NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
DELFIN E. ECLARIN,
Petitioner
v.
OFFICE OF PERSONNEL MANAGEMENT,
Respondent
______________________
2018-2425
______________________
Petition for review of the Merit Systems Protection
Board in No. SF-0831-17-0672-I-1.
______________________
Decided: June 5, 2019
______________________
DELFIN E. ECLARIN, San Narciso, Zambales, Philip-
pines, pro se.
MEEN GEU OH, Commercial Litigation Branch, Civil
Division, United States Department of Justice, Washing-
ton, DC, for respondent. Also represented by JOSEPH H.
HUNT, DEBORAH ANN BYNUM, AUSTIN FULK, ROBERT
EDWARD KIRSCHMAN, JR.
______________________
Before CHEN, HUGHES, and STOLL, Circuit Judges.
2 ECLARIN v. OPM
PER CURIAM.
Delfin Eclarin appeals the decision of the Merit Sys-
tems Protection Board (Board) affirming a determination
by the Office of Personnel Management (OPM) that he does
not qualify for a Civil Service Retirement System (CSRS) 1
annuity. Because the Board’s decision is in accordance
with the law and supported by substantial evidence, we af-
firm.
BACKGROUND
Mr. Eclarin was employed by the U.S. Department of
the Navy in Subic Bay, Philippines, from August 15, 1957,
to April 18, 1963, and then from August 17, 1966, to August
24, 1992. SAppx2–3. 2 From August 15, 1957, to April 18,
1963, he was employed in an indefinite appointment as a
Pumping Plant Operator and then as an Engine & Pump
Operator. SAppx2, 40. On April 18, 1963, he was termi-
nated as part of a reduction in force (RIF) with severance
pay. Id. On August 17, 1966, he was rehired via appoint-
ment as a Driver, a position he held on a full-time basis
until August 16, 1991, and then on a part-time basis until
termination via RIF on August 24, 1992. SAppx3, 36.
The separation notice that issued at Mr. Eclarin’s ter-
mination on April 18, 1963, indicated that he served under
an indefinite position. SAppx2, 40. Mr. Eclarin’s personnel
forms listed his retirement coverage as “[]None” and noted
that he received a lump-sum payment for unused annual
1 The CSRS is the retirement benefits system estab-
lished under the Civil Service Retirement Act (CSRA),
Pub. L. No. 64–584,
70 Stat. 736 (1956);
5 U.S.C. § 8333
(2012).
2 Only one appendix was provided, by the Govern-
ment, labeled “Supplemental Appendix.” Because it was
not joined by the Appellant, we will refer to citations within
it with the given prefix “SAppx” and not J.A.
ECLARIN v. OPM 3
leave under the Filipino Employment Personnel Instruc-
tions (FEPI). SAppx2–3, 40. The August 1991 notification
reducing his work schedule to part-time indicates that he
was entitled to severance pay equal to one month’s pay for
each year served in accordance with FEPI. SAppx3, 36.
During his service from 1957–1963 and 1966–1992, no con-
tributions from his pay were made to the Civil Service Re-
tirement and Disability Fund. SAppx7.
On April 20, 2017, Mr. Eclarin applied for a deferred
retirement annuity under the CSRS for his period of ser-
vice from August 15, 1957, to April 18, 1963. 3 SAppx31–
33. OPM denied his application for lack of “covered ser-
vice.” SAppx29–30. Mr. Eclarin appealed to the Board,
which affirmed OPM’s decision. SAppx1. The Board found
that Mr. Eclarin’s service from August 15, 1957, to April
18, 1963 was under an indefinite appointment that was ex-
cluded from CSRA coverage. SAppx7, 15. The Board also
rejected Mr. Eclarin’s argument that an OPM regulation,
5
C.F.R. § 831.303(a), retroactively implemented automatic
coverage despite lack of deposits into the CSRS. SAppx11–
12, 26. Finally, the Board rejected Mr. Eclarin’s argument
that OPM committed harmful procedural errors in its deci-
sion. SAppx13–14, 26.
Mr. Eclarin appealed. We have jurisdiction pursuant
to
28 U.S.C. § 1295(a)(9).
DISCUSSION
Our authority to review a decision of the Board is lim-
ited by statute. We will set aside the Board’s decision only
if it is “(1) arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law; (2) obtained without
3 Mr. Eclarin previously applied for deferred retire-
ment annuity under CSRS for his period of service from
1966–1992. SAppx3–4. OPM denied that application and
Mr. Eclarin did not appeal.
Id.
4 ECLARIN v. OPM
procedures required by law, rule, or regulation having been
followed; or (3) unsupported by substantial evidence.”
5 U.S.C. § 7703(c); Grover v. Office of Pers. Mgmt.,
828 F.3d
1378, 1382 (Fed. Cir. 2016). An individual who applies to
OPM for retirement benefits must prove entitlement to the
benefits by a preponderance of the evidence.
5 C.F.R.
§ 1201.56(b)(2).
“To qualify for a civil service retirement annuity, a gov-
ernment employee ordinarily must complete at least five
years of creditable service, and at least one of the two years
prior to separation must be ‘covered service,’ i.e., service
that is subject to the [CSRA].” Quiocson v. Office of Pers.
Mgmt.,
490 F.3d 1358, 1360 (Fed. Cir. 2007);
5 U.S.C.
§ 8333. “[M]ost service as an employee of the federal gov-
ernment is creditable service,” but “service that is credita-
ble service is not necessarily covered service.” Herrera v.
United States,
849 F.2d 1416, 1417 (Fed. Cir. 1988). Cov-
ered service is more limited in scope and refers to appoint-
ments that are “subject to the CSRA and for which an
employee must deposit part of his or her pay into the Civil
Service Retirement and Disability Fund.” Rosete v. Office
of Pers. Mgmt.,
48 F.3d 514, 516 (Fed. Cir. 1995). Service
in an indefinite appointment is excluded from CSRS cover-
age under OPM regulations. Quiocson,
490 F.3d at 1360;
5
C.F.R. § 831.201(a).
The record shows that Mr. Eclarin served in an indefi-
nite appointment from August 15, 1957, to April 18, 1963.
SAppx40. But no evidence suggests that he served in a po-
sition covered by the CSRA. None of his personnel forms
indicate his service was covered, and he offers no evidence
that the forms contain errors or are otherwise incomplete.
SAppx2–3. Further, nothing in the record shows that
CSRS retirement benefit contributions were ever deducted
from his pay. SAppx7. Finally, the two retirement plans,
CSRS and FEPI, are mutually exclusive. See
5 U.S.C. §
8331(1)(ii). The severance pay Mr. Eclarin received under
the FEPI indicates that he was covered under a retirement
ECLARIN v. OPM 5
system other than the CSRS, which is evidence that he was
not in covered service. SAppx36, 40.
Mr. Eclarin does not challenge these factual findings.
Despite lacking “covered service,” he nevertheless argues
that § 831.303(a) entitles him to “a reduced annuity” based
solely on his creditable service and excuses his failure “to
deposit money” into the CSRS. Appellant’s Informal Br. at
1. But as this court has already held, § 831.303(a) does not
“alter the definition of covered service, or convert credita-
ble service into covered service.” Lledo v. Office of Pers.
Mgmt.,
886 F.3d 1211, 1213–14 (Fed. Cir. 2018). Instead,
the regulation merely “allows those already covered by the
[CSRA] to include certain creditable service in calculating
the[ir] annuity.” Id. at 1214 (emphasis in original). Be-
cause § 831.303(a) is not an independent basis for coverage
under the CSRA, the Board did not err in affirming OPM’s
determination that Mr. Eclarin is not entitled to an annu-
ity. See id.
We have considered Mr. Eclarin’s remaining argu-
ments and find them unpersuasive. Accordingly, we af-
firm.
AFFIRMED
COSTS
No costs.
