Calilong v. Office of Personnel Management ( 2013 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
NEPOMOCINO CALILONG,
Petitioner,
v.
OFFICE OF PERSONNEL MANAGEMENT,
Respondent.
______________________
2012-3181
______________________
Petition for review of the Merit Systems Protection
Board in No. SF0831110645-I-1.
______________________
Decided: July 12, 2013
______________________
NEPOMOCINO CALILONG, of Zambales, Philippines, pro
se.
DEVIN A. WOLAK, Trial Attorney, Commercial Litiga-
tion Branch, Civil Division, United States Department of
Justice, of Washington, DC, for respondent. With him on
the brief were STUART F. DELERY, Principal Deputy Assis-
tant Attorney General, JEANNE E. DAVIDSON, Director,
and DEBORAH A. BYNUM, Assistant Director.
______________________
2 CALILONG v. OPM
Before NEWMAN, LOURIE, and TARANTO, Circuit Judg-
es.
PER CURIAM.
Nepomocino Calilong appeals from the final order of
the Merit Systems Protection Board (the “Board”) affirm-
ing the decision by the Office of Personnel Management
(“OPM”) that he was not eligible to make a deposit to the
Civil Service Retirement and Disability Fund (the
“Fund”). See Calilong v. Office of Pers. Mgmt., No. SF-
0831-11-0645-I-1 (M.S.P.B. Oct. 3, 2011) (“Initial Deci-
sion”); (M.S.P.B. June 25, 2012) (“Final Order”). Because
the Board’s decision was supported by substantial evi-
dence and is in accordance with law, we affirm.
BACKGROUND
Calilong worked for the U.S. Department of the Navy
from 1967 to 1973, first as an aircraft cleaner at the U.S.
Naval Air Station at Cubi Point, Philippines, then as a
packing worker at the U.S. Naval Supply Depot at Subic
Bay, Philippines.
In May 2008, Calilong filed an application to make a
deposit into the Fund. Resp’t’s App. at 5. In October
2008, after searching its files and finding no records of
Calilong’s service, OPM concluded that any position that
Calilong may have held was not one that was subject to
the Civil Service Retirement Act (“CSRA”); it therefore
issued an initial decision denying his application on the
ground that he was not employed in a position subject to
Federal retirement deductions and was not otherwise
entitled to an annuity. Id. at 12.
Calilong requested reconsideration of OPM’s determi-
nation, id. at 13, and in January 2011, OPM issued an-
other decision finding that Calilong was not eligible to
contribute to the Fund, id. at 20. OPM explained that,
according to Calilong’s U.S. Civil Service Commission
Standard Form-50s (“SF-50”), id. at 33–35, Calilong’s
employment with the Navy was not subject to the CSRA
CALILONG v. OPM 3
because the positions he held were excepted indefinite
appointments and accordingly no contributions to the
Civil Service Retirement System (“CSRS”) had been
deducted from his pay, id. at 20–22.
Calilong then appealed to the Board, and the adminis-
trative judge (the “AJ”) issued an initial decision affirm-
ing OPM’s reconsideration decision. Initial Decision at 4.
The AJ found that the notations on all of Calilong’s SF-
50s, which stated that his retirement coverage was “none”
or “other,” supported OPM’s conclusion that Calilong was
employed in a position excluded from CSRA coverage and
that Calilong did not allege that any retirement contribu-
tions were ever withheld from his pay during Federal
service. Id. at 3.
On review, the full Board issued a final order affirm-
ing the AJ’s initial decision. Final Order at 3. The Board
specifically noted that 5 C.F.R. § 831.303(a) provides only
for the way creditable service—not covered service—is to
be determined and factored into annuity calculations; it
did not change the result of this case because it is inappli-
cable to petitioners like Calilong who have never been
employed subject to the CSRA. Id. at 2.
Calilong appealed to this court. We have jurisdiction
pursuant to 28 U.S.C. § 1295(a)(9).
DISCUSSION
The scope of our review in an appeal from a Board de-
cision is limited. We can only set aside the Board’s deci-
sion if it was “(1) arbitrary, capricious, an abuse of
discretion, 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); see Briggs v.
Merit Sys. Prot. Bd., 331 F.3d 1307, 1311 (Fed. Cir. 2003).
Moreover, we are limited to review of the administrative
record. Rockwell v. Dep’t of Transp., 789 F.2d 908, 913
(Fed. Cir. 1986). The Board’s decision is supported by
substantial evidence “if it is supported by such relevant
4 CALILONG v. OPM
evidence as a reasonable mind might accept as adequate
to support a conclusion.” Brewer v. U.S. Postal Serv., 647
F.2d 1093, 1096 (Ct. Cl. 1981) (internal quotation marks
omitted).
In order to qualify for a civil service retirement annui-
ty, a government employee ordinarily must complete five
years of creditable service, at least one of the two years
prior to separation being “covered service,” i.e., service
that is subject to the CSRA. See 5 U.S.C. § 8333; Qui-
oscon v. Office of Pers. Mgmt., 490 F.3d 1358, 1360 (Fed.
Cir. 2007).
Pursuant to 5 U.S.C. § 8347(g), agencies are author-
ized to exclude various types of civil service positions from
CSRA coverage. Accordingly, OPM has promulgated a
regulation that excludes nonpermanent, indefinite ap-
pointments from CSRS retirement coverage. 5 C.F.R.
§ 831.201(a)(13). See also Rosete v. Office of Pers. Mgmt.,
48 F.3d 514, 519 (Fed. Cir. 1995) (upholding OPM’s
exclusion of indefinite appointments).
It is undisputed that Calilong was not employed by
the government at the time of his application. His only
recourse, therefore, was to demonstrate that his past
employment constituted covered service and that he had
held a covered position for at least two years. Calilong
did not meet this burden because his former positions
with the Navy were indefinite, excepted-service positions,
which are excluded from CSRA coverage.
Calilong concedes that the “period of appointments
and positions were not . . . subjected to deductions and
withholding from my basic pay [as] required under 5
U.S.C. Section 8334(a).” Pet’r’s Informal Br. 2. Calilong
nevertheless contends that the Board erred by allegedly
failing to properly consider the effect on his claim of the
accounting rules for creditable service delineated in 5
C.F.R. § 831.303(a). He argues that the regulation pro-
vides that his employment with the Navy constituted
creditable service and that he is therefore eligible to make
CALILONG v. OPM 5
a deposit toward, and then receive, a CSRS retirement
annuity under 5 U.S.C. § 8334(c). He asserts that such
deposit would overcome the problem that no CSRS deduc-
tions were withheld from his pay. Id. at 2, 9–13.
Calilong’s argument fails because it disregards the
first step of the inquiry, viz., whether his Federal service
was covered by the CSRA. Such coverage is essential.
The absence of deductions is an indication that an em-
ployee was not serving in a covered position and, a retro-
active deposit does not convert a non-covered position into
a covered position. Quiocson, 490 F.3d at 1360. In any
event, no evidence at all supports Calilong’s argument
that he occupied a covered position. Furthermore, while §
8334 “gives current and former federal employees who
have eligible CSRS service the right to make a deposit for
service for which deductions or deposits have not been
made, it does not, however, allow someone with no eligible
CSRS service to make a CSRS deposit.” Esposo v. Office
of Pers. Mgmt., 321 F. App’x 961, 963 (Fed. Cir. 2009).
Thus, Calilong cannot claim the right to deposit into
the Fund absent proof that he was eligible to avail himself
of that process. We therefore conclude that the Board did
not err in holding that Calilong was not entitled to a
CSRS retirement annuity because the Board’s finding
that he never served in a covered position was supported
by substantial evidence.
We have considered Calilong’s remaining arguments
and conclude that they are without merit. For the forego-
ing reasons, the decision of the Board is affirmed.
AFFIRMED
COSTS
No costs.