her burden to show that she was mentally incompetent to
sign the waiver form in April 1988. See Decision, at 9
(“Generally, an appellant bears the burden to prove by pre-
ponderant evidence entitlement to the retirement benefit
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METZ v. OPM 13
she seeks.” (citing Cheeseman v. OPM, 791 F.2d 138, 140–
41 (Fed. Cir. 1986))).
It is undisputed that in April 1988, when the waiver
form was signed, Mrs. Metz “suffered from a litany of med-
ical conditions,” including “debilitating back pain, recovery
from spinal surgery, and a seizure disorder.” Id. at 20–21.
It is also undisputed that she was prescribed a variety of
medications at the time, including Valium, Percocet, and
Demerol. See Appellant’s Br. 49; J.A. 218. “These medica-
tions often lead to side effects, such as sedation and grog-
giness.” Decision, at 21. What is disputed is whether these
medications led to Mrs. Metz’s mental incompetence to
sign the waiver form in April 1988. Mrs. Metz primarily
relied on Dr. Merikangas’s expert testimony, submitted in
a two-page report, concluding “that to a reasonable degree
of certainty Mrs. Metz was not competent to execute a con-
tract in April of 1988.” J.A. 218.
But the AJ found that Dr. Merikangas’s testimony was
problematic in a number of ways. First, while Dr. Meri-
kangas stated that “in general, people who are taking nar-
cotics for pain continue to take them,” he also stated that
patients “don’t always take all the medication prescribed.”
J.A. 390. And when asked if Dr. Merikangas was aware of
whether Mrs. Metz was taking her prescribed medication,
Dr. Merikangas responded, “I have no way of knowing that,
Your Honor.” J.A. 389. Second, Dr. Merikangas concluded
that Mrs. Metz should not enter into a contract specifically
during “her time under the influence of Valium.”
J.A. 403–04 (“Q. Okay. Now, when you testified that she
shouldn’t enter into a contract, are you just referring to her
time under the influence of Valium. Correct? A. Yes.”). But
while Dr. Merikangas repeatedly called Valium a “tran-
quilizer” that dulls the senses, e.g., J.A. 396, Dr. Merikan-
gas also admitted, and it is undisputed, that Mrs. Metz had
been taking Valium since she was 17 years old—i.e., for al-
most 30 years in 1988 when the waiver was signed. See
J.A. 218; see also J.A. 400–01. Dr. Merikangas testified
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METZ v. OPM 14
that a patient “does build up tolerance” to prolonged uses
of Valium that “could limit the side effects” of the drug.
J.A. 401–02. Third, the AJ found that there was no evi-
dence that Dr. Merikangas had spoken with Mrs. Metz to
discuss these material questions regarding whether she
took her medication as prescribed and what side effects she
actually experienced. Decision, at 21–22. Indeed,
Mrs. Metz’s own testimony only proffered that she was “in
rough shape” at the time—a vague testimony that the AJ
found “did not shed light on her specific mental capacity on
April 9, 1988.” Id. at 23; see also J.A. 415.
In addition to what the AJ characterized as Dr. Meri-
kangas “sparse and insufficient analysis,” Decision, at 21,
even more problematic was that other purported evidence
appeared to contradict Dr. Merikangas’s testimony that
Mrs. Metz could not enter into a contract at the relevant
time. This led the AJ to question the credibility of
Dr. Merikangas’s testimony. See id. at 7 (“[P]arts of
Ms. Eisenberg’s testimony and opinions ran directly coun-
ter to that of . . . Dr. Merikangas . . . . This meant I had to
discredit one expert to a degree to find the other one credi-
ble or find both not persuasive. The evidence led me to the
latter.”). For example, Dr. Merikangas testified that Va-
lium would have a similar effect as being intoxicated with
alcohol, J.A. 392, and Ms. Eisenberg testified that “drugs
or alcohol” would “be a problem” when assessing signa-
tures, J.A. 366. But Ms. Eisenberg testified that she
“didn’t see any evidence” of a medical condition or medica-
tion use in the signatures she analyzed. See J.A. 367; see
also J.A. 369 (“None of those features that are typically
found in an impaired person are evident in these ques-
tioned signatures.”). As another example, both Mrs. Metz
and Dr. Merikangas relied on a June 27, 1988, medical re-
port (written two and half months after the waiver docu-
ment was signed) as evidence of Mrs. Metz’s mental
capacity in April when she signed the document. But the
AJ found that nothing in this medical report actually
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METZ v. OPM 15
addressed Mrs. Metz’s mental capacity in April 1988. See
Decision, at 22–23; J.A. 251. Instead, the AJ found that
the report made “general statements about the medical
conditions that she was suffering since 1983.” Decision,
at 23. At best, the letter states that Mrs. Metz’s “pain is a
continual distraction and the pain medication dulls her
sensorium to the point she is unable to read a book or do
sedentary work.” J.A. 251. Indeed, that same report char-
acterized Mrs. Metz as “pleasant, positive in outlook, and
interested in leading a normal life” and her “primary symp-
tom has been pain: headache, nerve pain in shoulders and
arms, low back pain.” J.A. 251. As another example, the
AJ was bothered by the contradiction that Mrs. Metz sug-
gests that she was mentally competent at other points be-
tween 1987 and 1989, despite the fact that she was
prescribed the same medications during this period as she
was in 1988. See Decision, at 23; Appellant’s Br. 49
(“[B]eginning in 1987 [Mrs. Metz] was regularly prescribed
Valium, Roxicet/Percocet, and (beginning in November
1987) Demerol.”); J.A. 247 (March 1987 letter listing pain
medications as Demerol, Percocet, and Tylenol);
J.A. 264–66 (August/September 1988 letter listing medica-
tions as Armour Thyroid, Valium, Inderol, Naprosyn,
Macrodantin, Percocet, Demerol, and Phenergan). During
this time, and while on these medications, the AJ pointed
out (and Mrs. Metz does not dispute) that she had the men-
tal capacity to write a letter to the Social Security Admin-
istration in August 1988. See Decision, at 22. And even
Dr. Merikangas, when pressed, agreed that it was possible
that at times during this period that Mrs. Metz did have
the mental capacity to enter into a contract. See id.;
J.A. 398–99.
All of these “contradictions without adequate explana-
tions” led the AJ to find that “there were stretches of time
in 1988 when the appellant possessed the mental capacity
to bind herself to an agreement, making it even more nec-
essary for her to show specifically how she did not have
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METZ v. OPM 16
such capacity on April 9, 1988.” Decision, at 22. In other
words, the AJ found that Mrs. Metz was mentally compe-
tent during at least some points in 1988, even if she was
mentally incompetent during others. Given it was
Mrs. Metz’s burden to show by preponderant evidence that
she was mentally incompetent when she signed the waiver,
and the evidence showed that Mrs. Metz was at least some-
times mentally competent when prescribed Valium and the
various pain medications, the AJ concluded that Mrs. Metz
had not met her burden to show that she was mentally in-
competent on April 9, 1988. Based on our review of this
record, we conclude that the AJ’s findings were supported
by substantial evidence.
Our affirmance, however, should not be read to suggest
that every case involving questions of mental incompetence
requires an appellant to demonstrate mental incompetence
on a particular day and time. In general, such a showing
might be unnecessary and overly burdensome. This case,
however, presented the unique fact pattern that led to un-
favorable credibility determinations for most of
Mrs. Metz’s witnesses and included allegations riddled
with contradictions. Those issues lead us to affirm the AJ’s
determination that Mrs. Metz did not meet her burden to
show she was mentally incompetent when she signed the
document in April 1988.
III
Mrs. Metz’s final argument is that the AJ abused his
discretion by drawing an adverse inference against the
March 1988 letter. See Appellant’s Br. 55–57. We disa-
gree.
“If an abuse of discretion did occur with respect to the
discovery and evidentiary rulings, in order for petitioner to
prevail on these issues he must prove that the error caused
substantial harm or prejudice to his rights which could
have affected the outcome of the case.” Curtain v. OPM,
846 F.2d 1373, 1379 (Fed. Cir. 1988). Mrs. Metz has not
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METZ v. OPM 17
shown such harm or prejudice here. Rather, despite the
adverse inference, the AJ specifically stated that even if he
had not sanctioned Mrs. Metz, he “still would have found
based on the evidentiary record that she did not meet her
burden to prove entitlement to a CSRS survivor annuity.”
Decision, at 5 n.5. Moreover, we see nothing in the record
that suggests the AJ actually applied the adverse infer-
ence. In fact, he spent numerous pages in his decision an-
alyzing both the March 1988 letter and Mrs. Metz’s
arguments against that letter. See id. at 16–19. Thus, any
error here, to the extent one occurred, was harmless be-
cause it did not impact the AJ’s ultimate conclusion.
C ONCLUSION
We have considered Mrs. Metz’s remaining arguments
and find them unpersuasive. For the foregoing reasons, we
affirm.
AFFIRMED
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N OTE : This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
CHERYL JEAN METZ,
Petitioner
v.
OFFICE OF PERSONNEL MANAGEMENT,
Respondent
______________________
2023-1873
______________________
Petition for review of the Merit Systems Protection
MSPB in No. DC-0831-22-0046-I-2.
______________________
DYK, Circuit Judge, dissenting-in-part.
I join Part I and Part III of the Discussion section of the
majority opinion but respectfully dissent from Part II and
the result.
This case involves an application by the petitioner
Mrs. Cheryl Metz for a survivor annuity pursuant to 5
U.S.C. § 8341(b)(1). Mrs. Metz applied for the annuity af-
ter her husband’s death in 2006. The Office of Personnel
Management (“OPM”) apparently lost the application and
did not act on it for fifteen years. In 2021, Mrs. Metz ap-
pealed to the Merit Systems Protection Board (“MSPB”),
asserting that she was entitled to survivor annuity
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METZ v. OPM 2
benefits. The MSPB ordered OPM to issue its decision, and
OPM denied the application because in a document dated
April 9, 1988, Mrs. Metz waived her right to survivor an-
nuity benefits pursuant to 5 U.S.C. § 8432(b)(1).
Mrs. Metz appealed the denial of benefits to the MSPB,
arguing that she was incompetent at the time of signing.1
A waiver is not binding if the annuitant was not competent
when she signed the form. Braza v. Off. of Pers. Mgmt.,
598 F.3d 1315, 1319 (Fed. Cir. 2010) (en banc). In cases in-
volving an alleged waiver of survivor annuity benefits, the
claimant bears the burden of proving that there was no
waiver of the survivor annuity by a preponderance of evi-
dence. Cheeseman v. Off. of Pers. Mgmt., 791 F.2d 138,
140–41 (Fed. Cir. 1986); O’Neill v. Off. of Pers. Mgmt.,
76 F.3d 363, 365 (Fed. Cir. 1996). As the majority acknowl-
edges, see Majority Op. 13, there are few facts in dispute—
all parties agree that at the time Mrs. Metz signed the
waiver she was in debilitating back pain; that Mrs. Metz
was prescribed Valium, Percocet, and Demerol; and that
“the combination of these medications . . . would interfere
with her capacity to understand and to reason.” J.A. 389.2
However, the MSPB concluded that Mrs. Metz’s waiver
was valid, finding that the evidence that she was incompe-
tent on the day she signed the waiver was “too general” and
that Mrs. Metz and her medical expert Dr. Merikangas had
1 Mrs. Metz also argued that her husband had forged
her signature on the waiver. I agree with the majority’s
conclusion that the MSPB’s decision rejecting this argu-
ment is supported by substantial evidence.
2 Mrs. Metz had apparently been taking Valium for
quite some time, which could have led to her developing
tolerance for the drug. There is no suggestion in the record,
however, that the drug cocktail she was taking at the time
she signed the waiver did not have adverse effects.
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METZ v. OPM 3
failed to “prove[] she was mentally incompetent on April 9,
1988,” the date the waiver was signed. J.A. 23. The MSPB
based its conclusion on three specific findings. I think the
MSPB’s three findings are not supported by substantial ev-
idence.
I
First, the MSPB found that Mrs. Metz failed to demon-
strate that she took the medication on April 9, 1988 (the
date she signed the waiver), based on an exchange between
the MSPB and Dr. Merikangas:
Judge DiTomasso: Dr. Merikangas, are you aware
if Ms. Metz was actually taking any of this medica-
tion?
The Witness: I have no way of knowing that, Your
Honor.
J.A. 389.
It seems self-evident that a medical witness who was
not treating Mrs. Metz thirty years ago cannot provide di-
rect evidence that she was taking medication on a specific
April day in 1988. Mrs. Metz’s prescription records showed
consistent refills of Valium and Percocet on a near-monthly
basis for more than two years before she signed the waiver.
See J.A. 229–39. Dr. Merikangas testified without contra-
diction that, although patients “don’t always take all the
medication[s] prescribed,” “the doctor prescribing this be-
lieved that she was taking her medication. And, in general,
people who are taking narcotics for pain continue to take
them.” J.A. 390. This is uncontradicted circumstantial ev-
idence that Mrs. Metz was likely taking the prescribed
medications.
The MSPB totally disregarded Mrs. Metz’s own testi-
mony that she was regularly taking the prescribed medica-
tion in April 1988. Mrs. Metz answered in the affirmative
when asked “were you taking the medications
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METZ v. OPM 4
Dr. Merikangas discussed in April 1988?” and testified that
the impact of taking the combination of Valium, Percocet,
and Demerol was that she “d[idn’t] remember much in
those days other than being in [her] room, with the blinds
and everything closed.” J.A. 418–19. She further testified
that she “was in a full body brace,” such that the “only place
[she] could go was maybe on the couch . . . for a very short
period, five to ten minutes.” J.A. 419.
There was no evidence in the record at all to find that
Mrs. Metz did not take her prescribed medications on
April 9, 1988. The undisputed record taken as a whole con-
firms that it is virtually certain that Mrs. Metz was heavily
medicated at the time that she signed the waiver.
II
Second, the MSPB found that even if Mrs. Metz did
take the medication on April 9, 1988, her supposed lucidity
at other times that year showed that she was not neces-
sarily medically incompetent on the date in question. The
MSPB gave great weight to the fact that Mrs. Metz signed
a letter related to her physical limitations that was dated
August 4, 1998, to a Social Security Administration Ad-
ministrative Law Judge presiding over Mrs. Metz’s disabil-
ity appeal. The fact that she signed the August 1998 letter
does not compel the finding that she composed it, and the
MSPB made no factual finding to that effect here. There
was also in the record a letter from a physician treating
Mrs. Metz dated June 27, 1988, which specifically stated
that the combination of Mrs. Metz’s debilitating pain and
medication regimen “dull[ed] her sensorium to the point
she was unable to even read a book.” J.A. 387. The MSPB
dismissed this, too, solely on the ground that the letter was
dated two months after she signed the waiver.
The MSPB also found that some of Mrs. Metz’s testi-
mony contradicted her claim that she was incompetent
since she testified in detail and with clarity concerning
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METZ v. OPM 5
things that occurred at various times in the 1980s. The
MSPB did not cite to any portion of Mrs. Metz’s testimony
for this proposition, and proof of incompetence to sign a
waiver does not require a showing that she had no recollec-
tion of the past.
III
Third, the MSPB improperly relied on supposed incon-
sistencies in the testimony of handwriting expert Ms. Ei-
senberg and Dr. Merikangas, concluding that “the
competing nature of [Mrs. Metz’s] two expert witnesses’
testimony and opinions is even more of a reason . . . to not
value much of either.” J.A. 25. The MSPB used the testi-
mony of Ms. Eisenberg—an individual with no medical
training who was called to testify solely as to handwriting
analysis—as reason to discredit Dr. Merikangas’s medical
opinion. The MSPB found that Dr. Merikangas’s opinion
that Mrs. Metz was medically incompetent was contra-
dicted by Ms. Eisenberg’s testimony “that her review of
[Mrs. Metz’s] known signatures from 1986 and beyond did
not indicate that they were from an ‘infirmed’ person” and
that “there was no evidence from [her] known signatures of
a medical condition or impairment.” J.A. 25.
The fact that Ms. Eisenberg was not able to determine
whether Mrs. Metz was medically incapacitated based on
Mrs. Metz’s handwriting hardly shows that she was medi-
cally competent. Ms. Eisenberg was simply not qualified
to give an expert opinion on this issue. The MSPB improp-
erly discounted Dr. Merikangas’s medical testimony.
* * *
In light of the MSPB’s errors, I would vacate and re-
mand. I thus respectfully dissent-in-part as to the majority
opinion concerning medical incompetence.
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