Antes v. Office of Personnel Management , 466 F. App'x 883 ( 2012 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
__________________________
ANGEL V. ANTES,
Petitioner,
v.
OFFICE OF PERSONNEL MANAGEMENT,
Respondent.
__________________________
2011-3152
__________________________
Petition for review of the Merit Systems Protection
Board in case no. SF0831100717-I-1.
__________________________
Decided: January 18, 2012
__________________________
ANGEL V. ANTES, of Olongapo City, Philippines, pro se.
KIMBERLY I. KENNEDY, Trial Attorney, Civil Division,
United States Department of Justice, of Washington, DC,
for respondent. With her on the brief were TONY WEST,
Assistant Attorney General, JEANNE E. DAVIDSON, Direc-
tor, and FRANKLIN E. WHITE, JR., Assistant Director.
__________________________
2 ANTES v. OPM
Before LINN, PROST, and O’MALLEY, Circuit Judges.
PER CURIAM.
Angel V. Antes (“Antes”) appeals from a decision of
the Merit Systems Protection Board (“the Board”) affirm-
ing the decision of the Office of Personnel Management
(“the Office”) concluding that he was ineligible to receive
Civil Service Retirement System (“CSRS”) annuity bene-
fits and ineligible to make a deposit to the Civil Service
Disability and Retirement Fund (“CSRS Fund”). Antes v.
Office of Pers. Mgmt., No. SF-0831-10-0717-I-1 (M.S.P.B.
Sept. 17, 2010) (“Initial Decision”), reh’g denied, (M.S.P.B.
May 5, 2011) (“Final Order”). For the reasons explained
below, this court affirms.
BACKGROUND
Antes worked from March 1969 to July 1992 as a ci-
vilian employee for the Department of the Navy (“Navy”)
at Subic Bay, Philippines. Each of Antes’s appointments
during this time was either a temporary appointment or
an indefinite appointment in the excepted service. During
this time, Antes was not covered by the Civil Service
Retirement System, as reflected on the Standard Forms
50 of record indicating that his retirement plan was either
4 (None) or 5 (Other), as opposed to 1 (Civil Service).
Antes admits that his federal employment was not subject
to retirement deductions and that retirement deductions
were not withheld during his employment. When Antes
separated from federal employment in 1992, he was
informed that he was entitled to twenty four months of
severance pay based on his more than twenty three years
of creditable service.
In 1999, Antes requested a deferred CSRS annuity,
which was denied by the Office because it concluded that
Antes never served in a position subject to the CSRS. In
2008, Antes sought to make a deposit into the CSRS
Fund, under 5 U.S.C. § 8334(c), to cover the period of his
federal service and make up for retirement deductions
ANTES v. OPM 3
that the Navy had not taken from his salary during his
service. The Office denied Antes’s request because it
concluded that none of Antes’s previous appointments
were subject to the CSRS. Antes appealed to the Board,
which also concluded that Antes never served in a posi-
tion covered under the Civil Service Retirement System.
Initial Decision at 4-6. Antes then petitioned the full
Board, which denied his petition for rehearing. Final
Order at 1-5. Antes appealed to this court, which has
jurisdiction under 28 U.S.C. § 1295(a)(9).
DISCUSSION
This court must affirm the Board’s decision unless it
is “(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).
Antes argues on appeal that the Board erred in con-
cluding that he was ineligible to receive CSRS annuity
benefits and ineligible to make a deposit into the CSRS
Fund. Specifically, Antes contends that he is eligible to
receive benefits and make a contribution to the CSRS
Fund because he meets the definition of “employee” in 5
U.S.C. §§ 2105(a) and 8331(1)(A). Antes also argues that,
based on his years of creditable service and 5 C.F.R
§ 831.303, he should be permitted to make a deposit in the
CSRS Fund for his years of creditable service before 1982.
The government responds that 5 U.S.C. § 8333 makes
clear that one’s status as a federal employee, alone, is
insufficient to confer entitlement to CSRS annuity bene-
fits. The government responds that 5 C.F.R. § 831.112(a)
provides the proper definition of an employee who may
make a deposit to the CSRS Fund. Additionally, the
government contends that 5 C.F.R. § 831.303 applies only
to computations concerning the length of an individual’s
4 ANTES v. OPM
service and is irrelevant as to whether an individual is
covered under the CSRS.
This court agrees with the government. Section 8333
requires that, in order for an employee to be eligible for
annuity benefits under the CSRS, an employee must
complete five years of “creditable” service with at least
one of the last two years prior to separation being in a
position “covered” by the CSRS. Section 8334(c) further
provides that “[e]ach employee . . . credited with civilian
service . . . for which retirement deductions or deposits
have not been made, may deposit with interest an amount
equal to [a specified percentage] of his basic pay received
for that service.” The regulation associated with that
section defines employees able to make a deposit under
that section as (1) those currently employed in a position
subject to the CSRS or (2) those formerly employed “who
retain[] civil service retirement annuity rights based on a
separation from a position in which retirement deductions
were properly withheld and remain . . . in the [CSRS
Fund].” 5 C.F.R. § 831.112. This regulation “allows a
‘former employee’ to make a deposit only 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).
Antes does not contend that he is currently employed in a
position subject to the CSRS or that he has ever had
retirement deductions withheld under the CSRS. Thus,
Antes’s appeal turns on whether he has ever served in a
position subject to the CSRS.
Although Antes proved that he had more than twenty
years of creditable service as a federal employee, he has
failed to show that any of his appointments were covered
by the CSRS. The Board concluded, upon reviewing the
Standard Forms 50 of record, that none of Antes’s service
was covered service subject to the CSRS. Antes failed to
demonstrate how this finding is unsupported by substan-
tial evidence. Moreover, the Board noted that all of
Antes’s appointments were either temporary or indefinite.
ANTES v. OPM 5
Service rendered “exclusively under temporary and in-
definite appointments” is “excluded from CSRS retire-
ment coverage under OPM regulations.” Quiocson v.
Office of Pers. Mgmt., 490 F.3d 1358, 1360 (Fed. Cir.
2007). Again, Antes does not challenge this finding on
appeal. Finally, the Board, relying on the Standard
Forms 50 of record, noted that Antes was entitled to
twenty four months of severance pay for his twenty three
years, six months, and one day of service in accordance
with the Collective Bargaining Agreement/Filipino Em-
ployment Personnel Instruction (“FEPI”) and that this
provided additional support for the conclusion that his
service was not covered under the CSRS. Initial Decision
at 5-6. Antes 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.” Quiocson, 490 F.3d at 1360.
This court has considered Antes’s additional argu-
ments and concludes that they do not require a different
result. Because the Board’s finding that Antes never
served in a position covered under the CSRS was sup-
ported by substantial evidence and Antes has failed to
demonstrate any legal error in the Board’s decision, this
court affirms the Board’s conclusion that Antes is ineligi-
ble to receive CSRS annuity benefits or to make a deposit
into the CSRS Fund.
AFFIRMED
COSTS
Each party shall bear its own costs.