NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
PRECIOSO A. CRISTOBAL,
Petitioner
v.
OFFICE OF PERSONNEL MANAGEMENT,
Respondent
______________________
2018-1429
______________________
Petition for review of the Merit Systems Protection
Board in No. SF-0831-17-0618-I-1.
______________________
Decided: August 9, 2018
______________________
PRECIOSO A. CRISTOBAL, Palauig, Zambales, Philip-
pines, pro se.
MICHAEL DUANE AUSTIN, Commercial Litigation
Branch, Civil Division, United States Department of
Justice, Washington, DC, for respondent. Also represent-
ed by DEBORAH ANN BYNUM, ROBERT EDWARD KIRSCHMAN,
JR., CHAD A. READLER.
______________________
2 CRISTOBAL v. OPM
Before PROST, Chief Judge, LOURIE and CHEN, Circuit
Judges.
PER CURIAM.
Precioso A. Cristobal (“Cristobal”) appeals from the
final decision of the Merit Systems Protection Board (“the
Board”) affirming the decision of the Office of Personnel
Management (“OPM”) denying his request for annuity
benefits for his prior federal service under the Civil Ser-
vice Retirement System (“CSRS”). See Cristobal v. Office
of Pers. Mgmt., No. SF-0831-17-0618-I-1, 2017 MSPB
LEXIS 4767, at *9–10 (M.S.P.B. Nov. 9, 2017) (“Deci-
sion”). For the reasons that follow, we affirm.
BACKGROUND
Cristobal worked as a Forklift Operator at Subic Bay,
Philippines from October 20, 1975 until about March 24,
1982, when he was appointed to the position of Rigger, a
position he held until his retirement on May 29, 1992.
Throughout his continuous employment, Cristobal’s
appointment forms (SF-50) indicated his retirement code
as “4-None” or “5-Other” and his annuitant indicator as “9
Not Applicable.” Cristobal admitted that no deductions
were ever withheld from his pay for the CSRS. His SF-50
papers also show that upon retirement, he was paid a
severance under the authority of the Filipino Employment
Personnel Instructions (“FEPI”) and that he was “entitled
to 17 months severance pay based on 16 years, 08 months
and 29 days creditable service.” Decision, 2017 MSPB
LEXIS 4767, at *2 (citation omitted).
On December 1, 2016, Cristobal applied for deferred
retirement under the CSRS seeking an annuity for the
period of service from October 20, 1975 to September 30,
1982. See id. at *3 (noting that there is a typographical
error in his request for “October 10, 1975” instead of
“October 20, 1975,” which was his first date of service).
On June 23, 2017, OPM denied his request determining
CRISTOBAL v. OPM 3
that Cristobal was not entitled to an annuity under the
CSRS because “none of [his] service was covered service.”
Resp’t’s App. (“R.A.”) 15. Cristobal appealed OPM’s
decision to the Board.
In an initial decision, the administrative judge (“AJ”)
determined that Cristobal’s positions were not covered
positions that would make him eligible for the CSRS. See
Decision, 2017 MSPB LEXIS 4767, at *3–6. The AJ also
determined that Cristobal was not entitled to make
retroactive deposits for his service because this still
required that he be eligible for the CSRS in the first place.
See id. at *6–7. Finally, the AJ determined that the
retirement pay Cristobal received under the FEPI indi-
cates that he was covered under a retirement system
other than the CSRS, which is evidence that he was not in
covered service. See id. at *8–9. Based on this, the AJ
concluded that Cristobal was not eligible for an annuity
under the CSRS. See id. at *9–10. Cristobal did not
request Board review of the initial decision, and thus the
initial decision became the final decision of the Board on
December 14, 2017. Id. at *10.
Cristobal appealed. We have jurisdiction pursuant to
28 U.S.C. § 1295(a)(9).
DISCUSSION
We must affirm the Board’s decision unless we find it
to be “(1) arbitrary, capricious, an abuse of discretion, or
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). The petitioner has the burden
of proof of establishing entitlement to the benefit he seeks
by a preponderance of the evidence. See
5 C.F.R.
§ 1201.56(b)(2); Cheeseman v. Office of Pers. Mgmt.,
791
F.2d 138, 141 (Fed. Cir. 1986).
4 CRISTOBAL v. OPM
Cristobal argues that the AJ incorrectly interpreted
5
C.F.R. § 831.303(a), which, according to him, only re-
quires creditable civilian service and not “covered ser-
vice,” and that therefore he has met the requirements for
a CSRS annuity. See Pet’r’s Br. 1–7, 26–27. Additionally,
he contends that there is no statutory or regulatory
provision “excluding temporary or indefinite employees”
from CSRS retirement benefits.
Id. at 19.
The government responds that the AJ correctly found
that Cristobal did not serve in a covered position. Accord-
ingly, the government argues that the AJ properly af-
firmed OPM’s decision that Cristobal was not entitled to a
civil service retirement and was ineligible to make a
deposit to the CSRS to obtain service credit. See Resp’t’s
Br. 3.
We agree with the government that the AJ did not err
in affirming the denial of Cristobal’s request for retire-
ment benefits. To be eligible for a CSRS annuity, an
employee must complete five years of civilian service and
at least one of the last two years of that service must be
“covered” service, i.e., service that is subject to the Civil
Service Retirement Act (“CSRA”). See
5 U.S.C. § 8333;
Rosete v. Office of Pers. Mgmt.,
48 F.3d 514, 516 (Fed. Cir.
1995). “[M]ost service as an employee of the federal
government is creditable service,” but “service that is
creditable service is not necessarily covered service.”
Herrera v. United States,
849 F.2d 1416, 1417 (Fed. Cir.
1988). Additionally, service under temporary and indefi-
nite appointments is “excluded from CSRS retirement
coverage under OPM regulations,” and is not considered a
covered position. Quiocson v. Office of Pers. Mgmt.,
490
F.3d 1358, 1360 (Fed. Cir. 2007) (citing
5 C.F.R.
§ 831.201(a)(13)); see also Rosete,
48 F.3d at 519. As the
AJ determined, Cristobal’s federal service was a nonper-
manent, indefinite appointment, which is excluded from
CSRA coverage. See Decision, 2017 MSPB LEXIS 4767,
at *3–6. Thus, the AJ properly determined that Cristobal
CRISTOBAL v. OPM 5
is not eligible for a CSRS annuity because his appoint-
ment was not covered service.
Cristobal also argues that the reduced annuity provi-
sion in
5 C.F.R. § 831.303(a) excuses his lack of deposits
into the CSRS subject to a 10 percent reduction in his
annuity. See Pet’r’s Br. 7–19, 24–25. The government
responds that § 831.303(a) still requires that the individ-
ual have served in a covered position, and because Cristo-
bal did not, § 831.303(a) does not apply to his situation.
We agree with the government that § 831.303(a) does not
apply here.
Under the CSRA, the “employing agency shall deduct
and withhold” a percentage of “the basic pay of an em-
ployee.”
5 U.S.C. § 8334(a)(1)(A). The regulations do
excuse a failure to make deposits into the CSRS, but only
subject to a deduction in the annuity. See
5 C.F.R.
§ 831.303(a) (“Periods of creditable civilian service . . . for
which retirement deductions have not been taken shall be
included in determining length of service to compute
annuity under [the CSRA]; however, if the employee . . .
does not elect either to complete the deposit . . . or to
eliminate the service from annuity 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.” (emphasis added)). In addition,
a prerequisite to § 831.303(a) is that the individual must
have served in a covered position, which Cristobal did not.
See Lledo v. Office of Pers. Mgmt.,
886 F.3d 1211, 1214
(Fed. Cir. 2018) (concluding that Ҥ 831.303(a) does not
alter the definition of covered service, or convert credita-
ble service into covered service”) (citations omitted); see
also Rosimo v. Office of Pers. Mgmt., 448 F. App’x 60, 62
(Fed. Cir. 2011) (stating that § 831.303(a) does not apply
to someone who lacks “covered service”). Thus, the AJ did
not err in determining that § 831.303(a) does not apply to
Cristobal’s situation.
6 CRISTOBAL v. OPM
Cristobal next argues that he should automatically
qualify for CSRS annuities simply because he is an “em-
ployee.” See Pet’r’s Br. 21–22. The government argues,
and we agree, that Cristobal has not cited a provision of
the CSRA that expressly provides for automatic coverage
of all existing employees. See Resp’t’s Br. 10. Instead, as
the AJ determined, see Decision, 2017 MSPB LEXIS 4767,
at *6–8, the CSRA makes clear that the eligibility of
federal employees for CSRS benefits is conditioned upon
the employee’s completion of services covered under the
CSRA, see
5 U.S.C. § 8333. Moreover, Cristobal received
retirement benefits under the FEPI, and “[e]mployees
subject to another retirement system . . . are excluded
from coverage under the CSRA.” Ragados v. Office of
Pers. Mgmt., 180 F. App’x 917, 919–20 (Fed. Cir. 2006)
(citing
5 U.S.C. § 8331(1)(ii) (stating that the definition
for “‘employee’ . . . does not include . . . an employee
subject to another retirement system for Government
employees”)). Accordingly, we conclude that the AJ did
not err in affirming OPM’s decision to deny Cristobal’s
request for retirement benefits under the CSRS.
We have considered Cristobal’s remaining arguments
but find them unpersuasive.
CONCLUSION
For the foregoing reasons, we affirm the Board’s deci-
sion.
AFFIRMED
COSTS
No costs.
