Hocson v. Office of Personnel Management , 662 F. App'x 922 ( 2016 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
ANTONIO S. HOCSON,
Petitioner
v.
OFFICE OF PERSONNEL MANAGEMENT,
Respondent
______________________
2016-1658
______________________
Petition for review of the Merit Systems Protection
Board in No. SF-0831-15-0462-I-1.
______________________
Decided: October 6, 2016
______________________
ANTONIO S. HOCSON, San Narciso, Philippines, pro se.
ERIC JOHN SINGLEY, Commercial Litigation Branch,
Civil Division, United States Department of Justice,
Washington, DC, for respondent. Also represented by
BENJAMIN C. MIZER, ROBERT E. KIRSCHMAN, JR., FRANKLIN
E. WHITE, JR.
______________________
Before NEWMAN, LOURIE, and CLEVENGER, Circuit Judges.
2 HOCSON v. OPM
NEWMAN, Circuit Judge.
Antonio S. Hocson appeals a decision of the Merit Sys-
tems Protection Board (“Board”) affirming the Office of
Personnel Management’s (“OPM”) denial of entitlement to
a deferred retirement annuity under the Civil Service
Retirement System (“CSRS”), as established by the Civil
Service Retirement Act (“CSRA”). The Board found that
Mr. Hocson never served in a position covered by the
CSRS. That finding is in accordance with law; the deci-
sion is affirmed.
BACKGROUND
Mr. Hocson worked for the Department of the Navy at
the Subic Bay Naval Base in the Philippines from 1976
until 1992 as a Machinist Intermediate and Machinist in
the excepted service prior to being terminated due to a
reduction in force. Mr. Hocson’s Record and Certification
of Employment (“transcript”) shows that the federal
service rendered prior to September 7, 1980, was non-
permanent with both appointments over this time period
including a “NTE” (not to exceed) date of expiration.
On September 7, 1980, Mr. Hocson’s position was re-
classified as an excepted service “indefinite” appointment.
Mr. Hocson served as a Machinist until separation on
June 16, 1992, due to a reduction-in-force termination.
The applicable SF-50 for this period listed his retirement
plan as “Other.” Both the SF-50 and the transcript reflect
that Mr. Hocson was not in a position covered by the
CSRA. There is no record that any of Mr. Hocson’s pay
was ever withheld or deposited into the CSRS fund, and
Mr. Hocson does not state otherwise. Further, the SF-50
documenting Mr. Hocson’s separation indicates an enti-
tlement to severance “in accordance with FEPI,” indicat-
ing a plan other than the CSRA.
In 2013, Mr. Hocson filed an application for an annui-
ty under the CSRS. OPM denied the application because
he “never served in a position subject to the Civil Service
HOCSON v. OPM 3
Retirement Act.” J.A. 46. Mr. Hocson requested recon-
sideration, and on February 9, 2015, OPM issued its final
decision denying entitlement to an annuity, stating that
Mr. Hocson did not have the minimum of five years of
creditable service nor one year of covered service within
the two years before his separation. J.A. 26.
Mr. Hocson appealed to the Board. The Board af-
firmed the denial, stating that Mr. Hocson did not serve
in a position covered by the CSRA during one of his last
two years of employment, as required by 5 U.S.C.
§§ 8333(a)–(b). The Board observed that Mr. Hocson’s
appointments were either excepted service indefinite or
temporary, which are not covered by the CSRA. Mr.
Hocson appeals.
DISCUSSION
To be eligible for a retirement annuity, an employee
must have completed at least five years of “creditable
service.” 5 U.S.C. §§ 8333(a)–(b). In addition, at least one
of the final two years of employment prior to separation
must have been “covered” service, that is, “creditable
civilian service during which he is subject to the [CSRA].”
5 U.S.C. § 8333(b). Temporary, intermittent, term, and
excepted indefinite appointments are excluded from
CSRA coverage. 5 C.F.R. § 831.201(a); Quiocson v. Office
of Pers. Mgmt., 490 F.3d 1358, 1360 (Fed. Cir. 2007).
5 U.S.C. § 8334(c) permits an “employee . . . credited
with civilian service . . . for which retirement deductions
have not been made” under the CSRS to make a deposit
with interest to the CSRS and receive an annuity. Mr.
Hocson argues that certain changes in the law converted
his creditable excluded position into a covered position
within the CSRA.
The issue relates to the applicability of 5 C.F.R. §
831.112, which defines an “employee” eligible to make a
deposit or receive an annuity as:
4 HOCSON v. OPM
(1) A person currently employed in a position sub-
ject to the civil service retirement law; or
(2) A former employee . . . who retains civil service
retirement annuity rights based on a separation
from a position in which retirement deductions
were properly withheld and remain . . . in the Civ-
il Service Retirement and Disability Fund.
Mr. Hocson argues that this regulatory provision does not
apply to him because annuities for creditable service prior
to 1982 are governed solely by 5 C.F.R. § 831.303(a),
which states:
Periods of creditable civilian service performed by
an employee or Member after July 31, 1920, but
before October 1, 1982, for which retirement de-
ductions have not been taken shall be included in
determining length of service to compute annui-
ty . . . ; however, if the employee, Member, or sur-
vivor does not elect either to complete the deposit
described by section 8334(c) of title 5, United
States Code, or to eliminate the service from an-
nuity 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.
Mr. Hocson states that this provision retroactively con-
verted all periods of “creditable” federal employment prior
to October 1, 1982 to “covered” service under the CSRA.
Mr. Hocson also argues that under § 831.303(a), he is
entitled to a reduced annuity for his federal service be-
tween July 1, 1976 and September 30, 1982.
This court has previously considered the issue, and
concluded that statutory entitlement does not arise on
either of these theories. See, e.g., Dela Rosa v. Office of
Pers. Mgmt., 583 F.3d 762, 765 (Fed. Cir. 2009) (holding
that § 831.112(a)(2) “allows a ‘former employee’ to make a
deposit only if that former employee is already covered by
HOCSON v. OPM 5
the CSRS”); id. at 764 (agreeing that § 8334(c) does not
allow a former employee to “convert [creditable] service
into covered service and thereby establish eligibility for a
CSRS retirement annuity”); Herrera v. U.S., 849 F.2d
1416, 1417 (Fed. Cir. 1988) (“temporary, indefinite ap-
pointments” were not “covered service”); see also Fontilla
v. Office of Pers. Mgmt., 482 F. App’x 563, 565 (Fed. Cir.
2012) (“Section 831.303(a) does not supplant § 831.112
and cannot circumvent the covered service requirement of
5 U.S.C. § 8333(b).”).
There is no statutory support for Mr. Hocson’s argu-
ments that § 831.303(a) retroactively converted creditable
service into covered service or otherwise changed who
qualified for an annuity. Prior to 1982, Mr. Hocson
served in temporary and excepted service indefinite
positions that clearly were excluded from the CSRS.
Although Mr. Hocson had more than five years of credita-
ble service as an employee, section 831.303(a) did not
convert creditable excluded positions into CSRA covered
service. Section 831.303(a) does not supplant the covered
service requirements of § 831.112(a)(2) and 5 U.S.C. §
8333(b). The only effect of § 831.303(a) is to permit per-
sons already covered by the CSRS to include certain
service when calculating the annuity. We discern no error
in the Board’s determination that Mr. Hocson had not
served in a position covered by the CSRS.
We have considered Mr. Hocson’s additional argu-
ments relating to his participation in a different retire-
ment system under a collective bargaining agreement,
and conclude that they do not affect this result.
The decision of the Board is affirmed.
AFFIRMED
No costs.