NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2009-3157
ENRIQUE MATIAS,
Petitioner,
v.
OFFICE OF PERSONNEL MANAGEMENT,
Respondent.
Enrique Matias, of Olongapo City, Philippines, pro se.
David M. Hibey, Trial Attorney, Commercial Litigation 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 Reginald T. Blades, Jr., Assistant Director.
Appealed from: Merit Systems Protection Board
NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2009-3157
ENRIQUE MATIAS,
Petitioner,
v.
OFFICE OF PERSONNEL MANAGEMENT,
Respondent.
Petition for review of the Merit Systems Protection Board in SF0831080482-I-1.
___________________________
DECIDED: September 14, 2009
___________________________
Before LINN, FRIEDMAN, and DYK, Circuit Judges.
PER CURIAM.
Enrique Matias (“Matias”) petitions for review of a decision by the Merit Systems
Protection Board (“MSPB” or “Board”). The Board affirmed a decision of the Office of
Personnel Management (“OPM”). OPM found that Matias was not eligible to make a
deposit under the Civil Service Retirement System (“CSRS”). We affirm.
BACKGROUND
Matias worked for the Department of the Navy from July 1, 1965 to January 14,
1978 and from November 20, 1987 to May 29, 1992. From November 20, 1987 to May
29, 1992 Matias worked in various positions at the U.S. Navy Public Works Center at
Subic Bay, Philippines. Matias’s appointment ended on May 29, 1992, when his
employment was terminated by a reduction in force action. The SF-50 from his
termination states that his retirement plan is “other” and that he is entitled to severance
pay in accordance with the Filipino Employment Personnel Instructions.
On June 20, 2007, Matias submitted an application to make a deposit to the
CSRS pursuant to 5 U.S.C. § 8334(c). On September 24, 2007, OPM issued an initial
decision denying the application on the grounds that Matias was not currently employed
in a position subject to federal retirement deductions and was not otherwise entitled to
an annuity. On April 21, 2008, after Matias requested reconsideration, OPM again
denied his application.
Matias appealed OPM’s final decision to the MSPB, and on August 25, 2008, an
Administrative Judge (“AJ”) held that OPM “properly assessed whether the appellant
could make a deposit for his service under 5 U.S.C. § 8334(c),” and that Matias is
“ineligible to make a deposit.” Matias v. Office of Pers. Mgmt., No. SF-0831-08-0482-I-
1, slip op. at 5–6 (M.S.P.B. Aug. 25, 2008).
On March 4, 2009, the full Board denied his petition for review, and the AJ’s
decision became the final decision of the Board. Matias then timely petitioned for
review of the Board’s decision in our court. We have jurisdiction pursuant to 28 U.S.C.
§ 1295(a)(9) and 5 U.S.C. § 7703(b)(1). Lindahl v. Office of Pers. Mgmt., 470 U.S. 768,
791–99 (1985).
DISCUSSION
The scope of our review in an appeal from a Board decision is limited. We can
only set aside the Board's decision if it was “(1) arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law; (2) obtained without procedures
2009-3157 2
required by law, rule, or regulation having been followed; or (3) unsupported by
substantial evidence.” 5 U.S.C. § 7703(c). A claimant for benefits under the CSRS
must prove by a preponderance of the evidence that he is entitled to such benefits.
True v. Office of Pers. Mgmt., 926 F.2d 1151, 1153 (Fed. Cir. 1991).
This case is governed by our decision in Quiocson v. Office of Personnel
Management, 490 F.3d 1358 (Fed. Cir. 2007), where we held that “[t]o 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 Civil Service Retirement
Act.” Id. at 1360 (citing 5 U.S.C. § 8333). Matias attempts to rely on 5 U.S.C.
§ 8334(c), 5 C.F.R. § 831.111(b)(1)(ii), and 5 C.F.R. § 831.112(a)(2), but these sections
do not overcome the eligibility requirements of the CSRS detailed in 5 U.S.C. § 8333,
which requires a showing that the employee satisfies the “covered service” requirement.
“A retroactive deposit does not convert a non-covered position into a covered position.”
Quiocson, 490 F.3d at 1360. Substantial evidence supports the Board’s determination
that Matias did not serve in a position covered by the Civil Service Retirement Act “at
least one of the two years prior to separation.” We therefore affirm the Board’s decision
denying his request to make a CSRS deposit.
COSTS
No costs.
2009-3157 3