                 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.
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



                                           3
06-3105
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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