               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

                                         06-3143


                              SYLVESTER CASIMIER, JR.,

                                                        Petitioner,


                                             v.


                       OFFICE OF PERSONNEL MANAGEMENT,

                                                        Respondent.

                            __________________________

                            DECIDED: November 8, 2006
                            __________________________

Before RADER, Circuit Judge, CLEVENGER, Senior Circuit Judge, and PROST, Circuit
Judge.

PER CURIAM.

       Sylvester Casimier, Jr., appeals from the decision of the Merit Systems

Protection Board (“MSPB” or “Board”) in which the MSPB held that Casimier did not

establish that he is entitled to disability retirement benefits.      Because substantial

evidence supports the Board’s finding that Casimier failed to prove that within a year

after he left Government service he applied for disability retirement benefits, we affirm.

                                     BACKGROUND

       Casimier was employed in the position of Distribution Clerk with the U.S. Postal

Service (“USPS”) in New Orleans, Louisiana, until his removal, effective March 15,
1997.1 The facts of this case are well described in the administrative judge’s initial

decision and therefore need not be fully reiterated here. In short, Casimier asserts that

on February 13, 1998, he sent the Office of Personnel Management (“OPM”) an

Application for Immediate Retirement – Civil Service Retirement System Standard Form

(“SF”) 2801 along with two other forms, an SF 2824A (“Applicant’s Statement of

Disability”) and an SF 2824C (“Physician’s Statement”) in an attempt to apply for

benefits. OPM’s records indicate that it never received an SF 2801 from Casimier.

After sending him three letters requesting more information, and not receiving any

response, OPM considered his 1998 filing abandoned. On March 31, 2003, Casimier

filed for a refund of his retirement deductions under the Civil Service Retirement System

(“CSRS”) and OPM issued his refund as requested. Thereafter, on December 5, 2003,

Casimier applied for immediate retirement under both the CSRS and the Federal

Employees’ Retirement System (“FERS”).

      In its decision dated January 16, 2004, OPM found that the time limit for Casimier

to file for disability retirement had expired because he had been separated from Federal

service for more than one year by the time he sent OPM his December 5, 2003

application. He filed a request for reconsideration with respect to OPM’s determination

that his 1998 filing had been incomplete. OPM denied his request and he appealed to

the MSPB.



      1
                Casimier previously appealed his removal to the Board where it was
affirmed. See Casimier v. U.S. Postal Serv., No. DA0752970313-B-1 (M.S.P.B. July 31,
1998). The Board denied Casimier’s petition for review and the administrative judge’s
initial decision became the final decision of the Board. Casimier v. U.S. Postal Serv., 81
M.S.P.R. 136 (M.S.P.B. Sept. 30, 1998). Casimier filed an appeal with this court and
we affirmed the Board’s decision. See Casimier v. U.S. Postal Serv., 194 F.3d 1330
(Fed. Cir. 1999) (Table).


06-3143                                     2
       Casimier, through counsel, appealed OPM’s decision to the MSPB, asserting

“that he submitted an application for disability retirement, Standard Form (SF) 2801, in

February of 1998[,] . . . and that OPM failed to act on that application.” Casimier v.

Office of Pers. Mgmt., DA831E040459-I-1, slip op. at 3 (M.S.P.B. Apr. 29, 2005).

       The administrative judge found that although Casimier produced what was

alleged to be a copy of the SF 2801 application he submitted in 1998, Casimier failed to

establish by preponderant evidence that he actually filed an application at that time. Id.,

slip op. at 8. Rather, “the evidence of record . . . indicates that [he] did not file an

application until long after the filing period expired.” Id. The administrative judge relied,

inter alia, upon the following evidence in reaching that conclusion: (1) Casimier’s failure

to indicate in his December 5, 2003 application that he had previously applied for

benefits in 1998; (2) OPM’s records of Casimier’s 1998 filing did not include an SF 2801

application; (3) the cover letter he sent in 1998 with his submission to OPM mentions

that two other forms are included, but does not mention a retirement application

(SF 2801); (4) Casimier’s actions—not contacting OPM at all during that time either to

follow up on his alleged application or to respond to OPM’s request for more

information, requesting a refund of his contributions, and falsely asserting in some

correspondence with OPM that he had resigned from service when in reality he was

terminated; and (5) that he offered no explanation at the hearing for why the evidence

as presented above indicates that he did not file an SF 2801 application in 1998.

       The administrative judge’s initial decision became the final decision of the Board

when the full Board denied Casimier’s petition for review. Casimier v. Office of Pers.

Mgmt., DA831E040459-I-1 (M.S.P.B. Sept. 21, 2005).




06-3143                                      3
       Casimier timely appealed to this court. We have jurisdiction pursuant to 5 U.S.C.

§ 7703(b).

                                      DISCUSSION

       This court

       review[s] the record and hold[s] unlawful and set[s] aside any agency
       action, findings, or conclusions found to be--
       (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) (2000).

       On appeal, Casimier asserts that (1) his filing of a request for retirement benefits

in 1998 satisfied the requirements for making a claim for benefits; (2) OPM’s receipt of

his 1998 submission, even assuming it did not contain his application, was sufficient to

interrupt (or toll) the running of the one-year time limitation after ending Federal service

such that his December 2003 application perfects his claim for retirement benefits; and

(3) the OPM regulations governing the filing of an application of disability retirement

benefits are unconstitutional because they impose particular requirements for filing an

application for benefits.

       OPM first responds by noting that Casimier’s sole contention before the

administrative judge was that he had submitted an application for retirement benefits in

1998 and therefore his other arguments are not properly before us. Additionally, OPM

asserts that the MSPB’s conclusion that Casimier did not include an application for

disability retirement benefits in his 1998 submission is supported by substantial

evidence and that we should affirm the Board’s decision. Finally, OPM argues that




06-3143                                      4
even if Casimier’s 1998 submission could somehow be considered an informal claim for

benefits, his subsequent application for and refund of his retirement contributions makes

him ineligible for a retirement annuity because it cuts off any possibility that he could

later “perfect” a claim.

       As the relevant statute makes clear, an employee such as Casimier who has

been separated from service must, within one year of his separation from such service,

file an application for benefits, the only exception being for mental incompetence. See 5

U.S.C. § 8337(b) (2000). Additionally, “[i]n appeals from reconsideration decisions of

the Office of Personnel Management involving retirement benefits, . . . the appellant has

the burden of proving, by a preponderance of the evidence, entitlement to the benefits.”

5 C.F.R. § 1201.56 (2005).

       We address each of Casimier’s assertions in turn. First, Casimier asserts that he

included an SF 2801 application in his 1998 submission to OPM. Although Casimier

produced a copy of an SF 2801 application that he allegedly included in his 1998

submission to OPM, the facts as found by the administrative judge demonstrate that his

actions and responses on subsequent forms were inconsistent with the actions of

someone who had filed an application in 1998.          Therefore, we conclude that the

substantial evidence supports the administrative judge’s finding that Casimier did not file

an SF 2801 application for disability retirement benefits within one year of his separation

from service.

       Casimier next asserts that his 1998 submission was at least sufficient to toll the

running of the one-year time period for filing an application for retirement benefits and

alleges that his 1998 submission could be considered an informal claim which was




06-3143                                     5
perfected by his 2003 application.         While Casimier apparently failed to raise these

arguments before the Board, we nonetheless address them briefly.                 Casimier’s

assertion that his 1998 filing could toll the running of the one-year application filing

period completely disregards the statutory provision itself, which provides that only

mental incompetence during the relevant time period can toll the time requirement for

filing an application. See 5 U.S.C. § 8337(b) (2000). Casimier has not raised any

allegation of mental incompetence and therefore there is no basis upon which to justify

tolling the one-year filing requirement.

       Furthermore, Casimier’s March 31, 2003 request for, and receipt of, a refund of

his retirement contributions effectively cut off his ability to receive a disability annuity

even assuming that his 1998 submission was sufficient to toll the one-year time period

or sufficient to raise an informal claim for benefits. The MSPB has held that such a

request and refund make him ineligible for a retirement annuity. See Danganan v.

Office of Pers. Mgmt., 55 M.S.P.R. 265, 269 (M.S.P.B. Oct. 8, 1992) (holding that the

“receipt of the payment of the lump sum credit” defeats an entitlement to retirement

benefits based on such service) (quoting 5 U.S.C. § 8342(a)); 5 U.S.C. § 8342(a)

(noting that “[e]xcept as provided in section 8343a or 8334(d)(2) of this title, the receipt

of the payment of the lump-sum credit by the employee or Member voids all annuity

rights under this subchapter based on the service on which the lump-sum credit is

based, until the employee or Member is reemployed in the service subject to this

subchapter.”) (emphases added). Thus, even if his 1998 submission was sufficient to

constitute an informal claim for benefits or to somehow toll the one-year application

period, his subsequent receipt of a “lump-sum credit” following his March 31, 2003




06-3143                                        6
request for refund effectively cut-off whatever ability he may (or may not) have had to

perfect any claim based on his 1998 filing.

       Finally, Casimier asserts that the OPM regulations requiring specific filings in

specific time frames are unconstitutional because they deny applicants due process in

the application procedure and result in denying benefits that OPM is contractually

obligated to provide. Casimier does not offer any authority in support of his assertion

that OPM’s regulations are unconstitutional.       Based on the limited nature of the

argument presented, we see no apparent constitutional impediment to requiring the use

of certain forms for various types of benefit applications nor any due process violation

based on OPM’s time period for filing an application.        Further, while OPM may be

obligated to provide annuity benefits if an applicant is so entitled, the regulatory and

statutory framework clearly provide another option—receiving a refund or “lump-sum

credit.” Thus, if an applicant elects to make such a request for refund and the “lump-

sum credit” is received, the payment of the refund satisfies OPM’s contractual

obligations to provide benefits under the relevant statutory provisions.

                                     CONCLUSION

       Accordingly, the decision of the Board is affirmed.

       No costs.




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