Abiera v. Office of Personnel Management , 490 F. App'x 339 ( 2012 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
__________________________
FLORENCIA A. ABIERA,
Petitioner,
v.
OFFICE OF PERSONNEL MANAGEMENT
Respondent.
__________________________
2011-3193
__________________________
Petition for review of the Merit Systems Protection
Board in SF0831100609-I-1.
___________________________
Decided: July 13, 2012
___________________________
FLORENCIA A. ABIERA, Olongapo City, Philippines, pro
se.
AUSTIN M. FULK, Trial Attorney, Commercial Litiga-
tion Branch, Civil Division, United States Department of
Justice, of Washington, DC, for respondent. With him on
the brief were STUART F. DELERY, Acting Assistant Attor-
ney General, JEANNE E. DAVIDSON, Director, and
REGINALD T. BLADES, JR., Assistant Director.
ABIERA v. OPM 2
__________________________
Before BRYSON, PROST, and REYNA, Circuit Judges.
PER CURIAM.
DECISION
Florencia A. Abiera petitions for review of a decision
of the Merit Systems Protection Board that she is not
entitled to a survivor annuity under the Civil Service
Retirement System (“CSRS”) and is not eligible to make a
deposit into that system to cover the period of her hus-
band’s federal service. We affirm.
BACKGROUND
Santiago J. Abiera, the petitioner’s deceased husband,
worked for the Department of the Navy during the follow-
ing periods: from May 2, 1945, to February 15, 1946; from
September 20, 1948, to April 28, 1950; and from Novem-
ber 14, 1950, to December 31, 1976. During the first two
periods, Mr. Abiera served under “excepted temporary”
appointments. Mr. Abiera’s third period of service began
as an “excepted temporary—intermittent” appointment
but was subsequently converted to an “excepted indefi-
nite” appointment. On December 31, 1976, Mr. Abiera
was separated from service because of physical inability
to perform his duties. At that time, he received 28
months of retirement pay in accordance with the retire-
ment system under which he was covered, the Filipino
Employment Personnel Instructions (“FEPI”).
After his separation from service, Mr. Abiera applied
to the Office of Personnel Management (“OPM”) for a
CSRS annuity. OPM denied the application, and Mr.
Abiera appealed the denial to the Board. The Board
3 ABIERA v. OPM
affirmed OPM’s decision in September 1981, holding that
Mr. Abiera was not entitled to an annuity because none of
his service was covered under the CSRS. In November
1982 the Board denied Mr. Abiera’s request to reopen the
appeal and reconsider the initial decision.
In 1998, after Mr. Abiera’s death, Ms. Abiera sought
death benefits based on her deceased husband’s federal
service. OPM denied that application because Mr. Abiera
had not made any contributions to the Civil Service
Retirement and Disability Fund (“the Fund”) and there-
fore no lump sum death benefit was payable under the
CSRS. Ms. Abiera requested reconsideration of the
denial, but OPM denied that request because it was
untimely. Ms. Abiera sought review of that decision by
the Board, but the Board upheld OPM’s decision. Mr.
Abiera filed a petition for review of that decision by the
full Board, but the petition was dismissed as untimely
filed.
In 2008, Ms. Abiera applied to OPM for a survivor
annuity and requested that she be allowed to make a
deposit to the Fund to cover her husband’s federal service.
After OPM denied her request, Ms. Abiera appealed to the
Board, which affirmed OPM’s decision. After the full
Board denied Ms. Abiera’s petition for review, she sought
review by this court.
DISCUSSION
As explained by the administrative judge, there are
two types of federal service at issue in determining enti-
tlement to benefits under the Civil Service Retirement
Act (“CSRA”)—“creditable service” and “covered service.”
See Noveloso v. Office of Pers. Mgmt., 45 M.S.P.R. 321,
323 (1990), aff’d, 925 F.2d 1478 (Fed. Cir. 1991). Almost
ABIERA v. OPM 4
all federal service is creditable service. Covered service is
more limited in scope, referring to federal employees who
are “subject to” the CSRA, i.e., employees who must
deposit part of their basic pay into the Fund. Id. In order
to receive an annuity under the CSRA, a federal employee
must have at least five years of creditable service. 5
U.S.C. § 8333(a). The federal employee must also have
served in a covered position. Id. § 8333(b). Except in the
case of separation due to death or disability, that service
must be for at least one year during the last two years
before separation. Id.; see Quiocson v. Office of Pers.
Mgmt., 490 F.3d 1358, 1360 (Fed. Cir. 2007). A person is
entitled to survivor benefits only if the deceased individ-
ual was a covered employee or retiree at the time of his or
her death. 5 C.F.R. § 831.112(b). For the purpose of
survivor annuities, deposits to the Fund may be made by
survivors of covered employees. 5 U.S.C. § 8334(h).
Service under temporary, intermittent, and indefinite
appointments, such as Mr. Abiera’s, is not considered
“covered service” under the CSRA. See Exec. Order No.
10,350 (relating to employment after December 1, 1950); 5
C.F.R. § 831.201(a)(1), (2), (6), (13). Therefore, the Board
correctly found that Mr. Abiera’s service, while creditable,
is not “covered.” The evidence before the Board supports
the Board’s decision that Mr. Abiera did not have the
requisite covered service under the CSRA. First, Mr.
Abiera’s SF-50 forms (“Notification of Personnel Action”)
refer to his retirement coverage as “other” or “none.”
Those designations support a finding that his service was
not covered. See Arcinas v. Office of Pers. Mgmt., 82
M.S.P.R. 603, 606 (1999). Second, Mr. Abiera did not
contribute any funds to the Fund during his service. The
fact that no retirement contributions were made is a
further indication that is service was not covered. See
Quiocson, 490 F.3d at 1360. Third, Mr. Abiera received a
5 ABIERA v. OPM
retirement payout from FEPI, a system separate from the
CSRS. A payment from a separate retirement system is
an indication that the employee was not covered by the
CSRS. Id.The question whether Mr. Abiera’s service was cov-
ered is not a new issue. The same issue was previously
adjudicated in 1982 when the Board determined that Mr.
Abiera was not covered under the CSRA. In 1998, when
Ms. Abiera applied for death benefits, OPM again deter-
mined that Mr. Abiera’s service was not covered by CSRS.
Accordingly, as found by the administrative judge in this
case, Ms. Abiera’s claim is barred by issue preclusion. See
Kroeger v. U.S. Postal Serv., 865 F.2d 235, 237 (Fed. Cir.
1988).
Even apart from issue preclusion, Ms. Abiera’s claim
fails on the merits. Ms. Abiera refers to a number of
statutes and regulations in support of her contention that
she is eligible for a survivor annuity and that she is
entitled to make a contribution to the Fund, thereby
triggering her right to annuity payments. Those argu-
ments all fail for the simple reason that Mr. Abiera was
not subject to the CSRA during his service and therefore
did not have the requisite “covered” service. Because Mr.
Abiera was not subject to the CSRA, Ms. Abiera is not
entitled to make a deposit to the Fund under 5 U.S.C. §
8334(h).
Ms. Abiera argues that Executive Order 9154 estab-
lishes that her husband was a covered employee because
the order refers to eligibility based on “continuity of
service,” Exec. Order 9154, reprinted at 7 Fed. Reg. 3275,
and that under Hawco v. Office of Personnel Management,
52 M.S.P.R. 290 (1992), he was entitled to CSRS benefits.
In Hawco, the Board found that because the appellant
ABIERA v. OPM 6
was separated from service prior to August 30, 1954, the
fact that he had later creditable (but not covered) service
did not deprive him of any annuity to which he was
entitled as a result of his earlier service. 52 M.S.P.R. at
295. While Mr. Abiera appears to have been separated
from service in February 1946, Hawco is inapplicable to
his case because Mr. Abiera did not accumulate the
requisite five years of creditable service prior to his 1946
separation and because there is no evidence that any of
his prior service was “covered” service that would entitle
Ms. Abiera to a survivor annuity. We therefore affirm the
Board’s decision that Ms. Abiera is not entitled to a
survivor annuity and is not entitled to make a deposit to
cover her late husband’s federal service.
No costs.
AFFIRMED