Mata v. Opm , 652 F. App'x 931 ( 2016 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
ROBERTO A. MATA,
Petitioner
v.
OFFICE OF PERSONNEL MANAGEMENT,
Respondent
______________________
2016-1244
______________________
Petition for review of the Merit Systems Protection
Board in No. SF-0831-15-0397-I-1.
______________________
Decided: June 13, 2016
______________________
ROBERTO A. MATA, San Narciso, Zambales, Philippi-
nes, pro se.
MICHAEL DUANE AUSTIN, Commercial Litigation
Branch, Civil Division, United States Department of
Justice, Washington, DC, for respondent. Also represent-
ed by BENJAMIN C. MIZER, ROBERT E. KIRSHMAN, JR.,
CLAUDIA BURKE.
______________________
Before DYK, PLAGER, and REYNA, Circuit Judges.
2 MATA v. OPM
PER CURIAM.
Roberto A. Mata appeals pro se a final order of the
Merit Systems Protection Board (“Board”) affirming the
Office of Personnel Management’s (“OPM”) denial of
entitlement to an annuity under the Civil Service Retire-
ment System (“CSRS”). We conclude that substantial
evidence supports the Board’s determination that Mr.
Mata did not serve in a covered position for purposes of
entitlement to a civil-service-retirement annuity under
the CSRS. We affirm the Board’s final order denying
entitlement to an annuity under the CSRS.
BACKGROUND
Mr. Mata worked as a planner and estimator with the
Department of the Navy from 1968 until 1992. His ser-
vice was continuous for over two decades until his invol-
untary separation in 1992. As a non-citizen, Mr. Mata
received several Standard Forms 50 for the CSRS, indi-
cating each time that his retirement code was either
“None” or “Other,” as opposed to “Civil Service.” J.A. 7,
17–39. Upon involuntary separation, the Standard Form
50 effectuating separation stated that he was “entitled to
24 months severance pay based on 24 years, and 4 days
[of] creditable service.” J.A. 41. The Standard Forms 50
made no mention of any entitlement to CSRS benefits.
In July 2013, Mr. Mata submitted an application to
OPM, seeking annuity benefits under the CSRS for his
federal service. On December 6, 2013, OPM denied Mr.
Mata’s application because he “never in served in a posi-
tion subject to the [CSRS].” J.A. 44. Mr. Mata requested
reconsideration, and on February 9, 2015, OPM issued its
final decision denying entitlement to an annuity because
Mr. Mata did not have the minimum years of covered
service. J.A. 48. Mr. Mata appealed the final decision to
the Board. On September 21, 2015, the Board issued a
final order denying entitlement to an annuity under the
CSRS.
MATA v. OPM 3
Mr. Mata appeals. We have jurisdiction under
28 U.S.C. § 1295(a)(9).
DISCUSSION
We may hold unlawful and set aside an agency action
found to be “(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).
Mr. Mata argues that his lengthy federal service
“vested” his eligibility rights in a retirement annuity
under the CSRS. Pet’r’s Informal Br. at 8. Citing Herrera
v. United States, 849 F.2d 1416 (Fed. Cir. 1988), Mr. Mata
seeks to receive a reduced CSRS annuity and receive 10%
of the amount he “should have deposited, plus interest”
during his service. Id. at 2, 4, 9. Mr. Mata contends that
his service is creditable, and that certain changes in the
law during his service converted his position into a cov-
ered position. Id. at 9, 14. Mr. Mata maintains that the
deposit to which he seeks entitlement from past service is
“self-executing” and arises whenever a federal employee
decides to not make a deposit. Id. at 3. Mr. Mata also
requests that we reject the reasoning from or overrule
several past cases. See, e.g., Aquino v. Office of Pers.
Mgmt., 451 F. App’x 941 (Fed. Cir. 2011); Ragados v.
Office of Pers. Mgmt., 180 F. App’x 917 (Fed. Cir. 2006);
De Guzman v. Dep’t of Navy, 231 Ct. Cl. 1005 (1982). We
discern nothing arbitrary, capricious, or otherwise errone-
ous with the Board’s final order.
A federal employee seeking retirement benefits must
demonstrate by preponderant evidence that he or she is
entitled to the benefits. 5 C.F.R. § 1201.56(a)(2);
Cheeseman v. Office of Pers. Mgmt., 791 F.2d 138, 141
(Fed. Cir. 1986). An employee becomes eligible for annui-
ty benefits under the CSRS by completing five years of
“creditable” service with at least one of the last two years
4 MATA v. OPM
prior to separation in a position “covered” by the CSRS.
5 U.S.C. § 8333(a)–(b). An employee credited with civil
service who has not made CSRS retirement deductions
may make a deposit with interest to the CSRS. See §
8333(c). The relevant regulation defines employees able
to make a deposit as (1) those currently employed in a
position subject to the CSRS or (2) those formerly em-
ployed “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(a). In other
words, the 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). Mr. Mata 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.
Although Mr. Mata proved that he had more than
twenty years of service as an employee, he has failed to
show that he served in a position covered by the CSRS.
Mr. Mata’s Standard Forms 50 show that he was appoint-
ed as a non-citizen who “may be recruited overseas and
appointed to overseas positions without regard to the
Civil Service Act.” 5 C.F.R. § 8.3. His Standard Forms 50
only indicated “None” or “Other,” and he offers no evi-
dence that the forms contained errors or were otherwise
incomplete. The record evidence shows that Mr. Mata
was not in a covered position when the civil-service-
retirement statute was enacted or when the regulations
were promulgated, nor did he later attain such a covered
position. J.A. 17–41. Mr. Mata fails to demonstrate how
changes in the law affected him relevant to this appeal.
Although Mr. Mata may have been entitled to certain
benefits as a result of his involuntary separation, entitle-
ment to those benefits does not vest entitlements under
the CSRS or “convert a non-covered position into a cov-
MATA v. OPM 5
ered position.” Quiocson v. Office of Pers. Mgmt., 490 F.3d
1358, 1360 (Fed. Cir. 2007) (“His receipt of benefits under
a non-CSRS plan indicates that his service was not cov-
ered under the CSRS.”).
The Board concluded, upon reviewing the Standard
Forms 50 of record, that none of Mr. Mata’s service was
covered service subject to the CSRS. Mr. Mata fails to
demonstrate how this finding is unsupported by substan-
tial evidence. This outcome is consistent with Herrera,
the case Mr. Mata cites for support. See Herrera, 849
F.2d at 1418 (holding that “the record before us establish-
es that his service does not meet” the statutory require-
ments for a deferred annuity). We decline to revisit or
reconsider the precedent cited in Mr. Mata’s informal
brief because Mr. Mata fails to explain why those deci-
sions were incorrectly decided or how those decisions are
enabled for review by this panel without en banc consid-
eration.
The Board’s final order is supported by substantial ev-
idence, not arbitrary or capricious, and in accordance with
law. We affirm the Board’s final order.
AFFIRMED
COSTS
No costs.