Garcia v. Office of Personnel Management , 660 F. App'x 930 ( 2016 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
FRANCISCO T. GARCIA,
Petitioner
v.
OFFICE OF PERSONNEL MANAGEMENT,
Respondent
______________________
2016-1114
______________________
Petition for review of the Merit Systems Protection
Board in No. SF-0831-14-0567-I-1.
______________________
Decided: September 21, 2016
______________________
FRANCISCO T. GARCIA, Olongapo City, Philippines, pro
se.
DEVIN ANDREW WOLAK, Commercial Litigation
Branch, Civil Division, United States Department of
Justice, Washington, DC, for respondent. Also represent-
ed by BENJAMIN C. MIZER, ROBERT E. KIRSCHMAN, JR.,
BRIAN A. MIZOGUCHI.
______________________
Before NEWMAN, DYK, and TARANTO, Circuit Judges.
2 GARCIA v. OPM
NEWMAN, Circuit Judge.
Francisco T. Garcia appeals a decision of the Merit
Systems Protection Board (“Board”) affirming the Office of
Personnel Management’s (“OPM”) denial of entitlement to
a deferred retirement annuity under the Civil Service
Retirement System (“CSRS”). The Board found that Mr.
Garcia never served in a position covered by the CSRS.
That finding is in accordance with law; the decision is
affirmed.
BACKGROUND
Mr. Garcia worked for the Department of the Navy at
the Subic Bay Naval Base in the Philippines from 1972
until 1992 in a variety of positions in the excepted service.
Between 1972 and February 1980, these positions were
classified as “temporary,” and all of the “Notice of Person-
nel Action” Standard Forms 50 (“SF-50s”) for these ap-
pointments list his retirement plan as “None.”
On February 17, 1980, Mr. Garcia’s position was re-
classified as an excepted service “indefinite” appointment.
Mr. Garcia served as a Surveying Aid, Surveying Techni-
cian, and Supervisory Surveying Technician until he
resigned on September 30, 1992 in lieu of termination
under a reduction-in-force. Each SF-50 during this period
listed his retirement plan as “Not Applicable” or “Other.”
There is no record that any of Mr. Garcia’s pay was ever
withheld or deposited into the CSRS fund, and Mr. Garcia
does not state otherwise.
In 2012, Mr. Garcia filed an application for deferred
retirement under the CSRS. OPM denied the application
because he “never served in a position subject to the
CSRS.” J.A. 24. Mr. Garcia requested reconsideration,
and on April 21, 2014, OPM issued its final decision
denying entitlement to an annuity, stating that Mr.
Garcia did not have the minimum one year of covered
service.
GARCIA v. OPM 3
Mr. Garcia appealed to the Board. The Board af-
firmed the denial, stating that Mr. Garcia 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 observed
that Mr. Garcia’s appointments were either excepted
service indefinite or temporary, which are not covered by
the CSRA. Mr. Garcia appeals.
DISCUSSION
To be eligible for a retirement annuity, an employee
must have completed at least five years of “creditable
service.” 5 U.S.C. §§ 8333(a)-(b). In addition, at least one
of the final two years of employment prior to separation
must have been “covered” service, that is, “creditable
civilian service during which he is subject to the [CSRA].”
5 U.S.C. § 8333(b). Temporary, intermittent, term, and
excepted indefinite appointments are excluded from
CSRA coverage. 5 C.F.R. § 831.201(a); Quiocson v. Office
of Pers. Mgmt., 490 F.3d 1358, 1360 (Fed. Cir. 2007).
Mr. Garcia argues that certain changes in the law
during his service converted his creditable position into a
covered position within the CSRA. 5 U.S.C. § 8334(c)
permits an “employee . . . credited with civilian service . . .
for which retirement deductions have not been made”
under the CSRS to make a deposit with interest to the
CSRS and receive an annuity.
The issue relates to the applicability of 5 C.F.R.
§ 831.112, which defines an “employee” eligible to make a
deposit or receive an annuity as:
(1) A person currently employed in a position sub-
ject to the civil service retirement law; or
(2) A former employee . . . who retains civil service
retirement annuity rights based on a separation
from a position in which retirement deductions
4 GARCIA v. OPM
were properly withheld and remain . . . in the Civ-
il Service Retirement and Disability Fund.
Mr. Garcia argues that this regulatory provision does not
apply to him because annuities for creditable service prior
to 1982 are governed solely by 5 C.F.R. § 831.303(a),
which states:
Periods of creditable civilian service performed by
an employee or Member after July 31, 1920, but
before October 1, 1982, for which retirement de-
ductions have not been taken shall be included in
determining length of service to compute annuity .
. . ; however, if the employee, Member, or survivor
does not elect either to complete the deposit de-
scribed by section 8334(c) of title 5, United States
Code, or to eliminate the service from annuity
computation, his or her annuity is reduced by 10
percent of the amount which should have been
deposited (plus interest) for the period of noncon-
tributory service.
Mr. Garcia states that this provision retroactively con-
verted all periods of “creditable” federal employment prior
to October 1, 1982 to “covered” service under the CSRA.
Mr. Garcia also argues that under § 831.303(a), he is
entitled to a reduced annuity for his federal service be-
tween June 24, 1974 and September 30, 1982.
This court has previously considered the issue, and
concluded that statutory entitlement does not arise on
either of these theories. See, e.g., Dela Rosa v. Office of
Pers. Mgmt., 583 F.3d 762, 765 (Fed. Cir. 2009) (holding
that § 831.112(a)(2) “allows a ‘former employee’ to make a
deposit only if that former employee is already covered by
the CSRS”); id. at 764 (agreeing that § 8334(c) does not
allow a former employee to “convert [creditable] service
into covered service and thereby establish eligibility for a
CSRS retirement annuity); Herrera v. U.S., 849 F.2d
1416, 1417 (Fed. Cir. 1988) (“temporary, indefinite ap-
GARCIA v. OPM 5
pointments” were not “covered service”); see also Fontilla
v. Office of Pers. Mgmt., 482 F. App’x 563, 565 (Fed. Cir.
2012) (“Section 831.303(a) does not supplant § 831.112
and cannot circumvent the covered service requirement of
5 U.S.C. § 8333(b).”)
There is no statutory support for Mr. Garcia’s argu-
ments that § 831.303(a) retroactively converted creditable
service into covered service or otherwise changed who
qualified for an annuity. Prior to 1982, Mr. Garcia served
in temporary and excepted service indefinite positions
that clearly were excluded from the CSRS. Although Mr.
Garcia had more than five years of creditable service as
an employee, section 831.303(a) did not convert excluded
positions into CSRA covered service. Mr. Garcia’s SF-50s
only indicate “None,” “Other,” or “Not Applicable,” and he
has not proposed that the forms contained errors or were
otherwise incomplete. Section 831.303(a) does not sup-
plant the covered service requirements of § 831.112(a)(2)
and 5 U.S.C. § 8333(b). The only effect of § 831.303(a) is
to permit persons already covered by the CSRS to include
certain service when calculating the annuity. We discern
no error in the Board’s determination that Mr. Garcia had
not served in a position covered by the CSRS.
We have considered Mr. Garcia’s additional argu-
ments relating to his participation in a different retire-
ment system under a collective bargaining agreement,
and conclude they do not affect the result.
The decision of the Board is affirmed.
AFFIRMED
No costs.