Fontilla v. Office of Personnel Management , 482 F. App'x 563 ( 2012 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
__________________________
CRESENCIO FONTILLA,
Petitioner,
v.
OFFICE OF PERSONNEL MANAGEMENT,
Respondent.
__________________________
2012-3013
__________________________
Petition for review of the Merit Systems Protection
Board in No. SF0831110050-I-1.
__________________________
Decided: May 11, 2012
__________________________
CRESENCIO FONTILLA, of Zambales, Philippines, pro
se.
ANTONIA R. SOARES, 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 STEVEN J.
GILLINGHAM, Assistant Director.
__________________________
2 FONTILLA v. OPM
Before RADER, Chief Judge, PLAGER and LINN, Circuit
Judges.
PER CURIAM.
Cresencio Fontilla (“Fontilla”) appeals from a final de-
cision of the Merit Systems Protection Board (“Board”)
finding that he is not eligible to make a deposit into the
Civil Service Retirement and Disability Fund (“Fund”).
Because the Board’s decision is in accordance with the law
and is supported by substantial evidence, this court
affirms.
BACKGROUND
Fontilla held a series of excepted service appoint-
ments at the U.S. Navy Public Works Center, Subic Bay,
Philippines from 1967 to 1986 when he was terminated
based on his physical inability to perform his assigned
tasks. During this employment, Fontilla’s SF-50 forms—
which are issued when personnel action is taken—
designated his retirement status as either “none” or
“other,” and no deductions were ever withheld for the
Civil Service Retirement System (“CSRS”). Fontilla
applied for retirement under the CSRS in 2006, but the
Office of Personnel Management (“OPM”) denied his
application because none of his positions were subject to
the Civil Service Retirement Act (“Act”).
Fontilla subsequently filed an Application to Make
Deposit or Redeposit with OPM in 2007 and again in
2008, which OPM denied because he was not a current
employee in a covered position. Fontilla then appealed to
the Board, which issued its initial decision affirming
OPM’s decision on January 24, 2011. The Board denied
Fontilla’s petition for review on September 7, 2011, mak-
ing the initial decision final. The Board found that Fon-
tilla was not a current employee and was not a covered
employee eligible to make a deposit. The Board also
found that 5 C.F.R. § 831.201(a) precluded coverage of
FONTILLA v. OPM 3
Fontilla’s non-permanent service under the Act. Fur-
thermore, the Board found that Fontilla failed to show
that his service was ever covered by the Act because his
SF-50 forms never indicated that his positions were
covered and no CSRS retirement contributions were ever
withheld.
Fontilla timely petitioned this court for review. We
have jurisdiction under 28 U.S.C. § 1295(a)(9).
DISCUSSION
This court must affirm a decision of the Board unless
it is “(1) arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law; (2) obtained with-
out procedures required by law, rule, or regulation having
been followed; or (3) unsupported by substantial evi-
dence.” 5 U.S.C. § 7703(c). “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. NLRB, 305 U.S. 197, 229 (1938)).
Fontilla, as the applicant for retirement benefits, had “the
burden of proving, by a preponderance of the evidence,
[his] entitlement to the benefits.” 5 C.F.R.
§ 1201.56(a)(2). A preponderance of the evidence is “the
degree of relevant evidence that a reasonable person,
considering the record as a whole, would accept as suffi-
cient to find that a contested fact is more likely to be true
than untrue.” Id. § 1201.56(c)(2).
“To qualify for a civil service retirement annuity, a
government employee ordinarily must complete at least
five years of creditable service, and at least one of the two
years prior to separation must be ‘covered service,’ i.e.,
service that is subject to the [Act].” Quiocson v. Office of
Pers. Mgmt., 490 F.3d 1358, 1360 (Fed. Cir. 2007); 5
U.S.C. § 8333. Service under temporary or indefinite
4 FONTILLA v. OPM
appointments is excluded from coverage by the Act.
Quiocson, 490 F.3d at 1360; 5 C.F.R. § 831.201(a).
Fontilla does not appear to dispute the facts on which
the Board relied. There is also no disagreement that
Fontilla’s service was “creditable.” The dispute is
whether that creditable service, independent of whether it
was covered service, provides Fontilla with rights under
the Act.
Fontilla’s main argument on appeal is that he is only
required to have creditable service to make a contribution
to the Fund. Based on 5 C.F.R. § 831.303(a), he argues
that all creditable service, regardless of whether it was
covered, is included to calculate a benefit under the Act.
He argues that § 831.303(a) retroactively made all periods
of federal employment before October 1, 1982 covered by
the Act and creditable toward retirement. Fontilla as-
serts that when his position became covered by the Act, it
was not subject to CSRS deductions, but it was subject to
deposits under 5 U.S.C. § 8334(c). Moreover, he argues
that 5 C.F.R. § 831.303(a) waived the deposit requirement
for his service before October 1, 1982, and his rights
under the Act attached when he left federal employment.
Fontilla also argues that the requirements of 5 C.F.R.
§ 831.112(a) do not apply to him because he is not a
current employee, is not attempting to make a deposit
under 5 U.S.C. § 8334(a), and seeks to make a deposit for
service before October 1, 1982. He interprets 5 C.F.R.
§ 831.303(a)—addressing service before October 1, 1982—
to control deposits under 5 U.S.C. § 8334(c), and 5 C.F.R.
§ 831.112(a) to control deposits under 5 U.S.C. § 8334(a).
In the alternative, Fontilla argues that he met the re-
quirements of 5 C.F.R. § 831.112(a).
The government argues that because Fontilla’s service
was not covered, he was not eligible to make a deposit.
The government contends that 5 C.F.R. § 831.201(a) bars
FONTILLA v. OPM 5
temporary or indefinite employees from the CSRS, and no
evidence indicates that Fontilla was covered by the Act.
The government further contends that 5 C.F.R.
§ 831.303(a) does not convert creditable service into
covered service, and asserts that individuals that are not
covered cannot make a deposit under 5 U.S.C. § 8334(c).
The government’s interpretation of the statutes and
regulations is correct. An individual must be an “em-
ployee” as defined by 5 C.F.R. § 831.112(a) to make a
deposit under any provision of 5 U.S.C. § 8334, meaning
that the requirements of 5 C.F.R. § 831.112(a) are not
limited by date and do not apply only to 5 U.S.C.
§ 8334(a). See 5 C.F.R. § 831.112(a) (“A person may make
a deposit or redeposit under section 8334 of title 5, United
States Code, if he or she is an ‘employee.’”). Section
831.112(a) requires an employee to be either a current
employee or a “former employee . . . who retains civil
service retirement annuity rights.” Id. An individual
cannot retain rights if the individual never had the rights.
Dela Rosa v. Office of Pers. Mgmt., 583 F.3d 762, 765
(Fed. Cir. 2009). Because there is no indication in the
record that Fontilla was ever covered by the Act, he had
no rights to retain under it. Thus, he cannot be consid-
ered an employee under § 831.112(a), which is a precondi-
tion of any request to make a deposit. See id.
Additionally, Fontilla’s temporary or indefinite appoint-
ments were specifically excluded from CSRS coverage by 5
C.F.R. § 831.201(a). See Quiocson, 490 F.3d at 1360.
Therefore, Fontilla is not eligible to make a deposit under
5 U.S.C. § 8334(c).
5 C.F.R. § 831.303(a) allows those already covered by
the Act to include certain creditable service in calculating
the annuity. There is nothing in the language of 5 C.F.R.
§ 831.303(a) to support the argument that it retroactively
converted “creditable service” into “covered service” or
changed who qualified for an annuity. Section 831.303(a)
6 FONTILLA v. OPM
does not supplant § 831.112 and cannot circumvent the
covered service requirement of 5 U.S.C. § 8333(b). Be-
cause 5 C.F.R. § 831.303(a) is inapplicable to Fontilla, he
cannot rely on it either to deem his creditable service to
be covered service or to waive any deposit requirement.
This court has considered Fontilla’s other arguments
and concludes that they are without merit.
CONCLUSION
For the foregoing reasons, this court affirms the
Board’s decision.
AFFIRMED
COSTS
No costs.