Izon v. Opm , 582 F. App'x 885 ( 2014 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
JUANITO IZON,
Petitioner,
v.
OFFICE OF PERSONNEL MANAGEMENT,
Respondent.
______________________
2014-3094
______________________
Petition for review of the Merit Systems Protection
Board in No. SF-0831-13-4901-I-1.
______________________
Decided: November 7, 2014
______________________
JUANITO IZON, of San Juan, San Narciso, Philippines,
pro se.
GREGG PARIS YATES, Trial Attorney, Commercial Liti-
gation Branch, Civil Division, United States Department
of Justice, of Washington, DC, for respondent. With him
on the brief were STUART F. DELERY, Assistant Attorney
General, ROBERT E. KIRSCHMAN, JR., Director, and
DEBORAH A. BYNUM, Assistant Director.
______________________
2 IZON v. OPM
Before REYNA, CLEVENGER, and WALLACH, Circuit Judges.
PER CURIAM.
Juanito Izon pro se appeals the Merit Systems Protec-
tion Board’s decision affirming the Office of Personnel
Management’s denial of his application for an annuity
under the Civil Service Retirement System. To prevail,
Mr. Izon must establish that he completed at least five
years of creditable service with at least one of the last two
years before separation being completed in a “covered
service.” Because Mr. Izon has not shown that any of his
employment constituted a “covered service,” we affirm.
BACKGROUND
Mr. Izon worked for the Department of the Navy at
the Subic Bay Naval Base in the Philippines from 1966 to
1992. In 1992, he resigned from his position as an Elec-
tronics Mechanic to take early retirement. Retirement
deductions were not withheld from Mr. Izon’s pay during
his employment, and he appears to have been eligible for
a lump sum retirement benefit equivalent to 85% of 24
months of basic pay under the U.S. Forces early retire-
ment plan.
In February 2013, Mr. Izon applied for a deferred re-
tirement annuity under the Civil Service Retirement
System (CSRS). The Office of Personnel Management
(OPM) denied Mr. Izon’s application. He then appealed to
the Merit System Protection Board (the “Board”), which
affirmed on the basis that Mr. Izon did not establish that
any of his employment is a “covered service” under the
Civil Service Retirement Act (CSRA). Mr. Izon timely
appealed to this Court. We have jurisdiction under 28
U.S.C. § 1295(a)(9) (2011).
DISCUSSION
We must affirm the Board’s decision unless it was “(1)
arbitrary, capricious, an abuse of discretion, or otherwise
IZON v. OPM 3
not in accordance with law; (2) obtained without proce-
dures required by law, rule, or regulation having been
followed; or (3) unsupported by substantial evidence.” 5
U.S.C. § 7703(c); Dela Rosa v. Office of Pers. Mgmt., 583
F.3d 762, 764 (Fed. Cir. 2009). To qualify for a civil ser-
vice retirement annuity, Mr. Izon must have completed at
least five years of “creditable” service, of which at least
one of his last two years before separation were completed
in a “covered service.” 5 U.S.C. § 8333; Quiocson v. Office
of Pers. Mgmt., 490 F.3d 1358, 1360 (Fed. Cir. 2007). Most
service is “creditable,” but not all is “covered.” Rosete v.
Office of Pers. Mgmt., 48 F.3d 514, 516 (Fed. Cir. 1995).
To be “covered,” the service must be subject to the Civil
Service Retirement Act, and the employee must deposit
part of his pay into the Civil Service Retirement and
Disability Fund (CSRDF). Id.
On appeal, Mr. Izon appears to argue that, under 5
U.S.C. § 8334(c) and 5 C.F.R. § 831.303(a), he should be
allowed to retroactively contribute to the CSRDF, and
thereby become eligible for a CSRS annuity. Section
831.303(a) provides, in part:
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
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.
4 IZON v. OPM
Mr. Izon appears to contend that under this regulation he
is an “employee,” and as such is permitted to retroactively
contribute to the CSDRF for his service until October 1,
1982.
Whether Mr. Izon qualifies as an “employee” under
section 831.303(a) and 5 U.S.C. § 8334(c) is determined
according to 5 C.F.R. § 831.112(a). Dela Rosa, 583 F.3d at
765; 5 C.F.R. § 831.303(a). A prerequisite for an individu-
al to qualify as an “employee” under § 831.112(a) is that
the individual’s position be a “covered service.” Id. Having
reviewed the record before us, we are unable to find any
basis to hold that any of Mr. Izon’s service of employment
was a “covered service.” For example, his SF-50s state
that throughout his employment, his retirement plan was
either “none” or “other,” indicating that his position was
not a “covered service.” Nor has Mr. Izon cited to any
other evidence indicating that his position was nonethe-
less a “covered service.” As a result, Mr. Izon is not an
“employee” for the purpose of the authority to make
retroactive deposits under 5 U.S.C. § 8334(c) and 5 C.F.R.
§ 831.303(a). For this reason we affirm the decision of the
Board.
CONCLUSION
Because Mr. Izon has not shown that any of his em-
ployment was a “covered service,” we affirm the Board’s
decision affirming OPM’s denial of Mr. Izon’s application
for annuity under CSRS.
AFFIRMED
COSTS
Each party shall bear its own costs.