Espiritu v. Office of Personnel Management , 431 F. App'x 897 ( 2011 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
__________________________
MARCELINO G. ESPIRITU,
Petitioner,
v.
OFFICE OF PERSONNEL MANAGEMENT,
Respondent.
__________________________
2010-3163
__________________________
Petition for review of the Merit Systems Protection
Board in Case No. SF0831090974-I-1.
___________________________
Decided: June 8, 2011
___________________________
MARCELINO G. ESPIRITU, Zaqmbes, Philippines, pro se.
RUSSELL J. UPTON, Trial Attorney, Commercial Litiga-
tion Branch, Civil Division, United States Department of
Justice, of Washington, DC for the respondent. With him
on the brief were TONY WEST, Assistant Attorney General,
JEANNE E. DAVIDSON, Director, and REGINALD T. BLADES,
JR.
__________________________
ESPIRITU v. OPM 2
Before BRYSON, MAYER, and GAJARSA, Circuit Judges.
PER CURIAM.
DECISION
Marcelino G. Espiritu filed this appeal from a decision
of the Merit Systems Protection Board that affirmed
judgments of the Office of Personnel Management
(“OPM”) denying his application for deferred retirement
and his application to make a deposit to the Civil Service
Retirement and Disability Fund. We affirm.
BACKGROUND
Mr. Espiritu worked for the Department of the Navy
at the Subic Bay Naval Base in the Philippines from 1966
to 1992 in a variety of positions including Supervisory
Security Clerk. In 1992, Mr. Espiritu resigned from that
position to take early retirement. His federal personnel
form, Form SF-50, stated that he was entitled to a lump-
sum payout of approximately two years worth of salary.
That SF-50 and other SF-50s for his previous federal
positions describe his retirement coverage as “other” or
“none.”
In 2009, Mr. Espiritu filed an application for deferred
retirement and an application to make a deposit under
the Civil Service Retirement System (“CSRS”) for his
service from 1982 to 1992. OPM denied his application
for deferred retirement because his SF-50 showed that his
service was not covered by the CSRS. OPM also denied
his deposit application based on 5 C.F.R. § 831.112(a)
because he was not employed in a position subject to
federal retirement deductions and did not have a right to
an annuity.
3 ESPIRITU v. OPM
Mr. Espiritu appealed those decisions to the Merit
Systems Protection Board. The Board affirmed the deci-
sion denying his application for deferred retirement
because Mr. Espiritu did not serve in a position covered
by the Civil Service Retirement Act (“CSRA”) during one
of his last two years of employment, as required by 5
U.S.C. § 8333(b). The Board concluded that Mr.
Espiritu’s position was “indefinite” under 5 C.F.R.
§ 831.201(a)(13) because his SF-50 described his retire-
ment coverage as “other” or “none” and he acknowledged
that he received retirement benefits under the Filipino
Employment Personnel Instructions (“FEPI”). Based on
the same evidence, the Board affirmed OPM’s decision
denying his application to make a deposit toward a re-
tirement annuity.
Mr. Espiritu appealed those decisions to this court.
While his appeal was pending, we were informed that Mr.
Espiritu had died on March 26, 2011. On April 18, 2011,
his wife, Cleofe Espiritu, filed a motion to substitute
herself in his appeal. We grant that motion.
DISCUSSION
Under circumstances prescribed by statute and regu-
lation, an employee with civilian service for which retire-
ment deductions were not made may make a later deposit
of those deductions and thereby obtain credit toward a
retirement annuity. 5 U.S.C. § 8334. The right of deposit
is limited to persons designated as “employees.” That
term is defined to mean persons currently employed in
CSRS-eligible positions or persons formerly employed in
such positions who are eligible for a retirement annuity.
5 C.F.R. § 831.112(a). For the purpose of survivor annui-
ties, survivors of “employees” within the meaning of 5
C.F.R. § 831.112 may make deposits when employees
ESPIRITU v. OPM 4
would have been authorized to make them. See 5 U.S.C.
§ 8334(h); 5 C.F.R. § 831.112(b).
In order to be eligible for a retirement annuity, an
employee must have completed at least five years of
“creditable service.” 5 U.S.C. §§ 8331(12), 8332, 8333(a).
In addition, at least one of the final two years of employ-
ment prior to separation must have been “creditable
civilian service during which [the employee] is subject to
the [CSRA].” Id. § 8333(b).
Ms. Espiritu contends that an employee is eligible for
a CSRS retirement annuity merely by virtue of undertak-
ing creditable service during one of the final two years of
employment prior to separation. This court has rejected
that position. Herrera v. United States, 849 F.2d 1416,
1417 (Fed. Cir. 1988). The “one-out-of-two” requirement
refers to “covered service,” i.e., service subject to the
CSRA. Id. OPM and the Board determined that Mr.
Espiritu’s service was not covered by the CSRA because
he received FEPI retirement benefits and his SF-50 forms
described his retirement coverage as “other” or “none.”
Ms. Espiritu challenges that determination, contend-
ing that Mr. Espiritu’s position was covered by the CSRA
because it was a full-time position. She relies on Dove v.
United States, 161 Ct. Cl. 768 (1963), for that proposition.
That case dealt with the question whether an employee
was employed intermittently or full time. OPM did not
rely on that distinction to determine that Mr. Espiritu’s
position was not covered by the CSRA. Instead, it found
that Mr. Espiritu’s position was nonpermanent or indefi-
nite, and that it was therefore excluded from the CSRS
under 5 C.F.R. § 831.201(a)(13).
5 ESPIRITU v. OPM
Ms. Espiritu contends that Mr. Espiritu’s position was
erroneously found to be indefinite. OPM and the Board
found his position to be indefinite because it was covered
by another retirement program, FEPI. This court has
endorsed that ground of decision in previous cases. See
Dela Rosa v. Office of Pers. Mgmt., 583 F.3d 762, 766
(Fed. Cir. 2009); Quiocson v. Office of Pers. Mgmt., 490
F.3d 1358, 1360 (Fed. Cir. 2007). Ms. Espiritu argues
that those cases were wrongly decided and should be
overturned in an en banc proceeding. She is free to peti-
tion this court for an en banc rehearing, but absent such a
proceeding, those cases are currently binding precedent.
To the extent that Ms. Espiritu is continuing to press
the same arguments that Mr. Espiritu raised in his brief,
we hold that he did not have a right to an annuity or to
make a deposit toward a retirement annuity. She has not
shown that her rights are greater than his. We therefore
sustain the decision of the Board.
No costs.
AFFIRMED