Francisco v. Office of Personnel Management , 620 F. App'x 908 ( 2015 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
EDGARDO G. FRANCISCO,
Petitioner
v.
OFFICE OF PERSONNEL MANAGEMENT,
Respondent
______________________
2015-3035
______________________
Petition for review of the Merit Systems Protection
Board in No. SF-0831-14-0436-I-1.
______________________
Decided: July 8, 2015
______________________
EDGARDO G. FRANCISCO, San Juan, San Narcisco
Zambales, Philippines, pro se.
WILLIAM PORTER RAYEL, Commercial Litigation
Branch, Civil Division, United States Department of
Justice, Washington, DC, for respondent. Also represent-
ed by BENJAMIN C. MIZER, ROBERT E. KIRSCHMAN, JR.,
PATRICIA M. MCCARTHY.
______________________
2 FRANCISCO v. OPM
Before NEWMAN, O’MALLEY, and CHEN, Circuit
Judges.
PER CURIAM.
Edgardo Francisco appeals the decision of the Merit
System Protection Board (“Board”) affirming the ruling of
the U.S. Office of Personnel Management (“OPM”) that
Francisco is not entitled to a civil service annuity under
the Civil Service Retirement System (“CSRS”). Francisco
v. Office of Pers. Mgmt., No. SF-0831-14-0436-I-1, 2014
MSPB Lexis 6512 (M.S.P.B. Sept. 18, 2014) (“Board
Decision”). We affirm.
I
Francisco worked for the Department of the Navy in
Subic Bay, Philippines intermittently from 1972 through
1992. The Navy employed Francisco as a “mechanical
instrument mechanic” from May 11, 1972 through August
24, 1973, as a “mechanical instrument mechanic interme-
diate” from January 2, 1974 through June 13, 1979, and
as an “electronics mechanic” from December 18, 1985
through July 10, 1992. Francisco was hired in 1972 and
1974 to an “excepted appointment”, and his employment
was converted to “indefinite” from 1978 through 1979. In
1985, he was rehired to an excepted appointment, where
he remained through 1992. On the Standard Form 50
(‘SF-50”) forms spanning his employment, his retirement
indicator was consistently either “None” or “Other,” and
his annuitant indicator was “Not Applicable.” No CSRS
contributions were withheld from Francisco’s pay during
the period of his employment. The Navy terminated
Francisco’s employment on June 22, 1992 due to a reduc-
tion-in-force, and upon the termination, Francisco re-
ceived “12 months severance pay based on 12 years and 5
days creditable service with the U.S. Forces Philippines in
accordance with [Filipino Employment Personnel Instruc-
tions (“FEPI”)]”. Resp’t App. 13.
FRANCISCO v. OPM 3
Francisco filed an application for deferred retirement
benefits with the CSRS on September 8, 2012, requesting
an annuity on the basis of his federal service from 1974
through 1979. On February 28, 2013, OPM denied his
request, acknowledging that, although he performed
civilian service for the United States, he did not serve in a
position subject to the Civil Service Retirement Act
(“CSRA”) and is not eligible for a CSRS annuity. Francis-
co filed a request for reconsideration, claiming that his
application for an annuity was limited to his federal
service ending before October 1982. Francisco also ar-
gued that his application for benefits included a request
to pay a deposit towards the annuity under 5 C.F.R.
831.303(a) in order to correct the Navy’s failure to with-
draw CSRS contributions during his employment. On
reconsideration, OPM again denied Francisco’s claims for
an annuity, concluding that Francisco did not, at any time
during his employment with the Navy, work in a position
subject to the CSRS because “indefinite” and “excepted
appointment” positions were excluded from CSRS cover-
age.
Francisco appealed OPM’s reconsideration decision to
the Board on March 31, 2014. Board Decision, at *1.
Upon review of Francisco’s SF-50 forms, the Administra-
tive Judge (“AJ”) concluded that Francisco had not met
his burden of proving that his appointments with the
Navy were sufficient to qualify him for CSRS benefits. Id.
at *3–5. The AJ held that Francisco did not establish that
he had at least one year of covered service in the last two
years of any of his employment periods, as required by 5
U.S.C. § 8333(b) (2012). In particular, the AJ found that
the “indefinite” and “excepted appointment” categories of
Francisco’s employment were excluded from CSRS re-
tirement coverage under OPM regulations at 5 C.F.R.
§ 831.201(a). Board Decision, at *4. The AJ also noted
that the lack of CSRS retirement deductions and the
retirement and annuitant indicators on Francisco’s SF-50
4 FRANCISCO v. OPM
forms further supported the conclusion that Francisco’s
employment did not qualify him for CSRS retirement
coverage. Id. at *4–5. Francisco did not petition for
review of the AJ’s initial decision, and it became the final
decision of the Board on October 23, 2014.
Francisco filed a timely notice of appeal on February
13, 2015, and we have jurisdiction pursuant to 28 U.S.C.
§ 1295(a)(9).
II
The scope of our review of a Board decision is limited.
We can set aside a Board decision only if it was: (1) “arbi-
trary, 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).
Francisco argues that the Board and OPM erred
because he has only sought benefits based on his federal
service ending prior to October 1, 1982, and both the
Board and OPM inappropriately considered the full
extent of his federal service time in their decision-making.
Francisco also claims that he is entitled to make a deposit
towards his annuity pursuant to 5 C.F.R. § 831.303(a),
and OPM erred both by not discussing his request to
make the deposit, and by not allowing him to submit a
deposit. The government responds that the Board’s and
OPM’s consideration of Francisco’s entire service time is
harmless error. None of Francisco’s service qualifies as
“covered service” under the CSRA, and therefore Francis-
co would not be eligible for an annuity regardless of the
time period considered by the agency. The government
also points to evidence in Francisco’s SF-50 forms, such as
the retirement and annuitant indicators and Francisco’s
receipt of a severance package under the FEPI, as support
of its argument that Francisco did not participate in
covered service during his employment with the Navy. As
FRANCISCO v. OPM 5
for Francisco’s claim that he be allowed to make a deposit
under 5 C.F.R. § 831.303(a), the government argues that a
former employee who does not already have annuity
rights through covered service may not create annuity
rights through a deposit under 5 C.F.R. § 831.303(a).
We agree with the government’s arguments. A feder-
al employee seeking retirement benefits must demon-
strate by a preponderance of the evidence that he or she is
entitled to the benefits. 5 C.F.R. § 1201.56(a)(2) (2015);
Cheeseman v. Office of Pers. Mgmt., 791 F.2d 138, 141
(Fed. Cir. 1986). Eligibility for retirement benefits under
the CSRA generally requires that the employee demon-
strate that they meet two conditions. 5 U.S.C. § 8333;
Rosete v. Office of Pers. Mgmt., 48 F.3d 514, 516 (Fed. Cir.
1995). First, the employee “must complete at least 5
years of civilian service before he is eligible for an annuity
under this subchapter.” 5 U.S.C. § 8333(a). This service
is termed “creditable service,” and most federal service is
creditable. Herrera v. United States, 849 F.2d 1416, 1417
(Fed. Cir. 1988). There is no dispute that Francisco has
completed at least five years of creditable service. Second,
the employee “must complete, within the last 2 years
before any separation from service . . . at least 1 year of
creditable civilian service during which he is subject to
this subchapter before he or his survivors are eligible for
annuity.” 5 U.S.C. § 8333(b). This service is termed
“covered service,” and includes only appointments subject
to the CSRA and “for which an employee [ ] deposited part
of his or her pay into the Civil Service Retirement and
Disability Fund.” Rosete, 48 F.3d at 516.
Congress designated OPM as the agency that admin-
isters the CSRS, including permitting OPM to exclude
certain categories of employees from covered service. 5
U.S.C. § 8347. This includes employees “whose employ-
ment is temporary or intermittent.” Id. § 8347(g). OPM
has subsequently promulgated regulations excluding
certain employees from covered service, including tempo-
6 FRANCISCO v. OPM
rary, intermittent, and excepted indefinite appointments.
5 C.F.R. §§ 831.201(a)(1),(2),(6),(13),(14). We have inter-
preted these regulations to include indefinite appoint-
ments under the exclusions for temporary appointments.
See Quioscan v. Office of Pers. Mgmt., 490 F.3d 1358,
1360–61 (Fed. Cir. 2007); Rosete, 48 F.3d at 519.
The Board and OPM correctly determined that Fran-
cisco did not have the necessary covered service to qualify
for an annuity under 5 U.S.C. § 8333(b). Francisco’s SF-
50 forms indicate that his employment was either “ex-
cepted appointment” or “indefinite” for the entirety of his
time with the Navy. Under our prior interpretations of
the exclusions in 5 C.F.R. § 831.201, both excepted ap-
pointments and indefinite appointments do not qualify as
covered service. Francisco therefore did not complete
“within the last 2 years before” any of his three separa-
tions from service “at least 1 year of creditable service
during which he is subject to” the CSRA. 5 U.S.C.
§ 8333(b).
The Board and OPM also correctly identified other ev-
idence in Francisco’s SF-50 forms that support their
conclusion that Francisco did not have any covered ser-
vice. First, no retirement contributions were withheld
from Francisco’s pay. Quiocsan, 490 F.3d at 1360. The
retirement indicator on his SF-50 forms was either “None”
or “Other,” and the annuitant indicator was “Not Applica-
ble.” And finally, Francisco received a severance package
under the FEPI, and his receipt of benefits under a non-
CSRS retirement plans “indicates that his service was not
covered under the CSRS.” Id.; see also 5 U.S.C.
§ 8331(1)(ii) (defining “employee” under the CSRS as not
including “an employee subject to another retirement
system for Government employees”). These facts all
strongly indicate that Francisco’s service with the Navy in
the Philippines was, at no point, covered service.
FRANCISCO v. OPM 7
Francisco claims that the Board and OPM erred by
considering his entire employment history, instead of
merely his employment from 1972 through 1979. As we
have explained, however, Francisco did not complete the
requisite one year of covered service at any time between
1972 and 1992, including during his employment from
1972 through 1979. To the extent that there was any
error in the Board and OPM considering Francisco’s post-
1979 employment, that error was harmless.
Finally, Francisco argues that he should have been
permitted to make a deposit towards his annuity under 5
C.F.R. § 831.303(a), and the Board and OPM erred by
denying him this opportunity. Under 5 U.S.C. § 8334(c),
an employee credited with civilian service may deposit an
amount necessary to compensate for retirement deduc-
tions or deposits that were not made during his or her
service. Former employees, like Francisco, may make
deposits only if they “retain[] civil service retirement
annuity rights based on a separation from a position in
which retirement deductions were properly withheld and
remain . . . in the Civil Service Retirement and Disability
Fund.” 5 C.F.R. § 831.112(a)(2). Thus, a former employee
may only “make a deposit [ ] if that former employee is
already covered by the CSRS.” Dela Rosa v. Office of Pers.
Mgmt., 583 F.3d 762, 765 (Fed. Cir. 2009). “A retroactive
deposit does not convert a non-covered position into a
covered position.” Quioscon, 490 F.3d at 1360. Because
Francisco did not have any covered service during his
employment with the Navy, a deposit under 5 C.F.R.
§ 831.303(a) cannot cure this defect in his application for
a CSRS annuity. The Board and OPM therefore did not
err in denying Francisco the opportunity to make a depos-
it into the Civil Service Retirement and Disability Fund.
Because the Board’s and OPM’s determination that
Francisco did not serve in a covered position is supported
by substantial evidence, we affirm the Board’s decision.
8 FRANCISCO v. OPM
AFFIRMED
COSTS
No costs.