Prewitt v. Office of Personnel Management , 523 F. App'x 724 ( 2013 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
GEORGE D. PREWITT, JR.,
Petitioner,
v.
OFFICE OF PERSONNEL MANAGEMENT,
Respondent.
______________________
2013-3025
______________________
Petition for Review of the Merit Systems Protection
Board in No. AT0831120444-I-1.
______________________
Decided: April 3, 2013
______________________
GEORGE D. PREWITT, JR., of Greenville, Mississippi,
pro se.
JOSHUA E. KURLAND, 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, Principal Deputy
Assistant Attorney General, JEANNE E. DAVIDSON, Direc-
tor, and STEVEN J. GILLINGHAM, Assistant Director.
2 GEORGE PREWITT, JR. v. OPM
______________________
Before RADER, Chief Judge, LOURIE and WALLACH, Circuit
Judges.
PER CURIAM.
George Prewitt, Jr. (“Prewitt”) appeals from the final
decision of the Merit Systems Protection Board (“Board”)
affirming the Office of Personnel Management’s (“OPM”)
denial of his request for a deferred retirement. Prewitt v.
Office of Pers. Mgmt., No. AT-0831-12-0444-1-1 (M.S.P.B.
July 27, 2012) (“Board Decision”). Because the Board’s
decision was in accordance with the law, we affirm.
BACKGROUND
Prewitt was an employee of the United States Postal
Service (“USPS”) and first resigned from Federal service
on September 14, 1970. Upon his retirement, he request-
ed a lump-sum refund of his contributions to the Civil
Service Retirement System (“CSRS”), which he received
on November 26, 1970. Prewitt was subsequently rehired
by USPS, later resigning on November 26, 1990. Upon
that second resignation, he again requested a lump-sum
refund of his second period of CSRS contributions, which
he received on June 7, 1993. Since his second resignation,
Prewitt has neither been reemployed by USPS nor em-
ployed in any other Federal position that qualifies for
contributions to the CSRS.
On March 12, 2012, Prewitt applied for a deferred re-
tirement annuity. OPM denied his request, noting that
he was not eligible to receive an annuity because he had
collected the entirety of his retirement contributions in
lump-sum refunds. Prewitt requested reconsideration of
this decision, and OPM maintained its original denial.
Prewitt appealed to the Board arguing that he should
have qualified for a deferred retirement annuity under 5
U.S.C. § 8334(d)(2). Board Decision at 3. The Adminis-
GEORGE PREWITT, JR. v. OPM 3
trative Judge (“AJ”) affirmed OPM’s denial, holding that
because Prewitt had withdrawn the entirety of his re-
tirement contributions and was not a Federal employee
when he applied for a deferred annuity, he was not oth-
erwise eligible for one. Id. at 4. Because Prewitt did not
seek review by the full Board, the AJ’s decision became
the final decision of the Board on August 31, 2012. Id. at
5.
Prewitt 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 burden of proof to demonstrate entitlement to
retirement benefits rests on the petitioner. Cheeseman v.
Office of Pers. Mgmt., 791 F.2d 138, 141 (Fed. Cir. 1986).
Prewitt argues that the Board erred by denying him a
retirement annuity under 5 U.S.C. § 8334(d)(2). Prewitt
also argues that the Board erred because previous appli-
cants have received deferred annuities despite not being
employed at the time of their application. Pet’r’s Br. 1
(citing Parker v. Office of Pers. Mgmt. (Parker I), 90
M.S.P.R. 480 (2002) and Parker v. Office of Pers. Mgmt.
(Parker II), 93 M.S.P.R. 529 (2003)). The government
responds that Prewitt does not qualify for a reduced
annuity under 5 U.S.C. § 8334(d)(2) because he had
received lump-sum payments of his retirement deductions
for both of his USPS terms of employment. The govern-
ment also responds that Parker I and Parker II are inap-
posite.
4 GEORGE PREWITT, JR. v. OPM
We agree with the government. Prewitt was not an
employee at the time of his request for a deferred annuity
and was not eligible for a reduced retirement annuity.
Federal employees may elect to receive a lump-sum
refund of their previously paid retirement deductions
under 5 U.S.C. § 8342. Upon receipt of that payment, the
employee “voids all annuity rights . . . based on the ser-
vice on which the lump-sum credit is based, until the
employee . . . is reemployed in the service.” 5 U.S.C.
§ 8342(a). The loss of annuity rights may be cured by an
employee’s redeposit of the lump-sum payment with
interest under 5. U.S.C. § 8334(d)(1). See also Carreon v.
Office of Pers. Mgmt., 321 F.3d 1128, 1130–31 (Fed. Cir.
2003). Those former employees who choose not to rede-
posit their payments, but are otherwise entitled to an
annuity, may take a reduced payment. 5 U.S.C.
§ 8334(d)(2). Thus, under § 8334(d)(2), to have a reduced
payment, Prewitt must be a former employee with re-
maining deposits.
Prewitt does not qualify for the § 8334(d)(2) exception
because he is not an employee with remaining deposits.
OPM’s regulations interpreting § 8334(d) state that “[a]
person may make a deposit or redeposit under [Section
8334] if he or she is an ‘employee.’” 5 C.F.R. § 831.112(a).
That regulation defines “employee” as:
(1) A person currently employed in a position sub-
ject to the civil service retirement law; or
(2) A former employee (whose annuity has not
been finally adjudicated) who retains civil service
retirement annuity rights based on a separation
from a position in which retirement deductions
were properly withheld and remain (or have been
redeposited in whole or in part) in the Civil Ser-
vice Retirement and Disability Fund.
Id. (emphasis added). Prewitt was not an employee at
the time he applied for benefits. Prewitt was also not a
GEORGE PREWITT, JR. v. OPM 5
former employee who “retain[ed] civil service retirement
annuity rights” whose “deductions were properly withheld
and remain” because Prewitt received lump-sum pay-
ments of his entire CSRS retirement contributions, void-
ing his annuity rights, and he had not redeposited those
previous lump-sum payments with interest. 5 C.F.R.
§ 831.112(a)(2). Prewitt thus does not fall under the
definition of “employee”; he had no retirement deductions
remaining and was therefore not entitled to a reduced
annuity under 5 U.S.C. § 8334(d)(2).
Further, the Board’s decisions in Parker I and Parker
II are inapposite. In Parker I, the Board determined that
Parker could be considered reemployed, despite having
withdrawn his deductions in a lump-sum payment, be-
cause of a brief period of reemployment pursuant to a
settlement agreement. Parker I, 90 M.S.P.R. at 489.
However, in Parker II, OPM challenged the validity of
Parker’s reemployment solely based on the settlement
agreement. The Board reopened the appeal and ultimate-
ly determined that the settlement service did not qualify
as a reemployment for purposes of 5 U.S.C. § 8334(d).
Parker II, 93 M.S.P.R. at 542. The Parker cases thus
relate to different factual scenarios and are not applicable
here. Even under the rule of Parker I, Prewitt would not
be entitled to the 5 U.S.C. § 8334(d)(2) exception because
he was never reemployed after his second retirement from
USPS. Finally, we are not bound by Board decisions.
We have considered Prewitt’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.