Dela Cruz v. Office of Personnel Management , 425 F. App'x 881 ( 2011 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
__________________________
SIXTO DELA CRUZ,
Petitioner,
v.
OFFICE OF PERSONNEL MANAGEMENT,
Respondent.
__________________________
2010-3165
__________________________
Petition for review of the Merit Systems Protection
Board in Case No. SF0831090823-I-1.
___________________________
Decided: April 8, 2011
___________________________
SIXTO DELA CRUZ, of Zambales, Philippines, pro se.
J. HUNTER BENNETT, Trial Attorney, Commercial Liti-
gation Branch, Civil Division, United States Department
of Justice, of Washington, DC, for respondent. With him
on the brief were TONY WEST, Assistant Attorney General,
JEANNE E. DAVIDSON, Director, and DEBORAH A. BYNUM,
Assistant Director.
__________________________
DELA CRUZ v. OPM 2
Before BRYSON, MAYER, and DYK, Circuit Judges.
PER CURIAM.
DECISION
Sixto Dela Cruz appeals from a decision of the Merit
Systems Protection Board affirming a ruling of the Office
of Personnel Management (“OPM”) that he is not eligible
for benefits under the Civil Service Retirement System
(“CSRS”). We affirm.
BACKGROUND
Mr. Dela Cruz, a citizen of the Philippines, was em-
ployed in various positions by the Department of the
Navy at the former U.S. Naval Base at Subic Bay in the
Philippines. Those positions included Senior Guard
(September 1946 to June 1948), Machinist (September
1948 to November 1948), Guard (November 1948 to May
1949), Laborer (June 1965 to September 1965), and
Motorboat Captain (December 1965 to April 1981). His
separation from the position of Motorboat Captain in 1981
was due to his attainment of the mandatory retirement
age. In 1985, Mr. Dela Cruz sought a CSRS retirement
annuity by filing a Standard Form 2801, Application for
Immediate Retirement under the Civil Service Retire-
ment System. OPM denied Mr. Dela Cruz’s request for an
annuity after finding that he had never been employed in
a position that was subject to the Civil Service Retirement
Act (“CSRA”).
In 2008, Mr. Dela Cruz submitted a Standard Form
2803, Application to Make Deposit or Redeposit (Civil
Service Retirement System). He sought to make a deposit
in order to make up for CSRS deductions that he believed
should have been taken from his salary during his em-
3 DELA CRUZ v. OPM
ployment between 1965 and 1981. OPM denied that
request on the ground that Mr. Dela Cruz was not cur-
rently employed in a position subject to retirement deduc-
tions, nor was he entitled to an annuity. OPM explained
that he was not entitled to an annuity because his credit-
able civilian service was not covered under the CSRS. On
appeal to the Board, the administrative judge determined
that Mr. Dela Cruz was not eligible to make CSRS depos-
its because his employment had been temporary or in-
definite and that he was therefore not in “covered service”
for purposes of CSRS benefits. The administrative judge
noted that the Standard Form 50 (“SF-50”), Notice of
Personnel Action, that was issued at the time of Mr. Dela
Cruz’s retirement indicated that he was covered under a
non-CSRS retirement plan. The full Board denied Mr.
Dela Cruz’s petition for review. This appeal followed.
DISCUSSION
Under circumstances prescribed by statute and regu-
lation, an employee with civilian service for which retire-
ment deductions were not made may make a later deposit
of those deductions and thereby obtain credit toward a
retirement annuity. 5 U.S.C. § 8334. The right of deposit
is limited to persons designated as “employees.” That
term is defined to mean persons currently employed in
CSRS-eligible positions or persons formerly employed in
such positions who are eligible for a retirement annuity.
5 C.F.R. § 831.112(a). In order to be eligible for a retire-
ment annuity, an employee must have completed at least
five years of “creditable service.” 5 U.S.C. §§ 8331(12),
8332, 8333(a). In addition, at least one of the final two
years of employment prior to separation must have been
“covered service,” i.e., “creditable civilian service during
which [the employee] is subject to the [CSRA].” Id.§ 8333(b).
DELA CRUZ v. OPM 4
Mr. Dela Cruz argues that an employee is eligible for
a CSRS retirement annuity merely by virtue of undertak-
ing creditable service during one of the final two years of
employment prior to separation. That position has been
squarely rejected by this court. Herrera v. United States,
849 F.2d 1416, 1417 (Fed. Cir. 1988). The “one-out-of-
two” requirement refers to “covered service,” i.e., service
that is subject to the Civil Service Retirement Act. Id.The administrative judge found that Mr. Dela Cruz’s final
two years of service as a Motorboat Captain, while credit-
able, were not covered under the CSRS. 1 That finding is
clearly supported by the administrative record.
The administrative judge found that Mr. Dela Cruz’s
appointment as a Motorboat Captain from 1965 to 1981
was nonpermanent or indefinite. Service under indefinite
appointments made after 1955 is excluded from CSRS
retirement coverage. 5 C.F.R. § 831.201(a)(13); Quiocson
v. Office of Pers. Mgmt., 490 F.3d 1358, 1360 (Fed. Cir.
2007). Mr. Dela Cruz contends that, as of his reappoint-
ment to the position of Laborer in September 1965, he
was in a position of covered service under the CSRA.
However, the case on which Mr. Dela Cruz relies, Avila v.
Office of Personnel Management, 79 F.3d 128, 130 (Fed.
Cir. 1996), clearly states that certain types of employees
are excluded from CSRS coverage. As previously men-
1 We need not consider Mr. Dela Cruz’s employ-
ment prior to his appointment to the position of Motor-
boat Captain because his cumulative service in all other
positions did not exceed five years. 5 U.S.C. § 8333(a).
Thus, he cannot be eligible for a CSRS retirement annuity
based on any separations from the Navy prior to his
mandatory retirement in 1981. See Guevara v. United
States, 229 Ct. Cl. 595, 598 (1981) (denying CSRS annuity
for initial separation based on failure to meet five-year
creditable service requirement and for later separation
based on failure to meet “one-out-of-two” requirement).
5 DELA CRUZ v. OPM
tioned, those exclusions include employees with nonper-
manent or indefinite appointments. Mr. Dela Cruz ar-
gues that much of his employment with the Navy did not
occur under an indefinite appointment because he worked
full-time. His full-time status, however, does not make
his position subject to the CSRA. If an employee’s posi-
tion is indefinite, he is not eligible for an annuity under
the CSRS, regardless of whether he is employed full-time.
5 C.F.R. § 831.201(a)(13).
The administrative judge’s decision also finds support
in Mr. Dela Cruz’s SF-50 form pertaining to his final
separation from the Navy. That form indicates that his
retirement benefits were not “CS” or “Civil Service Re-
tirement System.” Rather, he received “other” retirement
benefits, specified as 18 months of retirement pay corre-
sponding to his creditable service “in accordance with the
[Collective Bargaining Agreement] of 11 April 1979.”
Receipt of retirement benefits under a non-CSRS plan
indicates that the employee’s service was not “covered
service.” Quiocson, 490 F.3d at 1360. We have specifi-
cally held that a severance package such as the one given
to Mr. Dela Cruz constitutes “another retirement system”
that precludes eligibility for a retirement annuity under
the CSRS. Dela Rosa v. Office of Pers. Mgmt., 583 F.3d
762, 765-66 (Fed. Cir. 2009); see 5 U.S.C. § 8331(1)(ii).
Mr. Dela Cruz asserts that the statutory provision al-
lowing employees to make deposits under the CSRS, 5
U.S.C. § 8334(c), does not require that those employees
meet the covered service requirement of 5 U.S.C.
§ 8333(b). That argument has been considered and re-
jected by a previous decision of this court. In Dela Rosa v.
Office of Personnel Management, 583 F.3d at 765, we held
that a former employee not covered under the CSRS is not
entitled to make a deposit pursuant to 5 U.S.C. § 8334(c).
DELA CRUZ v. OPM 6
We interpreted OPM regulations to restrict deposits to
employees that are already eligible for CSRS retirement
annuities. Id.; see 5 C.F.R. § 831.112(a)(2).
We have considered Mr. Dela Cruz’s remaining argu-
ments and find them without merit. Accordingly, we
uphold the decision of the Board.
No costs.
AFFIRMED