Case: 22-2270 Document: 25 Page: 1 Filed: 09/07/2023
NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
ERNESTO N. APIAG,
Petitioner
v.
OFFICE OF PERSONNEL MANAGEMENT,
Respondent
______________________
2022-2270
______________________
Petition for review of the Merit Systems Protection
Board in No. SF-0831-16-0465-I-1.
______________________
Decided: September 7, 2023
______________________
ERNESTO N. APIAG, San Narciso, Zambales, Philip-
pines, pro se.
ANDREW JAMES HUNTER, Commercial Litigation
Branch, Civil Division, United States Department of Jus-
tice, Washington, DC, for respondent. Also represented by
BRIAN M. BOYNTON, PATRICIA M. MCCARTHY, FRANKLIN E.
WHITE, JR.
______________________
Before REYNA, TARANTO, and STARK, Circuit Judges.
Case: 22-2270 Document: 25 Page: 2 Filed: 09/07/2023
2 APIAG v. OPM
PER CURIAM.
Ernesto N. Apiag appeals the decision of the Merits
Systems Protection Board, finding him ineligible for de-
ferred retirement annuity benefits under the Civil Service
Retirement System (“CSRS”). Because Mr. Apiag never
held a position covered under the Civil Service Retirement
Act prior to his retirement, he is ineligible for a CSRS an-
nuity. We affirm.
BACKGROUND
Mr. Apiag worked at the United States Naval Station
in Subic Bay, Philippines, in various positions from June
1972 until his involuntary termination in June 1987.
Appx24–32. 1 Mr. Apiag’s Notice of Personnel Action
Standard Forms 50 (“SF-50s”) show that, throughout his
service period, he served under not-to-exceed and indefi-
nite excepted appointments. 2 See id. The SF-50s further
designate Mr. Apiag’s retirement plan eligibility as “None”
or “Other.” See id. (listing retirement code as “4” or “5”).
No retirement deductions were withheld from his pay. See
Petitioner’s Informal Br. 5, 12 (conceding that he did not
make a “deposit” during the time of his employment). Upon
termination, Mr. Apiag received fourteen months of sever-
ance pay, in accordance with Filipino Employment Person-
nel Instruction (“FEPI”). Appx32.
1 “Appx” refers to the appendix attached to Respond-
ent’s Informal Brief.
2 A not-to-exceed appointment is a temporary ap-
pointment for a limited time, which is excluded from civil
service retirement coverage. See
5 C.F.R. § 831.201(a); see
also
id. § 316.401(c). An indefinite appointment refers to a
nonpermanent appointment for an unlimited period of
time, also excluded from civil service retirement coverage.
See id. § 831.201(a)(13); see also Rosete v. Off. of Pers.
Mgmt.,
48 F.3d 514, 519 (Fed. Cir. 1995).
Case: 22-2270 Document: 25 Page: 3 Filed: 09/07/2023
APIAG v. OPM 3
On August 15, 2013, Mr. Apiag signed an application
requesting retirement annuity benefits under the Civil
Service Retirement System (“CSRS”). Appx33–34 (Mr.
Apiag’s Application for Deferred Retirement). The United
States Office of Personnel Management (“OPM”) denied
Mr. Apiag’s request on the grounds that he did not serve in
a covered position under the Civil Service Retirement Act
(“the Act”) and was not eligible to make a CSRS deposit.
See Appx14. Mr. Apiag appealed to the Merits Systems
Protection Board (“the Board”).
Id.
On July 26, 2016, an Administrative Judge issued an
initial decision affirming the OPM’s denial of Mr. Apiag’s
request for CSRS retirement benefits. See Appx13, 18. On
July 22, 2022, the Board denied Mr. Apiag’s petition for re-
view of the initial decision and affirmed the initial decision.
Appx1–2, 7. The initial decision therefore became the
Board’s final decision. Appx2, 7.
In affirming the initial decision, the Board explained
that Mr. Apiag served under a series of excepted-service
appointments, which are excluded from CSRS coverage.
Appx2, 5. The Board rejected Mr. Apiag’s argument that
5
C.F.R. § 831.303(a) “converted his creditable service” into
“covered service.” Appx6. According to the Board, Section
831.303(a) governs computation of annuity for “those al-
ready covered by the CSRS” and it does not “create[] an en-
titlement to coverage” for those who are excluded from
coverage, like Mr. Apiag. Appx6–7. The Board concluded
that because Mr. Apiag never served in a covered position,
he was ineligible for a CSRS annuity. Appx7.
Mr. Apiag appealed. We have jurisdiction pursuant to
28 U.S.C. § 1295(a)(9).
STANDARD OF REVIEW
Our review of the Board’s decision is limited by statute.
We may only set aside agency actions, findings, or conclu-
sions if we find them to be “(1) arbitrary, capricious, an
Case: 22-2270 Document: 25 Page: 4 Filed: 09/07/2023
4 APIAG v. OPM
abuse of discretion, or otherwise not in accordance with
law; (2) obtained without procedures required by law, rule,
or regulation having been followed; or (3) unsupported by
substantial evidence.”
5 U.S.C. § 7703(c). The petitioner
bears the burden of proving entitlement to the benefit he
seeks by a preponderance of the evidence. See
5 C.F.R.
§ 1201.56(b)(2); Cheeseman v. Off. of Pers. Mgmt.,
791 F.2d
138, 141 (Fed. Cir. 1986).
DISCUSSION
Mr. Apiag argues that the Board erred in determining
he was ineligible for a CSRS annuity because it should
have determined that 5 C.F.R § 831.303(a) entitles him to
such benefits. 3 Petitioner’s Informal Br. 2, 5. We disagree.
There are two kinds of federal service relevant to de-
termining whether an individual is entitled to a CSRS
3 Section 831.303(a) provides that,
Periods of creditable civilian service per-
formed by an employee or Member after
July 31, 1920, but before October 1, 1982,
for which retirement deductions have not
been taken shall be included in determin-
ing length of service to compute annuity
. . .; however, if the employee, Member, or
survivor does not elect either to complete
the deposit describe[d] 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 depos-
ited (plus interest) for the period of noncon-
tributory service.
5 C.F.R. § 831.303(a).
Case: 22-2270 Document: 25 Page: 5 Filed: 09/07/2023
APIAG v. OPM 5
retirement annuity: creditable service and covered service.
Rosete v. Off. of Pers. Mgmt.,
48 F.3d 514, 516 (Fed. Cir.
1995). While nearly all federal service is creditable, not all
service is covered.
Id. Covered service only includes ap-
pointments “subject to” the Act and for which employees
must deposit a portion of their pay into the Civil Service
Retirement and Disability Fund.
Id.
To qualify for a CSRS annuity, an employee must have
completed at least five years of creditable service and must
have served one of his last two years in a covered service
position.
5 U.S.C. § 8333(a)–(b); Quiocson v. Off. of Pers.
Mgmt.,
490 F.3d 1358, 1360 (Fed. Cir. 2007). Temporary,
intermittent, term, and excepted indefinite appointments
are excluded from the Act’s coverage.
5 C.F.R.
§ 831.201(a); see also Quiocson,
490 F.3d at 1360.
The regulations permit those who are covered by the
Act to include certain periods of creditable service in calcu-
lating their annuity.
5 C.F.R. § 831.303(a); see Lledo v. Off.
of Pers. Mgmt.,
886 F.3d 1211, 1214 (Fed. Cir. 2018) (dis-
cussing application of
5 C.F.R. § 831.303(a)). Section
831.303(a), however, “cannot circumvent the covered ser-
vice requirement of
5 U.S.C. § 8333(b),” which is a prereq-
uisite for an individual to qualify for a CSRS retirement
annuity. Lledo,
886 F.3d at 1214 (quoting Fontilla v. Off.
of Pers. Mgmt.,
482 F. App’x 563, 565 (Fed. Cir. 2012)).
This section “does not alter the definition of covered ser-
vice, or convert creditable service into covered service.”
Id.
We hold that substantial evidence supports the Board’s
conclusion that Mr. Apiag never held a covered service po-
sition under the Act, and he is therefore ineligible for a
CSRS annuity. Mr. Apiag’s SF-50s show that he served
exclusively under temporary and indefinite excepted-ser-
vice appointments, which are excluded from the Act’s
Case: 22-2270 Document: 25 Page: 6 Filed: 09/07/2023
6 APIAG v. OPM
coverage. 4 See Appx24–32. His SF-50s designate his re-
tirement plan as “None” or “Other,” which reflects a lack of
participation in the CSRS system. Id.; see Rosete,
48 F.3d
at 520 (explaining that listings of “none” or “other” reflect
a lack of civil service retirement coverage).
In addition, as the Board pointed out, the absence of
any retirement deductions from Mr. Apiag’s pay also shows
that he never served in a covered position. Appx5; see also
Appx24–32. Mr. Apiag received retirement benefits under
the FEPI, a separate retirement system. Appx32. This fur-
ther supports the Board’s determination that his service
was not covered under the CSRS. See Quiocson,
490 F.3d
at 1360 (finding that an individual’s receipt of benefits un-
der a non-CSRS plan indicates his service was not covered
under the CSRS).
The Board concluded that Mr. Apiag’s reliance on
5
C.F.R. § 831.303(a) was misplaced because the cited regu-
lation does not “create[] an entitlement to coverage or a de-
posit under the CSRS for employees, such as [Mr. Apiag],
who are excluded from coverage.” Appx6–7. We agree. Mr.
Apiag asserts that § 831.303(a) renders him eligible for “de-
ferred annuity based upon [his] creditable civilian services
without making a deposit.” Petitioner’s Informal Br. 5. In
cases addressing this very issue, we have squarely rejected
any notion that Section 831.303(a) creates entitlement to a
CSRS retirement annuity for those excluded from coverage
under the Act. Lledo,
886 F.3d at 1214 (collecting cases
4 Mr. Apiag appears to argue that the “Tenure Group
1” assignment on his last SF-50 shows that his position was
not excluded from CSRS coverage. See Petitioner’s Infor-
mal Br. 11; Appx31. This argument fails because “[t]enure
group assignments establish the order of retention during
a reduction-in-force, but they do not establish that a par-
ticular position is ‘covered service.’” Quiocson,
490 F.3d at
1361.
Case: 22-2270 Document: 25 Page: 7 Filed: 09/07/2023
APIAG v. OPM 7
rejecting reliance on Section 831.303(a) for entitlement to
a CSRS annuity). Because Section 831.303(a) does not
change the covered service requirement under the Act, Mr.
Apiag’s lack of covered service renders him ineligible for a
CSRS annuity.
CONCLUSION
We have considered Mr. Apiag’s other arguments and
find them unpersuasive. We discern nothing arbitrary, ca-
pricious, or otherwise erroneous with the Board’s decision.
The judgment of the Board is therefore affirmed.
AFFIRMED
COST
No costs.
