Dullas v. Office of Personnel Management ( 2017 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
VILLARDO D. DULLAS,
Petitioner
v.
OFFICE OF PERSONNEL MANAGEMENT,
Respondent
______________________
2017-1683
______________________
Petition for review of the Merit Systems Protection
Board in No. SF-0831-16-0165-I-1.
______________________
Decided: September 7, 2017
______________________
VILLARDO D. DULLAS, San Narciso, Zambales, Philip-
pines, pro se.
DOUGLAS GLENN EDELSCHICK, Commercial Litigation
Branch, Civil Division, United States Department of
Justice, Washington, DC, for respondent. Also represent-
ed by CHAD A. READLER, ROBERT E. KIRSCHMAN, JR.,
FRANKLIN E. WHITE, JR.; PAUL ST. HILLAIRE, Office of
General Counsel, Office of Personnel Management, Wash-
ington, DC.
______________________
2 DULLAS v. OPM
Before MOORE, CHEN, and HUGHES, Circuit Judges.
PER CURIAM.
Villardo Dullas appeals from the final decision of the
Merit Systems Protection Board (Board) affirming the
determination by the Office of Personnel Management
(OPM) that he does not qualify for a Civil Service Retire-
ment System (CSRS) annuity. Dullas v. Office of Pers.
Mgmt., No. SF-0831-16-0165-I-1 (M.S.P.B. Dec. 28, 2016).
Because the Board’s decision is in accordance with the law
and is supported by substantial evidence, we affirm.
BACKGROUND
Mr. Dullas served as a civilian welder at the United
States Naval Ship Repair Facility in Subic Bay, Philip-
pines, from August 1971 through July 1992. From Au-
gust 1971 through January 1980, his service consisted of
numerous temporary appointments limited to one year or
less. App’x 10. From January 1980 through July 1992,
he served under an indefinite excepted service appoint-
ment in the same welder position. In July 1992, he was
terminated as part of a reduction in force with seventeen
months of severance pay. Id.
The Standard Form 50s (SF50s) that document the
employment status of Mr. Dullas reflect that he served in
a full-time excepted service position, with retirement
coverage listed as “None” or “Other.” App’x 10–11. Dur-
ing his service, no contributions from his pay were made
to the Civil Service Retirement and Disability Fund
(Fund). App’x 14.
In September 2013, Mr. Dullas applied for a deferred
retirement annuity under the CSRS. The OPM denied his
application for lack of “covered” service. App’x 11, App’x
28–33. Mr. Dullas then appealed to the Board, which
issued an initial decision affirming the OPM’s decision.
App’x 9. In December 2016, the Board issued a final
DULLAS v. OPM 3
order that affirmed and adopted the initial decision.
App’x 5–8. The Board found that the service by Mr.
Dullas was under temporary and indefinite appointments
that were excluded from Civil Service Retirement Act
(CSRA) coverage. App’x 6. The Board also rejected Mr.
Dullas’ argument that 5 C.F.R. § 831.303(a) retroactively
implemented automatic coverage for all personnel that
rendered service between 1920 and 1980. App’x 6–7.
Mr. Dullas timely petitioned this court for review. We
have jurisdiction under 28 U.S.C. § 1295(a)(9).
DISCUSSION
Our scope of review of a decision of the Board is lim-
ited. The Board’s decision must be affirmed unless we
conclude that it was “(1) arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with the 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 Dela Rosa
v. Office of Pers. Mgmt., 583 F.3d 762, 764 (Fed. Cir.
2009).
“To qualify for a civil service retirement annuity, a
government employee ordinarily must complete at least
five years of creditable service, and at least one of the two
years prior to separation must be ‘covered service,’ i.e.,
service that is subject to the [CSRA].” Quioscon v. Office
of Pers. Mgmt., 490 F.3d 1358, 1360 (Fed. Cir. 2007); 5
U.S.C. § 8333. Service under temporary or indefinite
appointments is excluded from coverage by the CSRA.
Quioscon, 490 F.3d at 1360; 5 C.F.R. § 831.201(a).
The record shows that Mr. Dullas served temporary
and indefinite appointments from 1971 to 1992. App’x 10.
Although this may constitute creditable service, Mr.
Dullas has failed to show that he served in a position
covered by the CSRA. Mr. Dullas’ SF50s only stated
“None” or “Other,” and he offers no evidence that the
4 DULLAS v. OPM
forms contained errors or were otherwise incomplete.
Further, the appointment forms show that no CSRS
retirement benefit contributions were ever deducted from
his pay, and that he received severance pay under a non-
CSRS plan (i.e., Filipino Employment Personnel Instruc-
tions (FEPI)). App’x 10–11; App’x 14–18.
Mr. Dullas does not challenge these factual findings.
Despite lacking “covered service,” he nevertheless argues
that an OPM regulation, 5 C.F.R. § 831.303(a), retroac-
tively implemented automatic coverage under the CSRS
for all Federal employees who rendered service between
1920 and 1982. The pertinent regulation states:
Periods of creditable civilian service performed by
an employee or Member after July 31, 1920, but
before October 1, 1982, for which retirement de-
ductions have not been taken shall be included in
determining length of service to compute annui-
ty . . . ; however, if the employee, Member, or sur-
vivor does not elect either to complete the deposit
described by section 8334(c) of title 5, United
States Code, or to eliminate the service from an-
nuity computation, his or her annuity is reduced
by 10 percent of the amount which should have
been deposited (plus interest) for the period of
noncontributory service.
5 C.F.R. § 831.303(a) (emphasis added).
Mr. Dullas’ argument that § 831.303(a) allows him to
convert his “creditable” service into “covered” service is
unavailing. The regulation on which Mr. Dullas relies
only applies to “an employee,” and allows periods of
“creditable civilian service” to be “included in determining
length of service to compute annuity.” Id. In other words,
it addresses whether service is creditable and allows an
employee who qualifies for an annuity to include certain
periods of creditable service in the calculation. It does not
convert non-covered service, such as that of Mr. Dullas,
DULLAS v. OPM 5
into covered service. Nor does it otherwise render Mr.
Dullas eligible for a CSRS annuity. See Hocson v. Office
of Pers. Mgmt., 662 F. App’x 922, 924 (Fed. Cir. 2012)
(“There is no statutory support for [appellant’s] argu-
ments that § 831.303(a) retroactively converted creditable
service into covered service or otherwise changed who
qualified for an annuity.”); see also Dela Rosa, 583 F.3d at
765 (holding that a former employee may “make a deposit
only if that former employee is already covered by the
CSRS.”).
At all times, Mr. Dullas served in temporary and ex-
cepted service indefinite positions that were excluded
from the CSRS. Although Mr. Dullas may have had more
than five years of creditable service, § 831.303(a) did not
convert creditable excluded positions into CSRA covered
service. The only effect of § 831.303(a) is to permit per-
sons already covered by the CSRS to include certain
service when calculating the annuity. Accordingly, the
Board did not err in determining that Mr. Dullas served
in positions that did not constitute covered service for
CSRS eligibility purposes.
We have considered Mr. Dullas’ additional arguments
and conclude that they do not warrant a different result.
CONCLUSION
For the foregoing reasons, this court affirms the
Board’s decision.
AFFIRMED
COSTS
No costs.