Alfredo M. Sera v. Office of Personnel Management

NOTE: Pursuant to Fed. Cir. R. 47.6, this disposition
is not citable as precedent. It is a public record.
United States Court of Appeals for the Federal Circuit
06-3105
ALFREDO M. SERA,
Petitioner,
v.
OFFICE OF PERSONNEL MANAGEMENT,
Respondent.
___________________________
DECIDED: June 12, 2006
___________________________
Before RADER, Circuit Judge, PLAGER, Senior Circuit Judge, and LINN, Circuit Judge.
PER CURIAM.
The Merit Systems Protection Board (Board) affirmed the Office of Personnel
Management’s (OPM) denial of Mr. Alfredo Sera’s application for deferred annuity under
the Civil Service Retirement Act (CSRA). Alfredo M. Sera v. Office of Pers. Mgmt., No.
SF-0831-05-0586-I-1 (M.S.P.B. Aug. 15, 2005) (Initial Decision); Alfredo M. Sera v.
Office of Pers. Mgmt., No. SF-0831-05-0586-I-1 (M.S.P.B. Nov. 3, 2005) (Final
Decision). Because this record shows no errors, this court affirms.
I.
Mr. Sera was employed at three different times in the Philippines by the United
States Air Force. Mr. Sera’s first period of employment, which was subject to CSRA,
was from October 8, 1945 until September 16, 1950. His second period of employment,
which was not subject to CSRA, was from December 19, 1950 until January 16, 1951.

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On January 12, 1953, he requested a refund of his retirement contributions. The refund
was authorized on January 28, 1953. Mr. Sera’s third period of employment, which
contained no retirement coverage, was from July 7, 1964 until his mandatory retirement
in June 1987. After receipt of the refund of his retirement contributions in January 1953,
the record does not show that he ever redeposited his refunded contributions while
serving in a position subject to CSRS, or had retirement contributions withheld from his
pay.
The Board held that during the first period of employment Mr. Sera was not
entitled to a deferred annuity under CSRA. He did not have the required five years of
creditable service. Moreover, he could not show that he redeposited his refunded
retirement contributions, or made any additional retirement contributions during any
subsequent periods of employment. In addition, the Board further held that because his
second period of employment was a temporary appointment of less than a year, it
likewise did not meet the requirements for creditable service. Furthermore, with respect
to the third period of employment, though the Board found Mr. Sera served for more
than the required five years, those years were not creditable because he served as an
indefinite appointment, which is specifically excluded from retirement coverage.
II.
This court possesses limited authority to review an appeal from the Board. The
Board’s decision must be affirmed unless it is: (1) arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with the 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) (2000); see Briggs v. Merit Sys. Protection
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Bd., 331 F.3d 1307, 1311 (Fed. Cir. 2003). “Substantial evidence” is defined as “such
relevant evidence as a reasonable mind might accept as adequate to support a
conclusion.” Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938).
III.
Mr. Sera has the burden of proof to demonstrate entitlement to retirement
benefits. Cheeseman v. Office of Pers. Mgmt., 791 F.2d 138, 141 (Fed. Cir. 1986). To
qualify for an annuity under either the 1942 or 1954 Retirement Act, Mr. Sera must have
had five years of creditable service ending with a position covered under CSRA. 5
U.S.C. § 8333(a)-(b) (2005). Indefinite appointments are specifically excluded from
retirement coverage. 5 C.F.R. § 831.201(a)(13) (2006). Covered service is only service
that is not specifically excluded from coverage by law or regulations, and for which an
employee must deposit part of his or her pay into the Civil Service Retirement and
Disability Fund. Rosete v. Office of Pers. Mgmt., 48 F.3d 514, 516 (Fed. Cir. 1995)
(citing Noveloso v. Office of Pers. Mgmt., 45 M.S.P.R. 321, 323 (1990), aff’d mem., 925
F.2d 1478 (Fed. Cir. 1991); see also Esteban v. Office of Pers. Mgmt., 978 F.2d 700,
701 (Fed. Cir. 1992)).
The evidence before the Board shows that Mr. Sera’s first period of service did
not meet the five-year requirement. His second and third periods of service were both
specifically excluded from retirement coverage because the second was temporary, and
the third, indefinite. In addition, the evidence shows that any retirement contributions
that were withheld from his pay were refunded. Mr. Sera could not show that he
redeposited them – a requirement for an annuity. Additionally, there is no evidence that
any retirement contributions were withheld from Mr. Sera’s pay after the refund or
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during the second and third period. As a result, substantial evidence supports the
Board’s conclusion that Mr. Sera never held a covered position that provided the
required five years of creditable service that would entitle him to a deferred annuity.
In addition, Mr. Sera argues that the “continuity provision of service rule,” which
this court understands to mean the continuity-of-service rule, should apply to his third
period of employment; and that because the employment forms show that he “was
eligible for retirement pay” this must mean he should receive retirement pay. However,
with regard to his first argument, OPM, pursuant to its statutory authority to exclude
employees whose employment is temporary or intermittent, established in 1965 that
service under indefinite appointments is not subject to retirement coverage. See 5
U.S.C. § 8347(g) (1994); 5 C.F.R. § 831.201(a)(13) (1998); See generally Rosete, 48
F.3d at 514. In addition, with regard to his second argument, being “eligible” does not
entitle an employee to a deferred annuity, particularly when the employee has provided
no evidence of retirement contributions being withheld from pay. Id.
As a result, the Board’s decision is in accordance with the law, and is supported
by substantial evidence. Therefore, this court affirms.
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