Tomboc v. Office of Personnel Management , 355 F. App'x 422 ( 2009 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2009-3252
ANICITO A. TOMBOC,
Petitioner,
v.
OFFICE OF PERSONNEL MANAGEMENT,
Respondent.
Anicito A. Tomboc, of Pangasinan, Philippines, pro se.
Robert C. Bigler, Trial Attorney, Commercial Litigation Branch, Civil Division,
United States Department of Justice, of Washington, DC, for respondent. With him on
the brief were Tony West, Assistant Attorney General, Jeanne E. Davidson, Director,
and Franklin E. White Jr., Assistant Director. Of counsel was Wade M. Plunkett, Office
of Personnel Management, of Washington, DC.
Appealed from: Merit Systems Protection Board
NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2009-3252
ANICITO A. TOMBOC,
Petitioner,
v.
OFFICE OF PERSONNEL MANAGEMENT,
Respondent.
Petition for review of the Merit Systems Protection Board in SF0831090028-I-1.
__________________________
DECIDED: December 11, 2009
__________________________
Before RADER, PLAGER, and PROST, Circuit Judges.
PER CURIAM.
Petitioner Anicito A. Tomboc (“Mr. Tomboc”) appeals from the final decision of
the Merit Systems Protection Board (“Board”), which affirmed the Office of Personnel
Management’s (“OPM”) decision and denied his claim for a retirement annuity under the
Civil Service Retirement Act of 1942 (“CSRA”). We affirm.
BACKGROUND
OPM determined that Mr. Tomboc, who had worked for the Department of the
Navy sixty years prior, only had “[one] year, [one] month, and eleven days of potentially
creditable service,” which is short of the requirement of five years of civilian service.
Upon review, the administrative judge determined that Mr. Tomboc provided records
supporting that he had “[four] years, [four] months and [six] days of creditable civil
service.” Further, the administrative judge determined that even if Mr. Tomboc’s work
as a ward boy was added to give him more than five years of creditable service, Mr.
Tomboc still would not be eligible for an annuity because the position he held when he
left the federal service was not covered by the CSRA. Thus, the administrative judge
held that Mr. Tomboc was ineligible for an annuity under the CSRA because Mr.
Tomboc had failed to show that he had five years of creditable service or that he was in
a covered position at the time of his separation. After the full Board denied Mr.
Tomboc’s petition for review, making the initial decision final, he appealed. We have
jurisdiction under 28 U.S.C. § 1295(a)(9).
DISCUSSION
On appeal, Mr. Tomboc asserts that he has the requisite five years minimum
creditable civilian service with the federal government and the CSRA covered his last
position prior to his separation from the civil service. We may set aside a decision of
the Board only when it is: “(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)(1)-(3). To be eligible for a civil service retirement annuity, a government
employee must (1) complete at least five years of creditable service, and (2) at least
one of the two years prior to separation must be covered service, which means service
that is subject to the CSRA. 5 U.S.C. § 8333; Tizo v. Office of Pers. Mgmt, 325 F.3d
1378, 1379 (Fed. Cir. 2003).
2009-3252 2
First, Mr. Tomboc argues that he worked for the requisite five years of creditable
service. He asserts that this is clear from the records presented. We do not agree.
Based on our review of the records, the Board’s decision that Mr. Tomboc did not
complete at least five years of creditable service is neither arbitrary or capricious nor
unsupported by substantial evidence. Because he did not demonstrate the first of the
two statutory required elements, he is not entitled to benefits under the CSRA.
For completeness, however, we address Mr. Tomboc’s second argument. Mr.
Tomboc contends that his last position before his departure from the civil service was a
“covered” position even though no deductions for retirement benefits were withheld from
his pay. He argues that a failure to withhold money is not evidence of whether a
position is covered. Conversely, the government asserts that “[t]he absence of
deductions is an indication that the employee was not serving in a covered position.”
Quiocson v. Office of Pers. Mgmt., 490 F.3d 1358, 1360 (Fed. Cir. 2007). While the
absence of deductions is an indication, it is not necessarily dispositive. In this case,
however, Mr. Tomboc does not present any evidence that he did work at least one year
in a covered position within two years prior to his separation. Thus, he does not satisfy
the second statutory requirement for receiving retirement benefits under the CSRA.
Therefore, Mr. Tomboc has not established that he satisfies the two requirements
for obtaining an annuity under the CSRA, the Board misapplied the law, or that the
Board’s decision is not supported by substantial evidence. Consequentially, the final
decision of the Board is affirmed.
COSTS
Each party shall bear its own costs.
2009-3252 3