Calimlim v. Office of Personnel Management , 489 F. App'x 458 ( 2012 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
__________________________
ROMEO M. CALIMLIM,
Petitioner,
v.
OFFICE OF PERSONNEL MANAGEMENT,
Respondent.
__________________________
2012-3097
__________________________
Petition for review of the Merit Systems Protection
Board in case no. SF0831110412-I-1.
__________________________
Decided: July 16, 2012
__________________________
ROMEO M. CALIMLIM, Zambales, Philippines, pro se.
DAVID D’ALESSANDRIS, Attorney, Commercial Litiga-
tion Branch, Civil Division, United States Department of
Justice, of Washington, DC, for respondent. With him on
the brief were STUART F. DELERY, Acting Assistant Attor-
ney General, JEANNE E. DAVIDSON, Director, and DONALD
E. KINNER, Assistant Director. Of counsel on the brief
CALIMLIM v. OPM 2
was JO-ANN CHABOT, Office of Personnel Management,
Office of the General Counsel, of Washington, DC.
__________________________
Before BRYSON, PROST, and O’MALLEY, Circuit Judges.
PER CURIAM.
Romeo Calimlim appeals the final decision of the
Merit Systems Protection Board (“MSPB” or “Board”)
affirming the Office of Personnel Management’s (“OPM’s”)
ruling that Mr. Calimlim does not qualify for a Civil
Service Retirement System (“CSRS”) annuity and is
ineligible to make retroactive deposits into the CSRS
fund. Calimlim v. Office of Pers. Mgmt., No.
SF083110412-I-1 (M.S.P.B. Jan. 6, 2012). We affirm.
BACKGROUND
Romeo Calimlim worked as a helper, and later as a
patternmaker for the Department of the Navy in Subic
Bay, Philippines from 1965 to 1992. His position was an
indefinite appointment and at no point during his service
did he make retirement deductions. According to the only
Standard Form 50 on record, at the time of his resigna-
tion, his retirement plan was “other” and his annuitant
indicator was “not applicable.” In 1992, when he re-
signed, Mr. Calimlim received “lump-sum benefits equiva-
lent to 105% of 26 months pay based on 26 years . . . in
accordance with [Filipino Employment Personnel Instruc-
tions (‘FEPI’)].” Resp’t’s App. 54. Sixteen years after his
resignation, Mr. Calimlim submitted an application to
make a deposit, comprising a percentage of his pay with
interest, into the CSRS fund and an application for de-
ferred retirement. On October 2, 2008, OPM denied his
application because he never served in a position subject
to CSRS. Upon reconsideration, OPM affirmed its initial
3 CALIMLIM v. OPM
decision, explaining that Mr. Calimlim had not satisfied
one of the two prerequisites for annuity benefits: none of
his time with the Navy was “covered service.”
Mr. Calimlim appealed to the MSPB. On July 11,
2011, the Board’s administrative judge affirmed OPM’s
decision. The administrative judge held that Mr. Calim-
lim had not met his burden of proving that he qualified
for an annuity under CSRS because he did not establish
that he had at least one year of covered service in the last
two years of his position, as required by 5 U.S.C. §
8333(b). The administrative judge also noted that ex-
cepted indefinite appointments, such as Mr. Calimlim’s,
are excluded from CSRS by statutes and regulations.
With regards to Mr. Calimlim’s application to make
deposits, the administrative judge held that he did not
qualify as an employee as defined by 5 C.F.R. §
831.112(a), because, according to the regulation, such an
employee would need to be eligible for a CSRS annuity,
which Mr. Calimlim was not. Mr. Calimlim petitioned for
review. On January 2, 2012, the full Board denied the
petition, agreeing with the administrative judge that Mr.
Calimlim is ineligible for a CSRS annuity and thus ineli-
gible to make a deposit into the CSRS fund. It noted that
a retroactive deposit, such as the one Mr. Calimlim re-
quests, cannot convert non-covered service into covered
service entitling him to a CSRS annuity.
Mr. Calimlim appeals the MSPB’s denial of his peti-
tion for rehearing.
DISCUSSION
The scope of review in an appeal from an MSPB deci-
sion is limited. We can only set aside a MSPB decision if
it was “(1) arbitrary, capricious, an abuse of discretion, or
CALIMLIM v. OPM 4
otherwise not in accordance with law; (2) obtained with-
out procedures required by law, rule, or regulation having
been followed; or (3) unsupported by substantial evi-
dence.” 5 U.S.C. § 7703(c); see Briggs v. Merit Sys. Prot.
Bd., 331 F.3d 1307, 1311 (Fed. Cir. 2003).
Mr. Calimlim challenges OPM’s decision, as affirmed
by MSPB, on two grounds: (1) that he is entitled to a
CSRS annuity, and (2) that he can make deposits into a
CSRS fund. To qualify for a CSRS annuity, a government
employee must complete (1) five years of creditable ser-
vice, and (2) at least one of two years of covered service in
the two years prior to separation. 5 U.S.C. § 8333. “Cov-
ered service” is service that is subject to CSRS. Id.; see
Quiocson v. Office of Pers. Mgmt., 490 F.3d 1358, 1360
(Fed. Cir. 2007). Service rendered under, inter alia,
temporary or indefinite appointment is excluded from
“covered service” under OPM regulations. See 5 C.F.R. §
831.201(a). Mr. Calimlim bears the burden of proving
entitlement to the benefit he seeks by a preponderance of
the evidence. Id. § 1201.56(a)(2).
Mr. Calimlim argues that he qualifies for a CSRS an-
nuity. The MSPB did not dispute, nor do we, that his
twenty-six years of service is creditable. Rather, the issue
is whether either of his last two years of service qualifies
as covered service, as required by the statute. In this
regard, even Mr. Calimlim admits that his 1965 appoint-
ment constituted creditable service “but not covered
service because it was not subjected to CSR [sic] deduc-
tions.” Pet’r’s Br. 8. 1 In addition to these admissions, the
fact that no CSRS pay contributions were ever withheld
1 See also Pet’r’s Br. 12-13 (“The indefinite
category of my appointment had been included in 5 C.F.R.
831.303(a) making my indefinite appointment excluded by
the CSRA [sic] . . . .”).
5 CALIMLIM v. OPM
from his pay and that he received benefits under a non-
CSRS plan—the FEPI plan—indicates that his service
was not covered under the CSRS. 5 U.S.C. § 8331(1)(L)(ii)
(excluding, from term “employee” “an employee subject to
another retirement system for Government employees”);
see Quiocson, 490 F.3d at 1360 (finding, the fact that a
deceased employee at Subic Bay never paid into the CSRS
fund or received benefits under FEPI supported classifica-
tion of his service as not “covered service”). Thus, the
MSPB did not err in finding that Mr. Calimlim did not
meet his burden of establishing entitlement to a CSRS
annuity.
Because Mr. Calimlim cannot establish that he is en-
titled to a CSRS annuity, the MSPB did not err in deny-
ing his request to make a deposit to remedy the fact that
no CSRS deposits were withheld from his pay. Under 5
U.S.C. § 8334(c), employees or members for whom retire-
ment deductions or deposits have not been made are
permitted to make retroactive deposits with interest.
OPM regulations explain that
[a] person may make a deposit or redeposit under
[5 U.S.C. § 8334(c)] if he or she is an “employee.”
For purposes of this paragraph, an employee is—.
. . (2) A former employee (whose annuity has not
been finally adjudicated) who retains civil service
annuity rights based on separation from a posi-
tion in which retirement deductions were properly
withheld or remain (or have been redeposited in
whole or in part) in the Civil Service Retirement
and Disability Fund.
5 C.F.R. § 831.112(a). The MSPB correctly held that
because Mr. Calimlim did not separate from a position in
which he was entitled to a CSRS annuity, he does not
CALIMLIM v. OPM 6
qualify as an “employee” under this regulation. The fact
that retirement deductions were never withheld from his
pay provides further evidence that he is not entitled to
make a deposit. As we previously held, the absence of
deductions is an indication that an employee was not
serving in a covered position; a retroactive deposit by such
an employee cannot not serve to convert a non-covered
position into a covered position. See Dela Rosa v. Office of
Pers. Mgmt., 583 F.3d 762, 765-66 (Fed. Cir. 2009); Quio-
scon, 490 F.3d at 1360. Thus, the MSPB did not act in an
arbitrary or capricious manner, abuse its discretion, or
otherwise act not in accordance with law in upholding
OPM’s denial of Mr. Calimlim’s application to deposit.
The MSPB’s final decision upholding OPM’s actions is
affirmed.
COSTS
Each party shall bear its own costs.
AFFIRMED