NOTE: This disposition is nonprecedential.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 Litigation 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, Director, 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 requested 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 employed in any other Federal position that qualifies for 

contributions to the CSRS. 

On March 12, 2012, Prewitt applied for a deferred retirement 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 retirement contributions and was not a Federal employee 

when he applied for a deferred annuity, he was not otherwise 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 decision is limited. We can only set aside the Board’s decision 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 applicants 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 government also responds that Parker I and Parker II are inapposite. 
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 service 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 redeposit 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 remaining 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 subject 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 Service 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 payments of his entire CSRS retirement contributions, voiding 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, because 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 ultimately 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 foregoing reasons, the decision of the Board is 

AFFIRMED. 

COSTS

No costs.