                     NOTE: This disposition is nonprecedential.

 United States Court of Appeals for the Federal Circuit
                                     2009-3206


                               LEONORA FERNANDEZ,

                                                           Petitioner,

                                          v.

                     OFFICE OF PERSONNEL MANAGEMENT,

                                                           Respondent.


      Leonora Fernandez, of San Juan, San Narciso, Philippines, pro se.

       Richard P. Schroeder, Trial Attorney, Commercial Litigation Branch, Civil
Division, United States Department of Justice, of Washington, DC, for respondent. With
him on the brief were Tony West, Assistant Attorney General, Jeanne E. Davidson,
Director, and Mark A. Melnick, Assistant Director.

Appealed from: Merit Systems Protection Board
                      NOTE: This disposition is nonprecedential.


 United States Court of Appeals for the Federal Circuit

                                      2009-3206

                              LEONORA FERNANDEZ,

                                                            Petitioner,

                                           v.

                     OFFICE OF PERSONNEL MANAGEMENT,

                                                            Respondent.

Petition for review of the Merit Systems Protection Board in SF0831080754-I-1.

                           ___________________________

                           DECIDED: December 11, 2009
                           ___________________________

Before BRYSON, ARCHER, and MOORE, Circuit Judges.

PER CURIAM.

      Leonora Fernandez appeals from a final decision of the Merit Systems Protection

Board (Board) denying her request for entitlement to benefits under the Civil Service

Retirement System (CSRS) based on the civilian service of her husband, Nazario

Fernandez.    See Fernandez v. Office of Pers. Mgmt., No. SF-0831-08-0754-I-1

(M.S.P.B. Jan. 15, 2009) (initial decision); Fernandez v. Office of Pers. Mgmt., No. SF-

0831-08-0754-I-1 (M.S.P.B. Apr. 22, 2009) (final order denying petition for review). For

the reasons discussed below, we affirm.

                                   BACKGROUND

      Mrs. Fernandez’s husband was employed as a marine engineman with the U.S.

Navy in Subic Bay, Philippines from September 14, 1978, until his death on February
25, 1985. When he was first hired, Mr. Fernandez’s position was a “not-to-exceed”

appointment in the excepted service. His subsequent appointments were also either

not-to-exceed or indefinite appointments.       No CSRS deductions were ever withheld

from Mr. Fernandez’s pay. Upon Mr. Fernandez’s death, his designated beneficiaries

were entitled to death benefits and “severance pay” in accordance with a collective

bargaining agreement.

      On May 29, 2007, Mrs. Fernandez filed an application with the Office of

Personnel Management (OPM) to make a deposit into the CSRS fund to compensate

for deductions that were not taken out of her husband’s pay during his service. OPM

denied Mrs. Fernandez’s application. In an initial decision, OPM explained that Mr.

Fernandez had never served in a position subject to the Civil Service Retirement Act

(CSRA), 5 U.S.C. § 8331 et seq., and therefore Mr. Fernandez’s service did not entitle

him to retirement benefits under the CSRS. Consequently, according to OPM, Mrs.

Fernandez was not entitled to make a CSRS deposit for Mr. Fernandez’s service or to

receive a survivor annuity. OPM affirmed its initial decision, and Mrs. Fernandez filed

an appeal with the Board.

      The administrative judge (AJ) affirmed OPM’s decision in an initial decision dated

January 15, 2009.     To qualify for CSRS retirement benefits, the AJ explained, an

employee must 1) complete at least five years of qualifying civilian service (“creditable”

service), and 2) serve at least one of his last two years of federal service in a position

that is “subject to” the CSRA (“covered” service). 5 U.S.C. § 8333(a), (b). OPM’s

regulations exclude various service positions from coverage under the CSRA, including

intermittent service and service pursuant to nonpermanent and indefinite appointments.




2009-3206                                   2
5 C.F.R. § 831.201. Based on Mr. Fernandez’s Standard Forms 50 (SF-50s) of record,

the AJ found that Mr. Fernandez served exclusively under appointments that were not-

to-exceed, intermittent, and/or indefinite.      The AJ noted that “not-to-exceed”

appointments, which are defined to expire on a specified date, are necessarily

“nonpermanent” appointments. Therefore, the AJ concluded, none of Mr. Fernandez’s

periods of service were covered by the CSRA. The AJ also noted that Mr. Fernandez’s

SF-50s consistently indicated his retirement coverage as being “other” or “none,” that no

deductions were ever withheld from Mr. Fernandez’s pay, and that Mr. Fernandez

received death benefits and severance pay in accordance with a collective bargaining

agreement. The AJ found that these facts further supported his conclusion that Mr.

Fernandez’s service was not covered by the CSRA.

      Because Mr. Fernandez’s service was not covered by the CSRA, the AJ

determined that Mrs. Fernandez was not entitled to make a deposit or receive survivor

benefits based on that service. Therefore, the AJ affirmed OPM’s decision denying Mrs.

Fernandez’s application to make a deposit. The AJ’s initial decision became final after

the Board denied Mrs. Fernandez’s petition for review. See Fernandez v. Office of

Pers. Mgmt., No. SF-0831-08-0754-I-1 (M.S.P.B. Apr. 22, 2009).

                                     DISCUSSION

      Mrs. Fernandez appeals from the Board’s final decision, and we have jurisdiction

under 28 U.S.C. § 1295(a)(9).      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). We review




2009-3206                                  3
questions of law without deference to the Board. Carley v. Dep’t of the Army, 413 F.3d

1354, 1356 (Fed. Cir. 2005).

      On appeal, Mrs. Fernandez argues that Mr. Fernandez was employed “subject

to” the CSRA because he was appointed as a federal employee. However, the Board

correctly observed that OPM’s regulations exclude certain categories of federal

employees from eligibility for CSRS benefits. In particular, 5 C.F.R. § 831.201 excludes

“intermittent” employees from eligibility under the CSRA, as well as employees serving

under nonpermanent and indefinite appointments. Id. § 831.201(a)(1), (12)-(13). The

Board found, and the record shows, that Mr. Fernandez’s service with the Navy was

rendered exclusively under “not-to-exceed” appointments (which, as the Board noted,

are   necessarily   “nonpermanent”),    intermittent    appointments,   and    indefinite

appointments. Therefore, the Board correctly found that Mr. Fernandez’s service was

not covered by the CSRA. See Quiocson v. OPM, 490 F.3d 1358, 1360 (Fed. Cir.

2007) (“Service under [temporary or indefinite] appointments is excluded from CSRS

retirement coverage under [5 C.F.R. § 831.201(a)].”).

      The Board’s conclusion is further supported by the fact that Mr. Fernandez’s

retirement coverage was listed as “none” or “other” on the official SF-50s and that Mr.

Fernandez received death benefits and severance pay under a collective bargaining

agreement. Id. at 1360 (“[The] receipt of benefits under a non-CSRS plan indicates that

. . . service was not covered under the CSRS.”).          Additionally, the fact that no

deductions were ever taken from Mr. Fernandez’s pay tends to show that his service

was not covered. Id. (“The absence of [CSRS] deductions is an indication that an

employee was not serving in a covered position.”). Accordingly, substantial evidence




2009-3206                                  4
supports the Board’s conclusion that Mr. Fernandez’s service was not covered by the

CSRA.

       Mrs. Fernandez also argues that she is entitled to make a deposit based solely

on Mr. Fernandez’s creditable service pursuant to 5 U.S.C. § 8334(c). Section 8334(c)

provides that “[e]ach employee . . . credited with civilian service after July 31, 1920, for

which retirement deductions or deposits have not been made, may deposit with the

interest an amount equal to the following percentages of his basic pay received for that

service.”   However, as we explained in Quiocson, “[a] retroactive deposit does not

convert a non-covered position into a covered position.”         490 F.3d at 1360.      Mr.

Fernandez’s service was not covered by the CSRA, and Mrs. Fernandez is therefore

not entitled to benefits under the CSRS; his lack of coverage, and her lack of

entitlement, cannot be remedied with a deposit.

       For the foregoing reasons, we affirm the final decision of the Board.

                                             COSTS

       No costs.




2009-3206                                    5
