Gregorio M. Bagat v. Office of Personnel Management

N OTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
GREGORIO M. BAGAT,
Petitioner
v.
OFFICE OF PERSONNEL MANAGEMENT,
Respondent
______________________
2023-1960
______________________
Petition for review of the Merit Systems Protection
Board in No. SF-0831-16-0798-I-1.
______________________
Decided: March 12, 2024
______________________
G REGORIO M. BAGAT , Zambales, Philippines, pro se.
K RISTIN ELAINE O LSON, Commercial Litigation Branch,
Civil Division, United States Department of Justice, Wash-
ington, DC, for respondent. Also represented by REGINALD
T HOMAS BLADES , J R., BRIAN M. BOYNTON, P ATRICIA M.
MCCARTHY .
______________________
Case: 23-1960 Document: 18 Page: 1 Filed: 03/12/2024

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BAGAT v. OPM 2
Before L OURIE, L INN, and STOLL , Circuit Judges.
P ER CURIAM
Gregorio M. Bagat (“Bagat”), a federal employee from
1971 until 1992, petitions for review of a March 21, 2023
final order of the Merit Systems Protection Board (“Board”)
denying his application for deferred annuity retirement
benefits under the Civil Service Retirement System
(“CSRS”). For the following reasons, we affirm.
We must affirm a Board decision unless it is “arbitrary,
capricious, an abuse of discretion, or otherwise not in ac-
cordance with law; obtained without procedures required
by law, rule, or regulation having been followed; or unsup-
ported by substantial evidence.” 5 U.S.C. § 7703(c)(1)–(3).
Petitioner bears the burden of proving entitlement to re-
tirement benefits. Cheeseman v. OPM, 791 F.2d 138, 141
(Fed. Cir. 1986).
To establish eligibility for a CSRS annuity, petitioner
must satisfy two statutory prerequisites: (1) five years of
creditable civilian service, and (2) “at least one of his last
two years of federal service in a covered position—i.e., ser-
vice that is subject to the Civil Service Retirement Act.”
Lledo v. O.P.M., 886 F.3d 1211, 1213 (Fed. Cir. 2018) (em-
phasis added); 5 U.S.C. § 8333(a)–(b) (“An employee or
Member must complete . . . at least 1 year of creditable ci-
vilian service during which he is subject to this subchap-
ter.”).
The Board held that Bagat failed to satisfy the second
prerequisite and was thus ineligible for a CSRA annuity.
Bagat argues that 5 U.S.C. § 8334(c) and 5 C.F.R.
§ 831.303(a) allow him to make a deposit “without any ser-
vice covered by CSRS” and that even without a deposit he
is entitled to an annuity. Petition at 9, 13.
The Board’s holding that Bagat is not eligible for a
CSRA annuity is supported by substantial evidence and
not contrary to law or arbitrary or capricious. The Board
Case: 23-1960 Document: 18 Page: 2 Filed: 03/12/2024

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BAGAT v. OPM 3
held that all the positions Bagat held during his federal
tenure were either indefinite or not-to-exceed appoint-
ments in the excepted service, which Bagat does not chal-
lenge. J. App’x at 28. Those positions are not “covered”
positions under the CSRA, even if they are full-time posi-
tions. Lledo, 886 F.3d at 1213 (“Temporary, intermittent,
term, and excepted indefinite appoints are not covered po-
sitions.”); Quiocson v. OPM, 490 F.3d 1358, 1360 (Fed. Cir.
2007) (holding that temporary and indefinite appointments
are excluded from CSRS retirement coverage); 5 C.F.R.
§ 831.201(a) (excluding groups of employees from coverage
under subchapter III of chapter 83 of title 5, including “In-
termittent” employees and those serving under indefinite
appointments). See also Petition at 12 (agreeing that OPM
may exclude “temporary, intermittent, term, and excepted
indefinite appointment[s]” from CSRS coverage). Bagat is
thus outside the purview of the CSRA and is not entitled to
an annuity under that scheme.
Moreover, as the Board correctly noted, Bagat never
withheld any income for the CSRS, and his SF-50 forms
indicated that his retirement benefits were designated as
“other” rather than “CSRS.” J. App’x at 13—16. An award
of retirement benefits under a system other than CSRS
precludes a CSRS annuity award. Quiocson, 490 F.3d at
1360 (rejecting eligibility for CSRS benefits because peti-
tioner’s appointment forms showed that the positions were
not covered by the CSRS and because petitioner received
retirement benefits under a non-CSRS plan).
Bagat argues that his failure to make a timely deposit
is excusable and does not undermine his eligibility for an
annuity. Petition at 8 (discussing Mata v. OPM, 652 F.
App’x 931 (Fed. Cir. 2016) (non-precedential)). Bagat’s ar-
gument is misplaced. He is ineligible for an annuity not
based on his having failed to make a timely deposit, but
because his employment was not covered by the CSRA.
Case: 23-1960 Document: 18 Page: 3 Filed: 03/12/2024

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BAGAT v. OPM 4
Bagat also argues that 5 U.S.C. § 8334(c) and 5 C.F.R.
§ 831.303(a) converted his creditable service to covered ser-
vice. Bagat is incorrect. 5 U.S.C. § 8334(c) allows an em-
ployee “credited with civilian service after July 31, 1920,
for which retirement deductions or deposits have not been
made” to make a deposit, but that provision excludes em-
ployees like Bagat, who were only employed in intermittent
or indefinite positions and says nothing about expanding
the category of persons eligible for a CSRA annuity. 5
C.F.R. § 831.303(a) allows an employee to include “[p]eri-
ods of creditable service . . . in determining length of service
to compute annuity,” and allows an employee who has not
made a deposit to be credited with a constructive deposit
with a 10% penalty. But this provision “does not alter the
definition of covered service or convert creditable service
into covered service.” Lledo, 886 F.3d at 1214 (citing sev-
eral cases). See also 5 C.F.R. § 831.201(a) (excluding cer-
tain employees from operation of 5 U.S.C. § 8334(c) and
related CSRA provisions).
We find no merit to any of the other arguments raised
in the petition. For these reasons, the decision of the MSPB
is affirmed.
AFFIRMED
COSTS
Each party shall bear its own costs.
Case: 23-1960 Document: 18 Page: 4 Filed: 03/12/2024

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