NOTE: Pursuant to Fed. Cir. R. 47.6, this disposition is not citable as precedent. It is a public record. 

## United States Court of Appeals for the Federal Circuit

05-3244 HARRY R. WATKINS, JR., Petitioner,

v. OFFICE OF PERSONNEL MANAGEMENT, Respondent.

________________________ DECIDED: November 10, 2005

________________________ Before SCHALL, GAJARSA, and PROST, Circuit Judges

. PER CURIAM. DECISION Harry R. Watkins, Jr. (“Watkins”) appeals from the final judgm ent of the Merit Systems Protection Board (“Board”) affirmi ng the final decision of the Office of Personnel Management (“OPM”). Watkins v. Office of Pers. Mgmt. , No. CH-0841-04- 0070-I-1 (M.S.P.B. May 3, 2005) (“ Final Order ”). We affirm

. I From September 4, 1973 thr ough November 10, 1973, Wa tkins was employed in a temporary federal pos ition in which no retirement deductions were withheld from hispay. Watkins was also intermittently em ployed under the Civil Service Retirement System (“CSRS”) from November 14, 1969 to August 7, 1981. While he was so employed, the government withheld his retirement contributions. Watkins received a refund of his CSRS retirement contribut ions when he left federal service. On January 25, 1984, Watkins was employ ed in a federal career appointment and became automatically subj ect to the Federal Employ ees Retirement System (“FERS”) on January 1, 1987. On August 17, 1990, Watkins received a FERS disability retirement and separated from federal servic e. OPM is the agency responsible for the administration of all claims, dire ctly or indirectly related, “for basic benefits arising under FERS . . . .” 5 U.S.C. § 841.105 (2005). For reasons that do not appear in the record, in 1992, OPM questioned Watkins’s mental competence and request ed that he submit evidenc e to prove that he was competent to manage his FERS annuity payment s. After reviewing evidence submitted by Watkins, OPM informed him that there was no basis to fi nd that he was incapable of handling his financial affairs. OPM notified Watkins, by letter dated January 26, 1993, that he could deposit $550.00 to cover and receive credit for his pr ior federal employment between November 14, 1969 and August 7, 1981, including the CSRS retirement contributions he previously received. The credit would in crease the amount of Watkins’s basic FERS annuity. The letter informed Watkins that the deposit must be made within 30 days of his first regular annuity payment. Watkins failed to deposit the money. The first regular annuity payment sent to Watkins was dated March 1, 1993.

05-3244 2Approximately 10 years later, Watkin s contacted OPM to request another opportunity to deposit the $550.00. He clai med that mental in competence prevented him from appreciating the im portance of the deposit when OPM notified him of the opportunity. On September 11, 2002, in an initial decision, OPM denied Watkins’s request to make the untimely deposit. Watkin s requested reconsiderat ion of the initial decision. On October 14, 2003, OPM affirmed in a final decision. Watkins appealed OPM’s decision to the Merit Systems Protection Board (“Board”). On December 10, 2003, a Boar d administrative judge (“AJ”) affirmed OPM’s final decision because Watkins did not prove t hat he was mentally incompetent when he received OPM’s letter in 1993. The AJ also determined that ment al incompetence was not a basis to waive a regulat ory deadline. Watkins petitioned for review of the AJ’s initial decision. On May 3, 2003, the Board issued a final order affi rming the AJ’s initial decision. Watkins timely appealed to this court. We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(9) (2000).
II This court must affirm the decision of the Board unless the decision was: “(1) arbitrary, capricious, an abuse of discr etion, or otherwise not in accordance with law; (2) obtained without proc edures required by law, ru le, or regulation having been followed; or (3) unsupported by substantia l evidence.” 5 U.S.C. § 7703(c) (2000); see McLaughlin v. Office of Pers. Mgmt. , 353 F.3d 1363, 1366 (Fed. Cir. 2005).

05-3244 3III Watkins argues that the Board erred in affirming OPM’s decision to deny him the opportunity to increase his FERS annuity. Spec ifically, Watkins cont ends that the Board applied the wrong law and incorrectly found that he did not prove his mental incompetence when he received OPM’s letter in 1993. The pertinent regulation, 5 C.F.R. § 842.305(a), states in part: An employee . . . subject to FERS and a former employee . . . who is entitled to an annuity may make a deposit for civilian service . . . . A deposit for civilian service cannot be m ade later than 30 days after the first regular monthly payment . . . . 5 C.F.R. § 842.305(a). Watkins seeks to depos it $550.00 in order to increase his basic annuity payment. Pursuant to section 842. 305(a), Watkins could have deposited the money within 30 days of March 1, 1993, the dat e of the first regular monthly payment. See 5 C.F.R. § 842.305(a). The Board has held that ther e are only three reasons fo r waiving a statutory or regulatory deadline. See, e.g., Zimmerman v. Office of Pers. Mgmt. , 80 M.S.P.R. 512, 515 (1999). Such a deadline may be waived w here: (1) the statute or regulation specifies the circumstances to waiv e the deadline; (2) the agency has engaged in affirmative misconduct; or (3) the agency failed to provide notice of election rights and filing deadlines as required by the statute or regulation. Id . Watkins seeks another opportunity to deposit the money in order to increase the amount of his basic annuity payments. He claims that he was mentally incompetent at the time he received OPM’s letter, by letter dated January 26, 1993. He alleges that his mental incompetence prevented him from understandi ng the importance of the letter and the deposit. Essentially, Watkins seeks a waiver of the regulatory deadline.

05-3244 4Evaluating the three waiver factors as applied to Watkins’s circumstances, we find that section 842.305 does not specify circumstances under which the deadline to deposit money for civilian service can be waived. See 5 C.F.R. § 842.305. Accordingly, mental incompetence is not a basis to waiv e the deadline pursuant to section 842.305. Furthermore, Watkins does not allege any affirmative misc onduct by OPM and OPM properly notified Watkins of the 30-day requirement to depos it the money. Therefore, we agree with the Board that there is no basis to waiv e the regulatory deadline. Consequently, we need not and do not reach the issue of whether Watkins was mentally incompetent when he received OP M’s notice to deposit money in 1993. IV The Board properly applied 5 C.F.R. § 842.305 in dismissing Watkins’s application as untimely. Furthermore, t he Board properly dete rmined that mental incompetence was not a basis to waive the deadline under 5 C.F.R. § 842.305. Because we agree with the Board that Watk ins failed to prove a basis to waive the 30-day regulatory deadline, we a ffirm the decision of the Board.

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