N OTE : This disposition is nonprecedential.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

______________________

G EORGE D. P REWITT
, J R
., of Greenville, Mississippi,

pro se

.

J OSHUA E. K URLAND

, Trial Attorney, Commercial Lit igation Branch, Civil Division, United States Department of Justice, of Washington, DC, for respondent. With him
on the brief were S TUART F. D ELERY
, Principal Deputy Assistant Attorney General, J EANNE E. D AVIDSON

, Director, and S TEVEN J. G ILLINGHAM

, Assistant Director.GEORGE PREWITT

, JR

. v. OPM 2

______________________

Before R ADER

, Chief Judge, L OURIE and W ALLACH

, Circuit Judges.

P ER C URIAM

. 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

.
B ACKGROUND
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 reques ted 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 reque sted a lump

- sum refund of his second period of CSRS contributions , which
he received o n June 7, 1993. Since his second resignation,
Prewitt has neither been reemployed by USPS nor e mployed in any other Federal position that qualifies for
contributions to the CSRS.

On March 12, 2012, Prewitt applied for a deferred r etirement annuity. OPM denied his request, noting that he was not eligible to receive an annuity because he had collected the entirety of his retirement contribution s in lump

- sum refunds. Pre witt 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 Admini s-GEORGE PREWITT

, JR

. v. OPM 3

trative Judge (“AJ”) affirmed OPM’s denial, holding that
because Prewitt had withdrawn the entirety of his r etirement contributions and was not a Federal employee when he applied for a deferred annuity, he was not ot herwise eligible for one. Id. at 4. Be cause Prewitt did not seek review by the full Board, t he 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).

D ISCUSSION

The scope of our review in an appeal from a Board d ecision is limited. We can only set aside the Board’s dec ision 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 appl icants 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 gover nment also responds that Parker I and Parker II are ina pposite.GEORGE PREWITT

, JR

. v. OPM 4

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 re ceive 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 se rvice 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 pay ment with
interest under 5. U.S.C. § 8334(d) (1)

. S ee also Carreon v. Office of Pers. Mgmt. , 321 F.3d 1128, 1130

– 31 (Fed. Cir. 2003)

. Those former employees who choose not to red eposit their payments

, but are otherwise entitled to an annuity

, may take a reduced p ayment. 5 U.S.C. § 8334(d)(2). Thus, under § 8334(d)(2), to have a reduced

pay ment, 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 su bject to the civil service retirement law; or

(2) A former employee (whose annuity has not
be en finally adjudicated) who retains ci v il service retirement annuity rights based on a separation from a position in which retir e ment deductions were properly withheld and remain (or have been redeposited in whole or in part) in the Civil Se rvice Retiremen t and Disability Fund.

Id. (emphasis added). Prewitt was not an employee at the time he applied for benefits. Prewitt was also not aGEORGE PREWITT

, JR

. v. OPM 5

former employee who “retain[ed] civil service retirement annuity rights” whose “deductions were properly withheld
and re main” because Prewitt received lump

- sum pa yments of his entire CSRS retirement contributions, voi ding 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 unde r 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 dete rmined that Parker could be considered reemployed, despite having withdrawn his deductions in a lump

- sum payment, b ecause 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 ultimat ely determined that the settlement service did not qualify as a reemployment for purposes of 5 U.S.C. § 8334(d).
Par ker 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 aft er his s econd 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 foreg oing reasons, the decision of the Board is

AFFIRMED

.
C O STS

No costs.