Charles E. Lemons v. Office of Personnel Management

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
__________________________
CHARLES E. LEMONS,
Petitioner,
v.
OFFICE OF PERSONNEL MANAGEMENT,
Respondent.
__________________________
2010-3146
__________________________
Petition for review of the Merit Systems Protection
Board in case No. DA831E060462-I-1.
___________________________
Decided: January 12, 2011
___________________________
CHARLES E. LEMONS , Dallas, Texas, pro se.
JEFFREY D. K LINGMAN , Trial Counsel, Commercial
Litigation Branch, Civil Division, United States Depart-
ment of Justice, of Washington, DC, for respondent. With
him on the brief were TONY WEST, Assistant Attorney
General, JEANNE E. D AVIDSON , Director, and ALAN J. LO
RE, Assistant Director. Of counsel on the brief was Paul

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LEMONS v. OPM 2
N. St. Hillaire, Office of the General Counsel, Office of
Personnel Management, of Washington, DC.
__________________________
Before NEWMAN , LOURIE, and MOORE, Circuit Judges.
PER CURIAM.
Mr. Charles E. Lemons appeals the decision of the
United States Merit System Protection Board (Board)
denying his petition for review of the Board’s affirmance
of the Office of Personnel Management’s (OPM’s) denial of
his disability retirement application. Because Mr. Lem-
ons does not satisfy the five-year civilian service require-
ment of the Civil Service Retirement Act, 5 U.S.C. §§ 8331
et seq., and because he filed his application more than one
year after separation from federal civilian service, we
affirm.
Mr. Lemons was employed by the Department of Vet-
erans Affairs from August 5, 1973 until January 14, 1977,
when he was separated after suffering a work-related
back injury. Shortly after separation, Mr. Lemons ap-
plied for, and received, a refund of his retirement contri-
butions. In 2004, Mr. Lemons applied for retirement
under the Civil Service Retirement System. Because Mr.
Lemons had already withdrawn his retirement contribu-
tions, OPM denied his request. Mr. Lemons subsequently
wrote a letter to OPM “changing [his] request to Disabil-
ity Retirement as of 3-1-1974.” OPM denied his modified
request, finding that Mr. Lemons did “not meet the crite-
ria for entitlement to any type of retirement benefits from
[OPM]” because he had less than five years of civilian
service, had already received a refund of his contribu-
tions, and failed to file his application within one year of
separation. Mr. Lemons asked for reconsideration and
forwarded to OPM the Social Security Administration’s

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LEMONS v. OPM 3
determination that he was disabled as of March 1, 1974.
OPM reconsidered its previous decision and concluded
that Mr. Lemons was “not eligible to file an application
for any form of retirement benefit” for the same three
reasons as before. Mr. Lemons appealed to the Board,
alleging that he had 11 years, 6 months, and 15 days of
total service, including his 7 years, 10 months, and 7 days
of military service. In its initial decision, the Board found
that, for the same three reasons, OPM appropriately
denied Mr. Lemons’ application for disability retirement.
Over three years later, Mr. Lemons filed a petition for
review of the Board’s initial decision accompanied by a
service award from the Veterans Administration in ap-
preciation of his ten years of total government service. In
response to a letter from the Board noting, inter alia, that
his request was untimely, Mr. Lemons asked the Board to
waive the deadline for filing his petition. In its Final
Order, the Board noted that “a question exists regarding
the timeliness” of Mr. Lemons’ petition, but proceeded to
deny the petition on the merits. The Board found that
Mr. Lemons’ service award did not provide material
evidence regarding his length of civilian service because it
did not distinguish between his approximately three and
one-half years of civilian service and his nearly eight
years of military service. Thus, because Mr. Lemons had
less than five years of civilian service, and because he
failed to file for disability retirement within one year of
separation, the Board denied the petition for review and
sustained the initial decision. Lemons appeals, and we
have jurisdiction under 28 U.S.C. § 1295(a)(9).
"[F]actual underpinnings of [OPM] disability deter-
minations may not be judicially reviewed, but review is
available to determine whether there has been a substan-
tial departure from important procedural rights, a mis-

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LEMONS v. OPM 4
construction of the governing legislation, or some like
error going to the heart of the administrative determina-
tion." Lindahl v. Office of Pers. Mgmt., 470 U.S. 768, 791
(1985).
To receive disability retirement, Mr. Lemons must
have five years of creditable federal civilian service. 5
U.S.C § 8337(a); 5 C.F.R. § 831.1203(a)(1); Sabado v.
Office of Pers. Mgmt., 905 F.2d 387, 388 (Fed. Cir. 1990).
The Board found that Mr. Lemons completed only three
and a half years of creditable civilian service, which falls
short of this five-year requirement. Furthermore, Mr.
Lemons was required by law to file his request for disabil-
ity retirement within one year of his separation. 5 U.S.C.
§ 8337(b); 5 C.F.R. § 831.1203(a)(5). Because he filed his
request nearly thirty years after his separation, the Board
properly affirmed OPM’s denial. For these reasons, we
affirm the Board’s decision.
In his appeal to this court, Mr. Lemons also states
that he believes that he “was discriminated [against]
based on [his] disability.” Mr. Lemons does not elaborate
further—he does not allege any adverse action resulting
from discrimination. We decline to address this bare
allegation in the first instance on appeal.
AFFIRMED
COSTS
No costs.

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