Lledo v. Office of Pers. Mgmt. ( 2018 )

United States Court of Appeals
for the Federal Circuit
______________________
TITO C. LLEDO,
Petitioner
v.
OFFICE OF PERSONNEL MANAGEMENT,
Respondent
______________________
2017-1717
______________________
Petition for review of the Merit Systems Protection
Board in No. SF-0831-16-0799-I-1.
______________________
Decided: March 28, 2018
______________________
TITO C. LLEDO, San Narcisco, Zambales, Philippines,
pro se.
BORISLAV KUSHNIR, Commercial Litigation Branch,
Civil Division, United States Department of Justice,
Washington, DC, for respondent. Also represented by
CHAD A. READLER, ROBERT E. KIRSCHMAN, JR., FRANKLIN
E. WHITE, JR.
______________________
Before NEWMAN, WALLACH, and CHEN, Circuit Judges.
NEWMAN, Circuit Judge.
2 LLEDO v. OFFICE OF PERS. MGMT.
Tito C. Lledo appeals the decision of the Merit Sys-
tems Protection Board (“Board”) that affirmed the Office
of Personnel Management’s (“OPM”) reconsideration
decision, denying his application for deferred retirement
and his request to make a deposit in the Civil Service
Retirement and Disability Fund (“CSRDF”). Lledo v.
Office of Pers. Mgmt., MSPB Docket No. SF-0831-16-0799-
I-1, 2016 WL 7667554 (Jan. 6, 2017) (“Board Op.”). The
Board’s decision is in accordance with law, and is af-
firmed.
BACKGROUND
From 1968 to 1991, Mr. Lledo was employed by the
United States at the U.S. Navy Public Works Center in
Subic Bay, Philippines. His initial position was as an
“Apprentice (electrician)”—a position designated as
“excepted service – indefinite appointment.” Mr. Lledo
resigned with the designated severance pay on November
13, 1991. During his 23 years as a Navy employee, Mr.
Lledo worked in various positions, culminating in a final
position as a Telephone Installation and Repair Fore-
man I.
On March 31, 2014, Mr. Lledo filed an application for
deferred retirement benefits under the Civil Service
Retirement System (“CSRS”), and requested to make a
post-employment deposit into the CSRDF. The OPM
denied the application and deposit request. Mr. Lledo
appealed to the Board, arguing that he was entitled to
CSRS benefits under 5 C.F.R. § 831.303(a) and “based
upon [his] non-deduction service ending involuntarily [on]
September 30, 1982.” Resp’t’s App. 20 (explanation at
section 25 of OPM form); see also Board Op. at 4–5.
The Board’s administrative judge affirmed OPM’s de-
nial, stating that “all of [Mr. Lledo’s] appointments with
the Navy, including his final position, were either not-to-
exceed (“NTE”) appointments or indefinite appointments
in the excepted service.” Board Op. at 2. The administra-
LLEDO v. OFFICE OF PERS. MGMT. 3
tive judge affirmed the OPM decision, stating that
“[w]hile [Mr. Lledo] has shown that he had sufficient
creditable federal service, he has failed to show that any
of that service was performed in a position covered under
the [Civil Service Retirement Act].” Board Op. at 6. This
initial decision became the Board’s final decision, and Mr.
Lledo appeals.
DISCUSSION
We review a decision of the Board to determine
whether it is “(1) arbitrary, capricious, an abuse of discre-
tion, 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); Whitmore v. Dep’t of Labor,
680 F.3d 1353, 1366 (Fed. Cir. 2012). Substantial evi-
dence is “such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion.” Simp-
son v. Office of Pers. Mgmt., 347 F.3d 1361, 1364 (Fed.
Cir. 2003) (quoting Consol. Edison Co. of N.Y. v. NLRB,
305 U.S. 197, 229 (1938)).
Pursuant to 5 U.S.C. § 8333(a)–(b), to qualify for a
CSRS retirement annuity, an employee must have per-
formed at least five years of creditable civilian service,
and must have served at least one of his last two years of
federal service in a covered position—i.e., service that is
subject to the Civil Service Retirement Act. Quiocson v.
Office of Pers. Mgmt., 490 F.3d 1358, 1360 (Fed. Cir.
2007); Casilang v. Office of Pers. Mgmt., 248 F.3d 1381,
1382 (Fed. Cir. 2001). While nearly all federal service is
creditable service, covered service is a narrower subset of
federal service. Rosete v. Office of Pers. Mgmt., 48 F.3d
514, 516 (Fed. Cir. 1995); see also Aquino v. Office of Pers.
Mgmt., 451 F. App’x 941, 942 (Fed. Cir. 2011). Tempo-
rary, intermittent, term, and excepted indefinite ap-
pointments are not covered positions. 5 C.F.R.
§ 831.201(a); Quiocson, 490 F.3d at 1360.
4 LLEDO v. OFFICE OF PERS. MGMT.
The Board found that Mr. Lledo’s employment was
creditable civilian service. Board Op. at 6. However, the
Board also found that Mr. Lledo did not ever serve in a
covered position, citing the requirement for covered
service in one of his last two years of federal service, that
is, during the period between November 13, 1989 and
November 13, 1991. See id. at 4. The Board specifically
observed that “all of [Mr. Lledo’s] appointments with the
Navy, including his final position, were either not-to-
exceed (‘NTE’) appointments or indefinite appointments
in the excepted service.” Id. at 2; see also id. at 5 (discuss-
ing how Mr. Lledo’s appointment forms supported this
conclusion). The Board further observed that the absence
of any appointment forms “indicating that [Mr. Lledo] was
in a covered position combined with the evidence that he
was not required to contribute to the [CSRD] Fund while
he was employed with the Federal government, and
evidence that he was provided severance pay at his resig-
nation” led the Board to conclude that Mr. Lledo was
never in a “covered position.” Board Op. at 5. Mr. Lledo
has not disputed these findings. See Resp’t’s App. 19
(indicating in section 6 of the OPM form that Mr. Lledo’s
appointment is “Excepted”). Because substantial evidence
supports the Board’s conclusion that Mr. Lledo’s service
was excluded from CSRDF coverage, the decision that Mr.
Lledo is not entitled to CSRS benefits is in accordance
with law. See Quiocson, 490 F.3d at 1360 (“Mr. Quioc-
son’s appointment forms indicate that his positions were
not covered by the CSRS and that no CSRS retirement
contributions were withheld from his pay. Mr. Quiocson
was covered by a different retirement system, the FEPI.
His receipt of benefits under a non-CSRS plan indicates
that his service was not covered under the CSRS.”);
Hocson v. Office of Pers. Mgmt., 662 F. App’x 922, 923
(Fed. Cir. 2016).
In this appeal, Mr. Lledo focuses on his service on and
before September 30, 1982, and the provisions of 5 C.F.R.
LLEDO v. OFFICE OF PERS. MGMT. 5
§ 831.303(a). This regulation permits an employee en-
gaged in creditable civilian service before October 1, 1982,
for which retirement deductions were not taken, to elect
to make a deposit according to 5 U.S.C. § 8334(c) or
otherwise have his annuity reduced. Mr. Lledo argues
that § 831.303(a) and its mention of an annuity means
that an employee engaged in creditable civilian service
prior to October 1, 1982 was deemed engaged in covered
service and eligible for CSRS benefits. It is not disputed
that Mr. Lledo was engaged in creditable civilian service
before October 1, 1982; he argues that § 831.303(a) con-
verted his creditable service into covered service despite
the exceptions to covered service stated in § 831.201(a).
In Rosimo v. Office of Personnel Management, 448 F.
App’x 60, 62 (Fed. Cir. 2011), this court discussed a simi-
lar situation:
Mr. Rosimo’s argument that 5 C.F.R. § 831.303(a)
allows him to convert his “creditable service” into
“covered service” is unavailing. Section
831.303(a), by its terms, only applies to “an em-
ployee,” and allows periods of “creditable civilian
service” to be “included in determining length of
service to compute annuity.” Section 831.303(a)
thus allows an employee who qualifies for an an-
nuity to include certain periods of creditable ser-
vice in the calculation. Mr. Rosimo, however,
lacks “covered service,” not “creditable service,” so
5 C.F.R. § 831.303(a) does not help him.
Similarly, in Fontilla v. Office of Personnel Management,
482 F. App’x 563, 565 (Fed. Cir. 2012), this court held:
5 C.F.R. § 831.303(a) allows those already covered
by the Act to include certain creditable service in
calculating the annuity. There is nothing in the
language of 5 C.F.R. § 831.303(a) to support the
argument that it retroactively converted “credita-
ble service” into “covered service” or changed who
6 LLEDO v. OFFICE OF PERS. MGMT.
qualified for an annuity. Section 831.303(a) . . .
cannot circumvent the covered service require-
ment of 5 U.S.C. § 8333(b). Because 5 C.F.R.
§ 831.303(a) is inapplicable to Fontilla, he cannot
rely on it either to deem his creditable service to
be covered service or to waive any deposit re-
quirement.
Mr. Lledo’s argument is similarly foreclosed, for
§ 831.303(a) does not alter the definition of covered ser-
vice, or convert creditable service into covered service.
See Dullas v. Office of Pers. Mgmt., 708 F. App’x 672, 674
(Fed. Cir. 2017); Hocson, 662 F. App’x at 924–25; Garcia
v. Office of Pers. Mgmt., 660 F. App’x 930, 931–32 (Fed.
Cir. 2016).
Mr. Lledo’s creditable service between 1968 and Sep-
tember 30, 1982 is also not the relevant time period for
the calculation of covered service, for the relevant period
under 5 U.S.C. § 8333(a)–(b) is the last two years of Mr.
Lledo’s employment. Section 831.303(a) does not change
the relevant time period during which Mr. Lledo needed
to have served in a “covered position” or the fact that Mr.
Lledo never served in a covered position during the criti-
cal time period to receive a CSRS retirement annuity.
CONCLUSION
We have considered all of Mr. Lledo’s arguments in
light of the applicable law. Since Mr. Lledo did not serve
in a “covered position” during the required time period,
the judgment of the Board must be affirmed.
AFFIRMED
COSTS
No costs.