United States Court of Appeals for the Federal Circuit
2007-3084
ROGIE T. QUIOCSON,
Petitioner,
v.
OFFICE OF PERSONNEL MANAGEMENT,
Respondent.
Rogie T. Quiocson, 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 Peter D. Keisler, Assistant Attorney General, Jeanne E. Davidson, Director, and
Bryant G. Snee, Deputy Director.
Appealed from: United States Merit Systems Protection Board
United States Court of Appeals for the Federal Circuit
2007-3084
ROGIE T. QUIOCSON
Petitioner,
v.
OFFICE OF PERSONNEL MANAGEMENT,
Respondent.
___________________________
DECIDED: June 19, 2007
___________________________
Before SCHALL and BRYSON, Circuit Judges, and HOLDERMAN, Chief District
Judge. *
BRYSON, Circuit Judge.
Rogie T. Quiocson appeals from a decision of the Merit System Protection
Board, Docket No. SF-0831-06-0449-1-I, affirming a ruling by the Office of Personnel
Management (“OPM”) that denied her application for a survivor annuity under the Civil
Service Retirement System (“CSRS”). We affirm.
I
Ms. Quiocson’s late husband, Rodolfo Quiocson, worked for the Department of
the Navy at the U.S. Naval Ship Repair Facility at Subic Bay in the Philippines from
*
Honorable James F. Holderman, Chief Judge, United States District Court
for the Northern District of Illinois, sitting by designation.
August 16, 1963, until his death on September 17, 1991. The record shows that his
original appointment in 1963 was to an excepted service part-time position, and that he
received six additional part-time excepted service appointments between 1963 and July
1965. In September 1965 he was converted to an indefinite appointment in the
excepted service, and he received three promotions between February 1966 and
October 1977 (all to excepted service positions). In March 1984, Mr. Quiocson was
reassigned to the position of Marine Machinery Mechanic, a position that he held until
his death in 1991. Mr. Quiocson’s appointment forms for those appointments variously
refer to his retirement coverage as “none,” “not applicable,” or “other.” No deductions
for CSRS retirement benefit contributions were ever withheld from his pay. Upon Mr.
Quiocson’s death, his designated beneficiaries received a death benefit and severance
pay in accordance with the Filipino Employment Personnel Instructions (“FEPI”).
Ms. Quiocson applied to OPM for a CSRS survivor annuity in April 2005. OPM
determined that none of Mr. Quiocson’s federal service was covered by CSRS and
denied the application. Ms. Quiocson appealed to the Merit Systems Protection Board,
which affirmed OPM’s decision.
II
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 Civil
Service Retirement Act. See 5 U.S.C. § 8333; Rosete v. Office of Pers. Mgmt., 48 F.3d
514, 516 (Fed. Cir. 1995). As the Board found, none of Mr. Quiocson’s service
constituted “covered service” such as to entitle him to CSRS benefits. Instead, Mr.
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Quiocson’s service was rendered exclusively under temporary and indefinite
appointments. Service under those types of appointments is excluded from CSRS
retirement coverage under OPM regulations. See 5 C.F.R. § 831.201(a). Moreover,
Mr. Quiocson’s appointment forms indicate that his positions were not covered by the
CSRS and that no CSRS retirement contributions were withheld from his pay. Mr.
Quiocson was covered by a different retirement system, the FEPI. His receipt of
benefits under a non-CSRS plan indicates that his service was not covered under the
CSRS. See 5 U.S.C. § 8331(1)(ii); De Guzman v. Dep’t of the Navy, 231 Ct. Cl. 1005,
1005 (1982); Reyes v. Office of Pers. Mgmt., 60 M.S.P.R. 172, 175 (1993), aff’d, 29
F.3d 645 (Fed. Cir. 1994) (unpublished table decision).
Ms. Quiocson argues that because Mr. Quiocson died while in service he did not
need to meet the covered service requirement. She bases her argument on a statutory
provision applicable to those separated from service because of death. See 5 U.S.C.
§ 8333(b). The Board has held, however, that the section 8333(b) exception applies
only to waive the time-of-service requirement for a covered employee; it does not
eliminate the requirement that the employee serve in a covered position. Mangaliag v.
Office of Pers. Mgmt., 65 M.S.P.R. 227, 231 (1994). The legislative history of that
provision supports the Board’s interpretation. It indicates that the exception was
created to address the problem of a covered employee who is separated as a result of
death or disability and was out of the service for a period of time before his separation.
In such a case, the exception in section 8333(b) waives the requirement that the
employee complete one year of covered service within the two-year period before his
separation. S. Rep. No. 84-1787, at 7 (1956). Mr. Quiocson, however, never served in
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a covered position. To the contrary, the position he held at the time of his death was an
indefinite appointment position. Pursuant to statute, 5 U.S.C. § 8347(g), OPM has
promulgated a regulation that excludes persons holding indefinite appointments from
CSRS retirement coverage, 5 C.F.R. § 831.201(a)(13). Ms. Quiocson’s interpretation of
section 8333(b), if adopted, would have the effect of converting indefinite appointments
into covered positions for all persons separated as a result of death or disability,
contrary to the statutory and regulatory exclusion from coverage of all employees
holding indefinite appointments. Therefore, the fact that Mr. Quiocson was separated
from the service by death does not affect Ms. Quiocson’s eligibility for CSRS benefits.
Ms. Quiocson also argues that the Board erred in denying her request to make a
deposit on her husband’s behalf so as to overcome the problem that no CSRS
deductions were withheld from his pay. Her argument, however, is based on a faulty
premise. The absence of deductions is an indication that an employee was not serving
in a covered position. A retroactive deposit does not convert a non-covered position
into a covered position.
Finally, Ms. Quiocson argues that Mr. Quiocson’s assignments to tenure group 2
upon his promotion in 1966 and to tenure group 1 upon his promotion in 1968 establish
that his position qualified as “covered service.” That is not the case. Tenure group
assignments establish the order of retention during a reduction-in-force, but they do not
establish that a particular position is “covered service.”
Because the Board’s finding that Mr. Quiocson never served in a covered
position was supported by substantial evidence, we uphold the Board’s decision.
AFFIRMED.
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