                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


                                      05-3274

                              ELEAZAR D. RODRICK,

                                              Petitioner,

                                         v.

                     OFFICE OF PERSONNEL MANAGEMENT,

                                              Respondent.

                          ___________________________

                          DECIDED: January 17, 2006
                          ___________________________


Before BRYSON, LINN, and DYK, Circuit Judges.

PER CURIAM.

                                     DECISION

      Eleazar D. Rodrick petitions this court for review of a decision of the Merit

Systems Protection Board, Docket No. SE-0331-04-0128-I-1, affirming the decision of

the Office of Personnel Management (“OPM”) denying his application for an annuity

under the Civil Service Retirement System (“CSRS”). We affirm.

                                  BACKGROUND

      Mr. Rodrick worked as a civilian employee at the U.S. Naval Ship Repair Facility

in the Philippines from March 29, 1968, until July 24, 1992. During the first several
years of his employment, he worked pursuant to three temporary appointments, each

for a period not to exceed one year.       On May 1, 1970, Mr. Rodrick’s status was

converted to an indefinite appointment. On July 3, 1977, Mr. Rodrick was promoted to

the position of Maintenance Machinist, PW-16. On July 24, 1992, Mr. Rodrick was

terminated due to a reduction in force. Mr. Rodrick subsequently applied for CSRS

retirement benefits. OPM, however, rejected Mr. Rodrick’s application, Mr. Rodrick

then appealed to the Board.

      The administrative judge who was assigned to the case agreed with OPM that

Mr. Rodrick was not eligible for a retirement annuity. The administrative judge ruled that

his temporary appointment was excluded from CSRS coverage by 5 C.F.R.

§ 831.201(a)(1) and that his indefinite appointment was excluded from CSRS coverage

by 5 C.F.R. § 831.201(a)(13). The administrative judge also ruled that the promotion

Mr. Rodrick received in 1977 did not constitute a new appointment for which he was

entitled to CSRS coverage. Therefore, the administrative judge ruled that all of Mr.

Rodrick’s service between May 1, 1970, and July 24, 1992, was pursuant to his

indefinite appointment of May 1, 1970, and did not render him eligible for a CSRS

annuity. Mr. Rodrick seeks review of that determination.

                                     DISCUSSION

      To be eligible for a CSRS annuity, an employee must complete five years of what

is called “creditable” service, 5 U.S.C. § 8333(a). In addition, one of the last two years

of the employee’s service must qualify as “covered” service, 5 U.S.C. § 8333(b). See

Tizo v. Office of Pers. Mgmt., 325 F.3d 1378, 1379-80 (Fed. Cir. 2003); Rosete v. Office

of Pers. Mgmt., 48 F.3d 514, 516-17 (Fed. Cir. 1995). OPM and the Board found that




05-3274                                     2
all of Mr. Rodrick’s civilian service was “creditable,” but that none of his service qualified

as “covered.”

       Whether or not civilian service is “covered”—i.e., “subject to this subchapter” for

purposes of section 8333(b)—is determined by regulation. See 5 U.S.C. § 8347(a), (g)

(giving OPM authority to exclude certain groups of employees from CSRS coverage).

OPM’s regulations explicitly exclude several types of employees from CSRS coverage,

including those “serving under appointments limited to one year or less,” 5 C.F.R.

§ 831.201(a)(1), and those “serving under nonpermanent appointments, designated as

indefinite, made after January 23, 1955,” id. § 831.201(a)(13). The administrative judge

correctly held that Mr. Rodrick’s three temporary appointments fell under section

831.201(a)(1) of the regulations and therefore did not constitute “covered” service. The

administrative judge also correctly held that the remainder of Mr. Rodrick’s service was

under an indefinite appointment and therefore was not “covered” in light of section

831.201(a)(13) of the regulations. Having determined that none of Mr. Rodrick’s service

was “covered,” the administrative judge properly affirmed OPM’s decision denying him

an annuity.

       Mr. Rodrick makes three arguments in an effort to overturn the Board’s decision.

First, he argues that his promotion in 1977 constituted a new appointment to a

“covered” position and that his service from July 3, 1977, to July 24, 1992, was

therefore “covered.”    Second, he argues that 5 C.F.R. § 831.201(b)(2)-(3), which

provides certain exceptions to section 831.201(a), applies to him and negates the effect

of section 831.201(a). Finally, he argues that, to the extent section 831.201(a) excludes

his employment from “covered” status, it violates 5 U.S.C. § 8347(g).




05-3274                                       3
      In arguing that his promotion constituted a new appointment to a covered

position, Mr. Rodrick cites Goutos v. United States, 552 F.2d 922 (Ct. Cl. 1976), which

he argues stands for the proposition that a promotion is deemed to be a new

appointment. In Goutos, however, there was no dispute about whether the particular

promotion at issue was an “appointment.” The question before the court was whether

that particular appointment was fully consummated, and the court held that it was not.

Id. at 924-25. Goutos therefore provides no reason to disturb the administrative judge’s

ruling that the final 22 years of Mr. Rodrick’s appointment were served pursuant to his

indefinite appointment of May 1, 1970.

      Mr. Rodrick’s second argument is that, regardless of whether his promotion

constituted a new appointment, 5 C.F.R. § 831.201(b)(2)-(3) gives him a right to an

annuity. Section 831.201(b) of the regulations provides:

      Paragraph (a) of this section does not deny retirement coverage when:
      ...
      (2) The employee receives a career or career-conditional appointment
      under part 315 of this chapter; [or]
      (3) The employee is granted competitive status under legislation,
      Executive order, or civil service rules and regulations, while he or she is
      serving in a position in the competitive service.

The problem with Mr. Rodrick’s argument is that there is no evidence that his promotion

was a “career or career-conditional appointment under part 315 of [5 C.F.R.]” or that he

was “granted competitive status” while “serving in a position in the competitive service.”

Mr. Rodrick appears to argue that his promotion gave him competitive status because

the promotion was authorized by Part 335 of title 5 of the Code of Federal Regulations.

That regulation, he argues, was published pursuant to Executive Order 10577, which

included a provision for granting competitive status to some employees under some

circumstances. But the fact that an Executive Order provided that some employees in


05-3274                                     4
Mr. Rodrick’s position could be granted competitive status “[u]nder such conditions as

the Civil Service Commission may prescribe” does not mean that Mr. Rodrick acquired

competitive status. In addition, Part 335 of title 5 of the Code of Federal Regulations

does not help Mr. Rodrick because 5 C.F.R. § 335.101 provides that “[a] position

change authorized by § 335.102 [Agency authority to promote, demote, or reassign]

does not change the competitive status of an employee.” Assuming that Mr. Rodrick is

correct that his promotion was ordered pursuant to Part 335, section 335.101 directly

contradicts his assertion that the promotion gave him competitive status, because he

did not have competitive status before his promotion.

      Finally, Mr. Rodrick’s argument that 5 U.S.C. § 8347(g) makes 5 C.F.R.

§ 831.201(a) inapplicable to him is foreclosed by our case law. Mr. Rodrick argues that

the regulation “contravene[s] the OPM authority to exclude intermittent or temporary

[employees]” from CSRS coverage. The statute, however, provides in full that

      [t]he Office may exclude from the operation of this subchapter an
      employee or group of employees in or under an Executive agency whose
      employment is temporary or intermittent. However, the Office may not
      exclude any employee who occupies a position on a part-time career
      employment basis (as defined in section 3401(2) of this title).

5 U.S.C. § 8347(g). Mr. Rodrick does not appear to argue that his appointment was “on

a part-time career employment basis.” Rather, he argues that his employment was not

“temporary or intermittent” and that it was therefore beyond OPM’s authority to exclude

his position from CSRS coverage. This court has directly confronted that issue in the

past and has held that the exclusion from coverage of indefinite appointments in the

excepted service—such as Mr. Rodrick’s—is fully consistent with the statutory language

“temporary or intermittent,” and that OPM was within its authority in promulgating and




05-3274                                    5
applying 5 C.F.R. § 831.101(a)(13). Rosete, 48 F.3d at 518-20. We therefore affirm the

Board’s decision in this case.

      No costs.




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