Castroverde v. Office of Personnel Management , 482 F. App'x 558 ( 2012 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
__________________________
WILSON CASTROVERDE,
Petitioner,
v.
OFFICE OF PERSONNEL MANAGEMENT,
Respondent.
__________________________
2012-3012
__________________________
Petition for review of the Merit Systems Protection
Board in case no.SF0831101038-I-1.
___________________________
Decided: May 10, 2012
___________________________
WILSON CASTROVERDE, of Zambales, Philippines, pro
se.
LARTEASE M. TIFFITH, Trial Attorney, Commercial
Litigation Branch, Civil Division, United States Depart-
ment of Justice, of Washington, DC, for respondent. With
him on the brief were TONY WEST, Assistant Attorney
General, JEANNE E. DAVIDSON, Director, and DONALD E.
KINNER, Assistant Director.
__________________________
CASTROVERDE v. OPM 2
Before PROST, MOORE, and O’MALLEY, Circuit Judges.
PER CURIAM.
Wilson Castroverde appeals from the Merit Systems
Protection Board (Board) decision affirming the denial of
his application for a retirement annuity and to make a
service credit deposit under the Civil Service Retirement
System (CSRS). For the reasons discussed below, we
affirm.
BACKGROUND
Mr. Castroverde worked as a diesel engine mechanic
for the Department of the Navy from 1966-1978. The
standard form for his retirement, Form SF-50, lists his
retirement plan as “other” or “none,” and states he is
entitled to twelve months of retirement pay for his
creditable service in accordance with the collective
bargaining act of January 8, 1976 (CBA).
In 2005, Mr. Castroverde filed an application for
retirement under the CSRS. The Office of Personnel
Management (OPM) concluded that he was not entitled to
a CSRS annuity or to make a service credit deposit under
CSRS. On appeal to the Board, the administrative judge
(AJ) affirmed OPM’s decision. The AJ held that Mr.
Castroverde could not make a deposit because he failed to
prove he was a current employee in a covered position or
that any of his previous positions were covered by CSRS.
Although Mr. Castroverde had the required five years of
creditable service, he failed to prove that at least one of
the last two years of his service was covered under CSRS.
The AJ also found that Mr. Castroverde was ineligible for
a CSRS annuity because Congress excluded employees
subject to another government retirement system and Mr.
Castroverde was entitled to retirement under the CBA.
The full Board denied Mr. Castroverde’s petition for
3 CASTROVERDE v. OPM
review. He now appeals to our court. We have
jurisdiction under 28 U.S.C. § 1295(a)(9).
DISCUSSION
We must affirm the Board’s decision unless it is “(1)
arbitrary, 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).
On appeal, Mr. Castroverde contends that the Board
incorrectly required him to meet the definition of
“employee” under 5 C.F.R. § 831.112(a) because 5 C.F.R.
§ 831.303(a) independently entitles him to make a
deposit. In essence, Mr. Castroverde argues that he is
entitled to a CSRS annuity based on his creditable service
even if he was never employed in a CSRS-eligible
position.
We disagree. To be entitled to a CSRS retirement
annuity, an employee must complete at least five years of
creditable service with at least one of the last two years
prior to separation being in a position covered by CSRS. 5
U.S.C. §§ 8331(12), 8332, 8333. After reviewing Mr.
Castroverde’s SF-50 forms, the Board concluded that he
held various excepted service positions and was never in a
position covered by CSRS. Mr. Castroverde does not
dispute this finding. Indeed, he admits that he never held
a position covered by CSRS. Appellant’s Br. at 10. We
thus hold that Mr. Castroverde failed to show that the
Board’s decision denying him a CSRS annuity was
arbitrary, capricious, an abuse of discretion, or
unsupported by substantial evidence.
Mr. Castroverde’s claim that he is entitled to make a
deposit pursuant to 5 C.F.R. § 831.303(a) and 5 U.S.C.
CASTROVERDE v. OPM 4
§ 8334(c) fails for the same reason. Although an employee
credited with civilian service for which retirement
deductions were not made may later deposit those
deductions and thereby obtain credit towards a
retirement annuity, 5 U.S.C. § 8334(c), the right to do so
is limited to a person designated as an “employee.” The
associated regulation defines “employee” as either (1) a
person currently employed in a CSRS-eligible position or
(2) a person formerly employed in such a position who is
entitled to a CSRS annuity. 5 C.F.R. § 831.112(a). This
regulation “allows a ‘former employee’ to make a deposit
only if that former employee is already covered by the
CSRS.” Dela Rosa v. Office of Pers. Mgmt., 583 F.3d 762,
765 (Fed. Cir. 2009). Mr. Castroverde is incorrect that 5
C.F.R. § 831.303(a) allows him to make a deposit based
solely on his creditable service regardless of whether he
has ever held a position covered by CSRS.
Finally, Mr. Castroverde does not dispute the Board’s
finding that he was entitled to retirement under the CBA.
Under 5 U.S.C. § 8331(L)(ii), an employee is excluded
from coverage under CSRS if he or she is “subject to
another retirement system for Government employees.”
Mr. Castroverde failed to show that the Board erred by
concluding that he is ineligible for CSRS because he is
subject to another government employee retirement
system. We have considered Mr. Castroverde’s
arguments on appeal and find them to be without merit.
AFFIRMED
COSTS
No costs.