Reyes v. Office of Personnel Management , 381 F. App'x 996 ( 2010 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
__________________________
ANGEL B. DELOS REYES, JR.,
Petitioner,
v.
OFFICE OF PERSONNEL MANAGEMENT,
Respondent.
__________________________
2009-3201
__________________________
Petition for review of the Merit Systems Protection
Board in SF0831080721-I-1.
__________________________
Decided: June 9, 2010
__________________________
ANGEL B. DELOS REYES, JR., of Antipolo, San Antonio,
Philippines, pro se.
RUSSELL A. SHULTIS, 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,
JEANNE E. DAVIDSON, Director, and BRYANT G. SNEE,
Deputy Director.
__________________________
DELOS REYES v. OPM 2
Before RADER, Chief Judge, LINN, and PROST, Circuit
Judges.
PER CURIAM.
Angel B. Delos Reyes, Jr. (“Delos Reyes”) appeals the
final judgment of the Merit Systems Protection Board
(“Board”) affirming the August 13, 2008 decision of the
Office of Personnel Management (“OPM”) that Delos
Reyes was not eligible to make a deposit in order to obtain
benefits under the Civil Service Retirement System
(“CSRS”). Delos Reyes v. Office of Pers. Mgmt., No. SF-
0831-08-0721-I-1 (MSPB April 27, 2009) (“Final Deci-
sion”). Because the Board’s decision in not in error, we
affirm.
Delos Reyes served as a federal employee for ap-
proximately 25 years from July, 1965 to November, 1990
in various civilian positions for the Department of the
Navy. All of Delos Reyes’s jobs were classified as either
not-to-exceed (“NTE”) (a temporary appointment that
expires on the not-to-exceed date) or indefinite appoint-
ments. No CSRS contributions were withheld from Delos
Reyes’s pay during his employment. Pet. Br. at 1. On
February 19, 2008, Delos Reyes applied to make a deposit
to CSRS. OPM denied this request on March 25, 2008.
OPM affirmed its denial on reconsideration, explaining
that Delos Reyes’s employment was not subject to the
Civil Service Retirement Act (“CSRA”) and therefore he
was ineligible to make a CSRS deposit. On appeal to the
Board, the administrative judge affirmed OPM’s decision.
Delos Reyes v. Office of Pers. Mgmt., No. SF-0831-08-0721-
I-1 (MSPB Jan. 6, 2009) (“Opinion”). The Board also
denied Delos Reyes’s claim of discrimination. Opinion at
7. On review, the full Board adopted the administrative
judge’s initial decision. Final Decision at 2.
3 DELOS REYES v. OPM
This court’s review of a Board decision is limited by
statute. Under 5 U.S.C. § 7703(c), this court is bound by a
decision of the Board unless we find it arbitrary, capri-
cious, an abuse of discretion, or otherwise not in accor-
dance with law; obtained without procedures required by
law; or unsupported by substantial evidence. See, e.g.,
Casilang v. Office of Pers. Mgmt., 248 F.3d 1381, 1382
(Fed. Cir. 2001). A petitioner must prove entitlement to
retirement benefits by a preponderance of the evidence.
5 C.F.R. § 1201.56(a)(2); Cheeseman v. Office of Pers.
Mgmt., 791 F.2d 276 (Fed. Cir. 1985).
There are two types of federal service that are perti-
nent to a determination of whether an individual is enti-
tled CSRS benefits─”creditable service” and “covered
service.” Herrera v. United States, 849 F.2d 1416, 1417
(Fed. Cir. 1988). To be entitled to CSRS benefits, an
individual must have had both creditable service and a
certain amount of covered service. See 5 U.S.C.
§§ 8331(1), 8333, and 8336-38; Herrera, 849 F.2d at 1417;
Noveloso v. Office of Pers. Mgmt., 45 MSPR 321, 323
(1990), aff’d, 925 F.2d 1478 (Fed. Cir. 1991) (Table).
Temporary, intermittent, and excepted indefinite ap-
pointments are specifically excluded from covered service
under the CSRA. See 5 C.F.R. §§ 831.201(a)(1), (6), (12)
and (13); Casilang, 248 F.3d at 1383.
In this case, the Board found that Delos Reyes’s em-
ployment was entirely rendered under appointments
excepted by the CSRA from covered service─NTE, inter-
mittent and/or indefinite appointments─and thus ex-
cluded from retirement coverage. Opinion at 5. The
record supports this finding and Delos Reyes does not
appear to dispute the facts as determined by the adminis-
trative judge. Instead, Delos Reyes argues that despite
the fact that his employment was not covered service, his
employment was creditable service and therefore he is
DELOS REYES v. OPM 4
eligible to make a deposit. Pet. Br. at 3-7. Even if he is
correct about his employment qualifying as creditable
service, however, Delos Reyes must also meet the covered
service requirement in order to qualify for CSRS benefits.
5 U.S.C. § 8333(b). The record before us establishes that
his service does not meet the covered service requirement.
Delos Reyes filed a statement with this court pursu-
ant to Federal Circuit Rule 15(c) on which he checked the
box which reads: “No claim of discrimination by reason of
race, sex, age, national origin, or handicapped condition
has been or will be made in this case.” Nonetheless, Delos
Reyes also argues in his informal brief that the Board
erred in denying his discrimination claim. Pet. Br. at 8.
This court does not have jurisdiction to reach the merits
of certain “mixed” cases that present both discrimination
and non-discrimination claims. Dedrick v. Berry, 573
F.3d 1278, 1280 (Fed. Cir. 2009). However, we may
review threshold issues to determine our own jurisdiction.
Id. “For example, we may perform such review as is
necessary to determine whether a cognizable claim for
discrimination has been presented.” Id. Delos Reyes has
not presented such a claim. OPM carried out its ministe-
rial functions without discretion and thus could not have
improperly discriminated against Delos Reyes. See, e.g.,
United States v. Gaubert, 499 U.S. 315, 324 (1991) (stat-
ing “if a regulation mandates particular conduct, and the
employee obeys the direction, the Government will be
protected because the action will be deemed in further-
ance of the policies which led to the promulgation of the
regulation”); Thompson v. Office of Pers. Mgmt., 81 MSPR
677, 680 (1999).
For the foregoing reasons, the Board’s decision is
AFFIRMED
5 DELOS REYES v. OPM
COSTS
No costs.