Punongbayan v. Office of Personnel Management , 449 F. App'x 919 ( 2011 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
__________________________
JULIAN E. PUNONGBAYAN,
Petitioner,
v.
OFFICE OF PERSONNEL MANAGEMENT,
Respondent.
__________________________
2011-3136
__________________________
Petition for review of the Merit Systems Protection
Board in consolidated case nos. SF0831100634-I-1 and
SF0831100635-I-1.
__________________________
Decided: November 15, 2011
__________________________
JULIAN E. PUNONGBAYAN, of Olongapo City, Philip-
pines, pro se.
GREGG PARIS YATES, Trial Attorney, Commercial Liti-
gation Branch, Civil Division, United States Department
of Justice, of Washington, DC, for respondent. With him
on the brief were TONY WEST, Assistant Attorney General,
PUNONGBAYAN v. OPM 2
JEANNE E. DAVIDSON, Director, and DEBORAH A. BYNUM,
Assistant Director.
__________________________
Before NEWMAN, PLAGER, and LINN, Circuit Judges.
PER CURIAM.
Julian E. Punongbayan petitions for review of a final
decision of the Merit Systems Protection Board (Board)
denying him a retirement annuity under the Civil Service
Retirement System (CSRS). 1 The Board affirmed a
decision of the Office of Personnel Management (OPM)
finding that Mr. Punongbayan was not entitled to an
annuity and not entitled to make a credit deposit into the
CSRS based on his service with the Department of the
Navy (“Navy”). We affirm.
Mr. Punongbayan worked for the Navy at the U.S.
Naval Supply Department at Subic Bay in the Philippines
from April 28, 1965 to September 25, 1978. During that
time, Mr. Punongbayan held several positions: (1) Clerk
Typist, (2) Supply Clerk, and (3) Supply Technician. Each
of these positions were either temporary or indefinite
appointments in the excepted service—meaning that they
were excepted from competitive service as defined in 5
U.S.C. § 2102.
Mr. Punongbayan sought to make a deposit for his
prior service into the CSRS under 5 U.S.C. § 8334. Be-
cause positions within the excepted service are not cov-
1 Punongbayan v. Office of Pers. Mgmt., No. SF-
0831-10-0635-I-1 (Aug. 30, 2010) (initial decision);
Punongbayan v. Office of Pers. Mgmt., Nos. SF-0831-10-
0634-I-1 and SF-0831-10-0635-I-1 (Apr. 1, 2011) (“Final
Decision”) (final order denying petition for review).
3 PUNONGBAYAN v. OPM
ered by the Civil Service Retirement Act (“CSRA”), OPM
determined that he was ineligible to make a deposit.
Mr. Punongbayan appealed OPM’s decision and the
Board affirmed. Punongbayan, Final Decision at 3. The
Board further determined that because Mr. Punongbayan
is neither currently employed in a position subject to civil
service law, nor a former employee who retains retire-
ment annuity rights, he is ineligible to make a deposit
into the CSRS system under 5 U.S.C. § 8334. Id. This
appeal followed.
Our scope of review in an appeal from a decision of
the Board is limited. We must affirm the Board’s decision
unless we find it to be arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law;
obtained without procedures required by law, rule, or
regulation having been followed; or unsupported by
substantial evidence. 5 U.S.C. § 7703(c).
Under 5 U.S.C. § 8334, former government employees
may make credit deposits into the CSRS for prior eligible
service. See 5 U.S.C. § 8334(c) (“Each employee or Mem-
ber credited with civilian service after July 31, 1920, for
which retirement deductions or deposits have not been
made, may deposit with the interest an amount equal to
the following percentages of his basic pay received for
that service . . . .”). Further, 5 C.F.R. § 831.112(a)(2)
specifies that former government employees may make a
deposit or redeposit under 5 U.S.C. § 8334 if they “retain[]
civil service retirement annuity rights based on a separa-
tion from a position in which retirement deductions were
properly withheld and remain (or have been redeposited
in whole or in part) in the Civil Service Retirement and
Disability Fund.” 5 C.F.R. § 831.112(a)(2). If the former
employee never held a position covered by the CSRA, they
PUNONGBAYAN v. OPM 4
cannot make a deposit pursuant to 5 U.S.C. § 8334(c).
Dela Rosa v. Office of Pers. Mgmt., 583 F.3d 762, 765
(Fed. Cir. 2009). While most years in government service
are given credit under the CSRA, not all service is eligi-
ble. Herrera v. United States, 849 F.2d 1416, 1417 (Fed.
Cir. 1988) (affirming the Board’s determination that
temporary, indefinite appointments did not qualify as
covered service under 5 U.S.C. § 8333); Casilang v. Office
of Pers. Mgmt., 248 F.3d 1381, 1383 (Fed. Cir. 2001)
(affirming the Board’s determination that an indefinite,
excepted appointment was not covered by the CSRA).
Because all of Mr. Punongbayan’s appointments dur-
ing his Federal service were temporary or indefinite
appointments excluded from CSRA covered service—a
fact undisputed by the petitioner—we find no error in the
Board’s determination that Mr. Punongbayan is ineligible
to participate in the CSRS. The decision of the Board is
affirmed.
AFFIRMED
COSTS
Each party shall bear its own costs.