Orcino v. Office of Personnel Management , 482 F. App'x 586 ( 2012 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
__________________________
ROMULO ORCINO,
Petitioner,
v.
OFFICE OF PERSONNEL MANAGEMENT,
Respondent.
__________________________
2012-3034
__________________________
Petition for review of the Merit Systems Protection
Board in case no. SF0831110111-I-1.
__________________________
Decided: June 8, 2012
__________________________
ROMULO ORCINO, of Zambales, 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 CLAUDIA
BURKE, Assistant Director.
__________________________
ORCINO v. OPM 2
Before RADER, Chief Judge, NEWMAN, and PLAGER, Circuit
Judges.
PER CURIAM.
Romulo Orcino petitions for review of a final decision
of the Merit Systems Protection Board (“Board”) denying
his request to make a deposit to the Civil Service Retire-
ment System (“CSRS”). 1 Because the Board’s decision is
in accordance with the law and is supported by substan-
tial evidence, we affirm.
BACKGROUND
Mr. Orcino was employed in various positions at the
United States Naval Station at Subic Bay in the Philip-
pines from 1967 to 1992. In 2008, Mr. Orcino sought to
make a deposit into the CSRS for his prior service in
accordance with 5 U.S.C. § 8334. The Office of Personnel
Management (“OPM”) denied his request because he was
not a current employee who was allowed to make a de-
posit. After OPM denied Mr. Orcino’s request for recon-
sideration, he appealed to the Board.
The Board issued an initial decision on February 25,
2011, holding that Mr. Orcino was not eligible to make a
deposit into the CSRS because he had not established
that his positions were covered by the Civil Service Re-
tirement Act (“CSRA”). Specifically, the Board deter-
mined that retirement deductions had never been taken
from Mr. Orcino’s earnings, those of his SF-50 forms that
were legible showed his positions were not covered by
1 Orcino v. Office of Pers. Mgmt., No. SF-0831-11-
0111-I-I (Feb. 25, 2011) (“Initial Decision”); Orcino v.
Office of Pers. Mgmt., No. SF-0831-11-0111-I-I (Sept. 30,
2011) (final order denying petition for review).
3 ORCINO v. OPM
CSRA, and on leaving Government service he had re-
ceived a lump-sum retirement payment indicating he was
covered under a different retirement system. Initial
Decision at 5-8. The Board further determined that
because Mr. Orcino is neither currently employed in a
position subject to civil service law, nor a former employee
who retains retirement annuity rights, he is ineligible to
make a deposit into the CSRS system under 5 U.S.C.
§ 8334. Id. at 8-9. The Board denied Mr. Orcino’s petition
for review on September 30, 2011, making the initial
decision final. This appeal followed.
DISCUSSION
Our scope of review in an appeal from a decision of
the Board is limited. We must affirm the Board’s decision
unless we find it to be arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law;
obtained without procedures required by law, rule, or
regulation having been followed; or unsupported by
substantial evidence. 5 U.S.C. § 7703(c).
Under 5 U.S.C. § 8334 and 5 C.F.R. § 831.112, former
Government employees may make credit deposits into the
CSRS for prior eligible service if they “retain[] civil ser-
vice retirement annuity rights . . . .” 5 C.F.R.
§ 831.112(a)(2). To qualify for a civil service retirement
annuity based on a separation after August 31, 1954, a
Government employee must complete at least five years of
qualified civilian service (“creditable service”), with at
least one of the last two years in a position covered by the
CSRA (“covered service”). See 5 U.S.C. §§ 8331, 8333,
8336, and 8338; Quiocson v. Office of Pers. Mgmt., 490
F.3d 1358, 1360 (Fed. Cir. 2007). Because there is no
indication in the record that any of Mr. Orcino’s positions
were in the covered service, he had no civil service re-
ORCINO v. OPM 4
tirement annuity rights to retain after separation. Thus,
he is not eligible to make a deposit under 5 U.S.C. § 8334.
See Dela Rosa v. Office of Pers. Mgmt., 583 F.3d 762, 765
(Fed. Cir. 2009).
Mr. Orcino argues that he is only required to have
creditable service, not covered service, to make a deposit
into the CSRS under 5 U.S.C. § 8334. Specifically, he
contends that 5 C.F.R. § 831.303(a) made all periods of
federal employment before October 1, 1982, covered by
the CSRA and creditable toward retirement. Mr. Orcino
is incorrect. Section 831.303(a) allows those already
covered by the CSRA to include certain creditable service
when calculating their civil service retirement annuity.
There is nothing in the language of 5 C.F.R. § 831.303(a)
to support Mr. Orcino’s argument that the regulation
retroactively converted “creditable service” into “covered
service” or changed who qualified for an annuity. Thus,
Mr. Orcino cannot rely on § 831.303(a) to circumvent the
covered service requirement of 5 U.S.C. § 8333(b).
This court has considered Mr. Orcino’s other argu-
ments and concludes that they are all without merit.
CONCLUSION
For the foregoing reasons, the Board’s decision is af-
firmed.
AFFIRMED