                       NOTE: This disposition is nonprecedential.

  United States Court of Appeals for the Federal Circuit

                                      2008-3324

                                 REGINALD MARTIN,

                                                           Petitioner,

                                           v.

                      OFFICE OF PERSONNEL MANAGEMENT,

                                                           Respondent.


      Reginald Martin, of Washington, DC, pro se.

       Scott A. MacGriff, Trial Attorney, Commercial Litigation Branch, Civil Division,
United States Department of Justice, of Washington, DC, for respondent. With him on the
brief were Gregory G. Katsas, Assistant Attorney General, Jeanne E. Davidson, Director,
and Deborah A. Bynum, Assistant Director. Of counsel was Paul N. St. Hillaire, Office of
Personnel Management, of Washington, DC.

Appealed from: Merit Systems Protection Board
                      NOTE: This disposition is nonprecedential.

 United States Court of Appeals for the Federal Circuit
                                       2008-3324

                                  REGINALD MARTIN,

                                                   Petitioner,

                                            v.

                      OFFICE OF PERSONNEL MANAGEMENT,

                                                   Respondent.


Petition for review of the Merit Systems Protection Board in DC0831080363-I-1.

                           __________________________

                           DECIDED: December 8, 2008
                           __________________________


Before RADER, BRYSON, and PROST, Circuit Judges.

PER CURIAM.

      Mr. Martin appeals the July 30, 2008 final decision of the Merit Systems

Protection Board (“MSPB”) denying his request for a retirement annuity. Because Mr.

Martin gave up his right to retirement benefits when he requested and received a refund

of his retirement deductions in 1997, we affirm.

                                   I. BACKGROUND

      Mr. Martin worked for the District of Columbia Superior Court from February 18,

1975, until March 7, 1996. During that time, he had contributions to the Federal Civil

Service Retirement Program automatically deducted from his paycheck. On December

17, 1996, Mr. Martin requested a refund of the deducted amounts.         The Office of
Personnel Management (“OPM”) authorized the refund of $30,105.59 on January 6,

1997. Mr. Martin has not alleged that he did not receive this payment.

      On January 20, 2008, Mr. Martin applied for immediate retirement and requested

a lifetime annuity. OPM denied his request, stating that Mr. Martin was not eligible for

retirement benefits because he had previously received a refund of the deducted

amounts and had not been reemployed by the federal government. Mr. Martin filed an

appeal requesting payment of retirement benefits. On April 25, 2008, the administrative

law judge issued an initial decision affirming OPM’s denial of Mr. Martin’s claim. The

MSPB denied Mr. Martin’s petition for review on July 30, 2008.

      Mr. Martin appeals. We have jurisdiction under 28 U.S.C. § 1295(a)(9).

                                   II. DISCUSSION

      This court may only reverse the MSPB if its decision 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).

      Mr. Martin presents three arguments on appeal. First, he argues that OPM broke

the law by not properly advising him in 1996 that the refund of retirement contributions

would cause him to lose his retirement benefits. Second, he argues that “many others”

have received refunds and are also receiving retirement payments. Finally, he argues

that the District of Columbia Superior Court broke the law by terminating his

employment on March 7, 1996. We address each argument in turn.

      An employee who receives a refund of his retirement deductions loses his right to

a retirement annuity. 5 U.S.C. § 8342(a). In this case, it is undisputed that Mr. Martin




2008-3324                                  2
requested and received such a refund by filling out and submitting Standard Form 2802.

However, Mr. Martin asserts that he was not properly warned about the effect of

receiving a refund and would not have submitted Form 2802 had he known that he

would lose his annuity. The third page of the form signed by Mr. Martin stated that

applicants with more than five years of service “may be entitled to annuity rights which

you will forfeit by receiving this refund.” Regardless of his actual awareness of this

warning, Mr. Martin had a responsibility to read the form carefully before signing it,

submitting it, and accepting the refund.     As such, he cannot be “relieved from the

consequences” unless he shows “mental incompetence, duress, or fraud.” Collins v.

Office of Pers. Mgmt., 45 F.3d 1569, 1573 (Fed. Cir. 1995). Mr. Martin has not argued

that his submission of Form 2802 falls within any of these three criteria. Accordingly,

we conclude that OPM did not break any laws in granting Mr. Martin’s request for a

refund of his retirement deductions, which resulted in the loss of his annuity rights.

       While Mr. Martin argues that “many others” are receiving retirement payments

even though they previously received refunds of their deductions, he does not

specifically identify who those “others” are. Without more detailed evidence, we are

unable to evaluate Mr. Martin’s claim. We note, however, that the statutes specifically

allow individuals who are reemployed with the federal government to receive retirement

annuities if they pay back the refund that they received.         5 U.S.C. § 8334(d)(1).

Because Mr. Martin neither obtained new employment with the government nor repaid

the $30,105.59 he received, he is not eligible for a retirement annuity.

       Mr. Martin also asserts that the termination of his employment in 1996 was in

violation of the law. It is too late for Mr. Martin to make this argument. An employee




2008-3324                                    3
who wishes to challenge his termination may appeal to the MSPB within thirty days of

the effective date of the termination. 5 C.F.R. § 1201.22(b). Any appeal to this court

must be made within sixty days of receiving notice of the Board’s decision. 5 U.S.C.

§ 7703(b)(1). Mr. Martin stated in a January 20, 2008 letter to OPM that he had a

hearing after his termination in 1996.        Because many years passed before he

questioned the legality of his termination in this appeal, we cannot give Mr. Martin the

relief he requests. See id.

                                   III. CONCLUSION

       Because the MSPB did not err in denying Mr. Martin’s request for a retirement

annuity, we affirm.

                                        COSTS

       Each party shall bear its own costs.




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