Dominico v. Opm , 626 F. App'x 270 ( 2015 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
RICARDO DOMINICO,
Petitioner
v.
OFFICE OF PERSONNEL MANAGEMENT,
Respondent
______________________
2015-3100
______________________
Petition for review of the Merit Systems Protection
Board in No. SF-0831-14-0294-I-1.
______________________
Decided: September 11, 2015
______________________
RICARDO DOMINICO, San Juan, San Narciso, Zam-
bales, Philippines, pro se.
ROBERT C. BIGLER, Commercial Litigation Branch,
Civil Division, United States Department of Justice,
Washington, DC, for respondent. Also represented by
BENJAMIN C. MIZER, ROBERT E. KIRSCHMAN, JR., STEVEN J.
GILLINGHAM.
______________________
Before MOORE, REYNA, and TARANTO, Circuit Judges.
2 DOMINICO v. OPM
PER CURIAM.
Ricardo Dominico appeals from the final decision of
the Merit Systems Protection Board (“Board”) affirming
that Mr. Dominico does not qualify for a Civil Service
Retirement System (“CSRS”) annuity. Dominico v. Office
of Pers. Mgmt., No. SF-0831-14-0294-I-1, 2015 WL 268551
(M.S.P.B. Jan. 21, 2015). We affirm.
BACKGROUND
Mr. Dominico held a temporary appointment position
in the excepted service at the U.S. Naval Ship Repair
Facility in Subic Bay, Philippines from May 1976 to
January 1977. He received another temporary appoint-
ment in the excepted service in June 1977, which was
converted to an indefinite appointment in March 1980.
Sometime thereafter, his position became permanent, and
his employment continued until July 24, 1992, when he
was forced to retire due to a reduction in force. Except for
the five-month gap in 1977, his employment with the U.S.
Navy was continuous from 1976 to 1992. During his
service, he never deposited any of his pay into the Civil
Service Retirement and Disability Fund (“Fund”). Upon
retirement, he received retirement pay under the Filipino
Employment Personnel Instruction (“FEPI”), a retirement
system that is separate from CSRS. See Quiocson v.
Office of Pers. Mgmt., 490 F.3d 1358, 1360 (Fed. Cir.
2007).
In July 2013, Mr. Dominico applied for a retirement
annuity under CSRS. The Office of Personnel Manage-
ment (“OPM”) found Mr. Dominico ineligible for a CSRS
annuity for lack of “covered” service. Mr. Dominico ap-
pealed, and the OPM decision was affirmed by the admin-
istrative judge and then by the Board. Mr. Dominico
timely petitioned this Court for review. We have jurisdic-
tion under 28 U.S.C. § 1295(a)(9).
DOMINICO v. OPM 3
DISCUSSION
We affirm the Board’s decision unless it was “(1) arbi-
trary, capricious, an 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); see also Dela Rosa v. Office of Pers. Mgmt., 583
F.3d 762, 764 (Fed. Cir. 2009). “Substantial evidence is
‘such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.’” McEntee v.
Merit Sys. Prot. Bd., 404 F.3d 1320, 1325 (Fed. Cir. 2005)
(quoting Consol. Edison Co. v. Nat’l Labor Relations Bd.,
305 U.S. 197, 229 (1938)). Mr. Dominico, as the applicant
for retirement benefits, had “the burden of proving, by a
preponderance of the evidence, entitlement to the bene-
fits.” 5 C.F.R. § 1201.56(a)(2) (2015). 1 A preponderance of
the evidence is “[t]he degree of relevant evidence that a
reasonable person, considering the record as a whole,
would accept as sufficient to find that a contested fact is
more likely to be true than untrue.” Id. § 1201.56(c)(2).
To qualify for a CSRS annuity, Mr. Dominico must
have completed at least five years of “creditable” service,
with at least one of his last two years before separation
completed in a “covered” service. Quiocson, 490 F.3d at
1360 (citing 5 U.S.C. § 8333). The Board found that
Mr. Dominico’s service was creditable, but never covered.
The Board rejected his argument that 5 C.F.R.
§ 831.303(a) retroactively converted his creditable service
occurring prior to October 1, 1982, into covered service.
1 All citations to the Code of Federal Regulations
are to the 2015 edition. Amendments to 5 C.F.R. part
1201 made in January 2015 are not applicable here
because this appeal was filed before March 30, 2015.
Practices and Procedures, 80 Fed. Reg. 4,489 (Jan. 28,
2015) (to be codified at 5 C.F.R. pt. 1201).
4 DOMINICO v. OPM
Mr. Dominico challenges the Board’s holding on two
grounds. First, he argues that his service with the Navy
was covered. Second, he argues that even if his service
was never covered, he is entitled to a CSRS annuity based
on his creditable service performed prior to October 1,
1982, by operation of law. We address these arguments in
turn.
First, substantial evidence supports the Board’s find-
ing that Mr. Dominico was never covered by CSRS.
“Covered service only includes an appointment that is
subject to the [Civil Service Retirement Act (‘Act’)] and for
which an employee must deposit part of his or her pay
into the [Fund].” Rosete v. Office of Pers. Mgmt., 48 F.3d
514, 516 (Fed. Cir. 1995). The record shows that the
appointments Mr. Dominico held were not subject to the
Act and that he did not make any deposit into the Fund.
For example, the retirement code on his Standard
Form-50s (“SF-50”) is either “None” or “Other” and the
annuitant indicator is listed as “Not Applicable,” which
support the Board’s finding that he was not covered by
the Act. And Mr. Dominico admits that he did not make
any deposit during his employment.
Nor has Mr. Dominico pointed to any evidence on ap-
peal that would rebut the Board’s finding that he was
subject to a retirement system other than CSRS and thus
not covered by CSRS. 5 U.S.C. § 8331(1)(ii) (excluding
from CSRS employees subject to another government
employee retirement system). The SF-50 documenting
Mr. Dominico’s involuntary termination on July 24, 1992,
indicates he received “16 months severance pay based on
15 years, 10 months and 5 days creditable service with
the U.S. Forces Philippines” in accordance with FEPI.
A. 27. See Dela Rosa, 583 F.3d at 765–66 (declining to
overrule the precedents establishing that an agreement
between the Federation of Filipino Civilian Employees
Association and the Armed Forces such as the FEPI is
“another retirement system” for the purposes of
DOMINICO v. OPM 5
§ 8331(1)(ii)). As such, substantial evidence supports the
Board’s determination.
We next turn to Mr. Dominico’s argument that he is
entitled to a CSRS annuity for his service prior to Octo-
ber 1, 1982, even without any covered service, by opera-
tion of 5 C.F.R. § 831.303(a). His argument appears to be
that (i) he would have been a covered employee from 1976
to 1982 but for his failure to make a deposit into the
Fund, and (ii) the second sentence of § 831.303(a) cured
this deficiency. Appellant’s Br. 7–8, 10–11. He argues
that even though his application for a CSRS annuity was
based solely on his service from 1976 to his “involuntary
separation” in 1982, the Board erroneously looked to his
entire service period which ended in 1992 for his coverage
determination. 2 Id. 2, 10.
We disagree with Mr. Dominico’s interpretation of
§ 831.303(a), 3 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
under subchapter III of chapter 83 of title 5, Unit-
ed States Code; however, if the employee, Mem-
ber, or survivor does not elect either to complete
2 The service period is relevant to determining an-
nuity eligibility because at least one of the last two years
prior to separation must be from a position covered by
CSRS. Mr. Dominico was continuously employed with the
Navy from 1978 to 1992, and the Board found that he
never held a covered position.
3 Section 831.303(a) has remained substantively the
same for purposes of this case since its promulgation in
1982.
6 DOMINICO v. OPM
the deposit describes [sic] by section 8334(c) of ti-
tle 5, United States Code, or to eliminate the ser-
vice 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 noncontributory service.
(emphasis added). We have already held that
§ 831.303(a) “allows those already covered by the Act to
include certain creditable service in calculating the annui-
ty.” Fontilla v. Office of Pers. Mgmt., 482 F. App’x 563,
565 (Fed. Cir. 2012) (citing 5 C.F.R. § 831.112(a) which
defines the term “employee”) (emphasis in original).
Mr. Dominico argues that the laws and regulations from
1982 should apply, presumably to avoid § 831.112(a),
which was promulgated in 1991. Appellant’s Br. 10. He
points to the definition of an “employee” in 5 U.S.C.
§ 8331(1)(A), which incorporates the definition from
5 U.S.C. § 2105(a). Id. 7. But § 8331(1)(ii) expressly
excludes individuals subject to another government
employee retirement system from the definition of an
“employee.” As discussed earlier, Mr. Dominico falls into
this exception, and consequently, is not an “employee”
subject to § 831.303(a) under the § 8331 definition.
We have considered Mr. Dominico’s additional argu-
ments and conclude that they do not warrant a different
result. We conclude that the Board properly ruled that
Mr. Dominico is not eligible for a CSRS annuity. The
decision of the Board is affirmed.
AFFIRMED.
COSTS
No costs.