NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
JAIME VILLARUEL,
Petitioner
v.
OFFICE OF PERSONNEL MANAGEMENT,
Respondent
______________________
2018-1199
______________________
Petition for review of the Merit Systems Protection
Board in No. SF-0831-17-0457-I-1.
______________________
Decided: September 7, 2018
______________________
JAIME VILLARUEL, San Juan San Narciso, Zambales,
Philippines, pro se.
KELLY A. KRYSTYNIAK, Commercial Litigation Branch,
Civil Division, United States Department of Justice,
Washington, DC, for respondent. Also represented by
DEBORAH ANN BYNUM, ROBERT EDWARD KIRSCHMAN, JR.,
CHAD A. READLER.
______________________
Before DYK, WALLACH, and HUGHES, Circuit Judges.
2 VILLARUEL v. OPM
PER CURIAM.
Jaime Villaruel petitions for review of a final decision
of the Merit Systems Protection Board (“Board”). The
Board sustained the Office of Personnel Management’s
(“OPM”) denial of Mr. Villaruel’s application for an annui-
ty under the Civil Service Retirement System (“CSRS”).
We affirm.
BACKGROUND
Mr. Villaruel was employed as a painter for the U.S.
Naval Ship Repair Facility in Subic Bay, Philippines from
April 10, 1969, to November 8, 1969, and then from
January 11, 1971, through March 21, 1992. His employ-
ment in 1969 was a temporary part-time excepted ap-
pointment; from January 11, 1971, to June 26, 1976, it
was a term excepted appointment; and from June 27,
1976, through March 21, 1992, it was a continuous and
indefinite excepted appointment. The only appointment
form (SF-50) in Mr. Villaruel’s record indicates his re-
tirement code as “4-None.”
On September 3, 2016, Mr. Villaruel filed an applica-
tion for deferred retirement under the CSRS seeking an
annuity for his civilian service from April 10, 1969,
through March 21, 1992. On February 1, 2017, OPM
denied his request, determining that Mr. Villaruel was
not entitled to an annuity because “none of [his] service
was covered service” under the Civil Service Retirement
Act (“CSRA”). App’x 19.
Mr. Villaruel appealed OPM’s decision to the Board. A
Board Administrative Judge (“AJ”) affirmed the denial,
concluding that none of Mr. Villaruel’s service constituted
“covered service” under the CSRA and that
5 C.F.R.
§ 831.303(a) did not otherwise entitle him to an annuity
for his “creditable service.” Mr. Villaruel did not request
full Board review of the AJ’s decision, and thus the initial
decision became the final decision of the Board.
VILLARUEL v. OPM 3
Mr. Villaruel seeks review in this court. We have ju-
risdiction pursuant to
5 U.S.C. § 7703(b)(1) and
28 U.S.C.
§ 1295(a)(9).
DISCUSSION
The scope of this court’s review of a Board decision is
limited. We only set aside the Board’s decision if it was
“(1) arbitrary, capricious, an abuse of discretion, or other-
wise not in accordance with law; (2) obtained without
procedures required by law, rule, or regulation having
been followed; or (3) unsupported by substantial evi-
dence.”
5 U.S.C. § 7703(c). An individual who applies to
OPM for retirement benefits must prove entitlement to
the benefits by a preponderance of the evidence. 5 C.F.R.
1201.56(b)(2)(ii).
“To qualify for a civil service retirement annuity, a
government employee ordinarily must complete at least
five years of creditable service, and at least one of the two
years prior to separation must be ‘covered service,’ i.e.,
service that is subject to the [CSRA].” Quiocson v. Office of
Pers. Mgmt.,
490 F.3d 1358, 1360 (Fed. Cir. 2007);
5 U.S.C. § 8333(a)–(b). Although nearly all federal service
is “creditable service,” it has long been established that
temporary, term, and indefinite excepted appointments
are not “covered service.” See Rosete v. Office of Pers.
Mgmt.,
48 F.3d 514, 518–19 (Fed. Cir. 1995) (interpreting
5 C.F.R. § 831.201(a)). Although Rosete did not address
the regulation on which Mr. Villaruel relies (
5 C.F.R.
§ 831.303(a)), this court has since held that § 831.303(a)
did not “alter the definition of covered service, or convert
creditable service into covered service.” Lledo v. Office of
Pers. Mgmt.,
886 F.3d 1211, 1213–14 (Fed. Cir. 2018). 1
1 Before Lledo, numerous non-precedential deci-
sions of this court similarly held that
5 C.F.R.
§ 831.303(a) does not change the requirements for estab-
4 VILLARUEL v. OPM
Instead, the regulation merely “allows those already
covered by the [CSRA] to include certain creditable service
in calculating the[ir] annuity.”
Id. at 1214 (citation omit-
ted).
Mr. Villaruel only served in temporary, term, and in-
definite excepted appointments during his civilian service
(1969 to 1992). Even if his service constituted “creditable
service,” the Board properly determined that none of his
service constituted “covered service.” Because Mr. Villa-
ruel failed to establish that he performed “covered ser-
vice” during his employment, particularly during one of
the last two years preceding his separation in 1992, and
because § 831.303(a) is not a basis for coverage under the
CSRA, Mr. Villaruel is not entitled to a CSRS retirement
annuity. See Lledo, 886 F.3d at 1214;
5 U.S.C. § 8333(b).
We have considered Mr. Villaruel’s additional argu-
ments and find them similarly without merit.
AFFIRMED
COSTS
No costs.
lishing coverage under the CSRA. See e.g., Dullas v. Office
of Pers. Mgmt., 708 F. App’x 672, 674 (Fed. Cir. 2017);
Hocson v. Office of Pers. Mgmt., 662 F. App’x 922, 924–25
(Fed. Cir. 2016); Garcia v. Office of Pers. Mgmt., 660 F.
App’x 930, 932 (Fed. Cir. 2016); Dominico v. Office of Pers.
Mgmt., 626 F. App’x 270, 272–73 (Fed. Cir. 2015); Orcino
v. Office of Pers. Mgmt., 482 F. App’x 586, 588 (Fed. Cir.
2012); Fontilla v. Office of Pers. Mgmt., 482 F. App’x 563,
565 (Fed. Cir. 2012); Aquino v. Office of Pers. Mgmt., 451
F. App’x 941, 944 (Fed. Cir. 2011); Rosimo v. Office of
Pers. Mgmt., 448 F. App’x 60, 62 (Fed. Cir. 2011).
