       NOTE: This disposition is nonprecedential.

  United States Court of Appeals
      for the Federal Circuit
              __________________________

                FABIAN M. ROSIMO,
                     Petitioner,
                           v.
     OFFICE OF PERSONNEL MANAGEMENT,
                 Respondent.
              __________________________

                      2011-3090
              __________________________

   Petition for review of the Merit Systems Protection
Board in case no. SF0831100613-I-1.
              ___________________________

              Decided: November 10, 2011
             ___________________________

    FABIAN M. ROSIMO, of San Agustin, Castillejos, Phil-
ippines, pro se.

    SHELLEY D. WEGER, Trial Attorney, Commercial Liti-
gation Branch, Civil Division, United States Department
of Justice, of Washington, DC, for respondent. With her
on the brief were TONY WEST, Assistant Attorney General,
JEANNE E. DAVIDSON, Director, and STEVEN J.
GILLINGHAM, Assistant Director. Of counsel was JESSICA
ROSIMO   v. OPM                                        2


JOHNSON, Office of Personnel Management, of Washing-
ton, DC.
              __________________________

  Before NEWMAN, BRYSON, and MOORE, Circuit Judges.
PER CURIAM.
    This case is an appeal from a decision by the Merit
Systems Protection Board (Board) affirming a decision of
the Office of Personnel Management (OPM) holding Mr.
Rosimo was not eligible to make a deposit under the Civil
Service Retirement System (CSRS). Because there is
substantial evidence supporting the Board’s decision, and
because the decision was not arbitrary, capricious, an
abuse of discretion, or otherwise not in accordance with
law, we affirm.
                     BACKGROUND
    Mr. Rosimo served with the Department of the Navy
between November 24, 1945 and October 6, 1949, and
again from October 27, 1966 through April 5, 1987. There
is no evidence that Mr. Rosimo ever had retirement
deductions withheld from his pay. Mr. Rosimo neverthe-
less applied to OPM to make a CSRS service credit de-
posit. OPM denied this request because it concluded Mr.
Rosimo was ineligible to make such a deposit. Mr.
Rosimo appealed and the Board affirmed, explaining that
entitlement to a retirement annuity under the Civil
Service Retirement Act (CSRA) requires both “creditable
service” and “covered service.” Although Mr. Rosimo had
more than five years of “creditable service,” the Board
found that he held an indefinite appointment, which was
not “covered service” since indefinite appointments are
excluded from CSRA coverage.
3                                             ROSIMO   v. OPM


     Upon a petition for review, the full Board affirmed the
initial decision. The Board again explained that because
Mr. Rosimo held an indefinite appointment, he failed to
establish any “covered service” under the CSRA. The
Board rejected Mr. Rosimo’s argument that 5 C.F.R.
§ 8831.112(a)(2) contradicted the plain language of 5
U.S.C. § 8334(c). The Board held that the regulation was
reasonable since it “merely prohibits deposits from em-
ployees who would not be eligible to receive a CSRS
annuity even if they made a deposit.” Resp’t App. 7. The
Board also distinguished Mr. Rosimo’s situation from
cases where an employee previously satisfied the covered
service requirement, and explained that Mr. Rosimo’s
coverage or lack of coverage under a local collective bar-
gaining agreement did not impact the outcome of his case
since his service was not covered by the CSRS.
   Mr. Rosimo appeals the Board’s final decision.        We
have jurisdiction pursuant to 28 U.S.C. § 1295(a)(9).
                       DISCUSSION
    We affirm the Board’s decision unless it is “(1) arbi-
trary, 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). “Substantial evidence is ‘such relevant evidence
as a reasonable mind might accept as adequate to support
a conclusion.’” McEntee v. Merit Sys. Prot. Bd., 404 F.3d
1320, 1325 (Fed. Cir. 2005) (quoting Consol. Edison Co. v.
NLRB, 305 U.S. 197, 229 (1938)).
    Mr. Rosimo does not appear to dispute the relevant
facts on appeal, namely that he served on indefinite
appointments during his employment. Instead, he chal-
lenges the Board’s interpretation of the regulations. Mr.
Rosimo claims that 5 C.F.R. § 831.112(a)(2) and 5 C.F.R.
ROSIMO   v. OPM                                             4


§ 831.303(a), when read in conjunction mean that “it is
not necessary for an individual to make a deposit for
service performed under a noncontributory service to
receive credit for such.” Pet’r Br. at 4. Mr. Rosimo claims
that because he was “on [the] active roll” when section
831.303(a) was promulgated “it automatically made all
my non-CSRA position into noncontributory service under
the law,” and retroactively made his position “subject to”
the CSRS. Pet’r Br. at 5.
     Mr. Rosimo distinguishes 5 C.F.R. § 831.112(a), which
he claims only applies for service beginning October 1,
1982, and asserts he has “inherent” CSRA coverage for
his service ending September 30, 1982, which therefore
entitles him to an annuity. As a result, Mr. Rosimo
argues that his service prior to October 1, 1982 is “covered
service” which entitles him to an annuity. Pet’r Br. at 5
(citing 5 C.F.R. § 831.303(b)). Citing Dorry v. Office of
Personnel Management, 35 M.S.P.R. 264 (1987), Mr.
Rosimo also asserts that he was entitled to count his
creditable service towards an annuity.
     Mr. Rosimo’s arguments fail to establish that he is a
former employee with Civil Service Retirement Annuity
rights. As defined in 5 C.F.R. § 831.112(a), an “employee”
is either a current employee subject to the civil service
retirement law or a former employee who retains civil
service retirement annuity rights. To “qualify for a civil
service retirement annuity,” however, “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.” Quiocson v.
Office Pers. Mgmt., 490 F.3d 1358, 1360 (Fed. Cir. 2007).
It is undisputed that Mr. Rosimo served exclusively under
indefinite appointments, which are “excluded from CSRS
retirement coverage under OPM regulations,” and there-
5                                             ROSIMO   v. OPM


fore not “covered service.” Id. Mr. Rosimo does not chal-
lenge this factual finding or the finding that there was no
evidence that CSRS deductions were ever withheld from
Mr. Rosimo’s pay. See id. (“The absence of deductions is
an indication that an employee was not serving in a
covered position.”). A former employee may “make a
deposit only if that former employee is already covered by
the CSRS.” Della Rosa v. Office Pers. Mgmt., 583 F.3d
762, 765 (Fed. Cir. 2009). Since Mr. Rosimo lacks suffi-
cient “covered service,” he is not a former employee al-
ready covered by CSRS and therefore is not eligible to
make a deposit under 5 U.S.C. § 8334(c).
    Mr. Rosimo’s argument that 5 C.F.R. § 831.303(a) al-
lows him to convert his “creditable service” into “covered
service” is unavailing. Section 831.303(a), by its terms,
only applies to “an employee,” and allows periods of
“creditable civilian service” to be “included in determining
length of service to compute annuity.” Section 831.303(a)
thus allows an employee who qualifies for an annuity to
include certain periods of creditable service in the calcula-
tion. Mr. Rosimo, however, lacks “covered service,” not
“creditable service,” so 5 C.F.R. § 831.303(a) does not help
him. Contrary to Mr. Rosimo’s interpretation, 5 C.F.R.
§ 831.303(b), which also applies to an “employee,” does not
give rise to an “inherent” CSRA coverage that fixes his
“covered service” deficiency. Likewise, Mr. Rosimo’s claim
that Dorry allows him to avoid the covered service re-
quirement is incorrect: Dorry involved an employee who
had sufficient covered service, but lacked creditable ser-
vice. 35 M.S.P.R. at 265-66; see also Della Rosa, 583 F.3d
at 765 n.3 (explaining Dorry involved “a woman with four-
and-a-half years of covered service” who succeeded in
proving “prior service in Iran was creditable service”).
    We conclude the Board’s decision that Mr. Rosimo was
not eligible to make a deposit under the CSRS was not
ROSIMO   v. OPM                                          6


arbitrary, capricious, an abuse of discretion, or otherwise
not in accordance with law, and is supported by substan-
tial evidence. We have considered Mr. Rosimo’s addi-
tional arguments on appeal and find them to be without
merit.
                      AFFIRMED
                          COSTS
   No costs.
