Remorin v. Office of Personnel Management

PER CURIAM. Federico Remorin (“Remorin”) petitions for review of a final order of the Merit Systems Protection Board (“Board”). The Board affirmed an Office of Personnel Management (“OPM”) determination that Remorin was ineligible to make a deposit to the Civil Service Retirement and Disability Fund (“Fund”). We affirm. BACKGROUND In 1959, Remorin was hired by the Department of the Navy (“Navy”) as an asphalt plant operator in Subic Bay, Philippines, under an indefinite excepted service appointment. He was subsequently transferred or promoted several times, each time to another temporary or indefinite excepted appointment. On February 7, 1992, Remorin’s appointment was terminated due to a reduction in force. On June 22, 2007, Remorin submitted an application to OPM seeking to make a deposit to the Fund so as to be eligible to participate in the Civil Service Retirement System (“CSRS”). By letters dated September 14, 2007, and March 19, 2008, OPM denied Remorin’s application on the ground that he had never served in a position covered by CSRS. Remorin appealed, and on July 22, 2008, a Board administrative judge affirmed. On October 16, 2008, 110 M.S.P.R. 270, the full Board declined to reconsider the initial decision. We have jurisdiction under 28 U.S.C. § 1295(a)(9). DISCUSSION Our review of Board decisions is limited. 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); see also Lary v. U.S. Postal Serv., 472 F.3d 1363, 1366-67 (Fed.Cir.2006). Under 5 U.S.C. § 8334(c), an “employee” may make a CSRS deposit to receive credit for years of service during which time retirement deductions were not made. OPM has promulgated regulations defining “employee” for this purpose as either a current employee in a covered position, or a former employee who obtained retirement annuity rights pursuant to a previous separation from a covered position. 5 C.F.R. § 831.112(a). There is no question that Remorin was not employed in a covered position at the time of his application. The Board found, and Remorin did not dispute, that all of Remorin’s appointments from 1952 through 1992 “were either NTE (not to exceed) appointments] or indefinite appointments] in the excepted service.” Pursuant to statutory authority, OPM’s regulations specifically exclude from CSRS coverage temporary and indefinite appointments. 5 C.F.R. § 831.201(a)(1), (2), (6), (13), and (14); see also 5 U.S.C. § 8347(g); Rosete v. Office of Pers. Mgmt., 48 F.3d 514, 519 (Fed.Cir.1995). Because Remorin was never separated from a covered position, the Board correctly determined that he was not entitled to make a CSRS deposit in order to obtain a federal retirement annuity. We have repeatedly rejected similar claims by other former *591 employees of the Navy’s Philippines facilities. See, e.g., Quiocson v. Office of Pers. Mgmt., 490 F.3d 1358, 1360 (Fed.Cir.2007); Rosete, 48 F.3d at 520. The decision of the Board is affirmed. No costs.