                 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

                                       05-3351


                             VICTORIANO V. RAGADOS,

                                                     Petitioner,


                                          v.


                     OFFICE OF PERSONNEL MANAGEMENT,

                                                     Respondent.


                          ____________________________

                          DECIDED: April 11, 2006
                          ____________________________


Before SCHALL, Circuit Judge, CLEVENGER, Senior Circuit Judge, and GAJARSA,
Circuit Judge.

PER CURIAM.


                                      DECISION

      Victoriano V. Ragados petitions for review of the final decision of the Merit

Systems Protection Board (“Board”) that sustained the reconsideration decision of the

Office of Personnel Management (“OPM”) denying his application for a deferred annuity

under the Civil Service Retirement Act (“CSRA”), Ragados v. Office of Pers. Mgmt., No.

SF0831040671-I-1, slip op. (M.S.P.B July. 22, 2005) (“Final Decision”). We affirm.
                                     DISCUSSION

                                            I

      Mr. Ragados is a Filipino national who was employed in civilian service by the

Department of the Navy at Subic Bay, Philippines, during two periods of service. He

was hired on December 22, 1947, and remained employed until July 22, 1949, at which

time he was separated by a reduction in force. Mr. Ragados began his second period

of service on March 21, 1951, and he was employed by the Navy until he retired on

November 24, 1989.

      On October 3, 2002, Mr. Ragados submitted to OPM an application for a

deferred retirement annuity. Upon concluding that the positions in which Mr. Ragados

had been employed were not covered by the CSRA, OPM denied the application. Mr.

Ragados sought reconsideration of that decision, and on May 28, 2004, OPM issued a

reconsideration decision, again denying Mr. Ragados’ application.          Mr. Ragados

appealed the reconsideration decision to the Board. In an initial decision dated October

26, 2004, the administrative judge (“AJ”) to whom the case was assigned affirmed

OPM’s ruling.      Ragados v. Office of Pers. Mgmt., No. SF0831040671-I-1, slip op.

(M.S.P.B. Oct. 26, 2004) (“Initial Decision”).   The Initial Decision became the final

decision of the Board when the Board denied Mr. Ragados’ petition for review for failure

to meet the criteria for review set forth at 5 C.F.R. § 1201.115(d). Final Decision. This

appeal followed.

                                            II

       We have jurisdiction over appeals from the Board under 28 U.S.C. § 1295(a)(9).

The decision of the Board will be affirmed unless it is arbitrary, capricious, an abuse of




05-3351                                     2
discretion, or otherwise not in accordance with law; obtained without procedures

required by law, rule, or regulation having been followed; or unsupported by substantial

evidence. 5 U.S.C. § 7703(c).

       To receive an annuity under the CSRA, an individual must meet the requirements

of the law in effect at the time the individual was separated. Esteban v. Office of Pers.

Mgmt., 978 F.2d 700, 701 (Fed. Cir. 1992).          Because Mr. Ragados’ first period of

service was from 1947 to 1949, the Retirement Act of January 24, 1942, determines his

eligibility for that period of service. The 1942 Act required an employee to have a total

of five years of creditable service at the time of separation. See id.; Vanaman v. Office

of Pers. Mgmt., 59 M.S.P.R., 598, 601-02 (1993), review dismissed, No. 94-3157 (Fed.

Cir. 1994). Because Mr. Ragados’ first period of service totaled only nineteen months,

which is less than the five years required by the 1942 Act, the Board was correct to hold

that this service did not qualify him for a deferred retirement annuity. See Sabado v.

Office of Pers. Mgmt., 905 F.2d 387 (Fed. Cir. 1990) (finding no entitlement to annuity

where a civilian Navy employee completed less than five years of creditable service

even though his separation was caused by a service related disability).

       Mr. Ragados’ second period of service is governed by the Retirement Act of

August 31, 1954, which is still in effect today and has only been amended in ways

immaterial to this case. See 5 U.S.C. § 8333. Section 8333(a) provides: “An employee

must complete at least 5 years of civilian service before he is eligible for an annuity

under this subchapter.”     Section 8333(b) further requires in relevant part that “[a]n

employee or Member must complete, within the last 2 years before any separation from

service . . . at least 1 year of creditable civilian service during which he is subject to this



05-3351                                       3
subchapter before he or his survivors are eligible for annuity . . . .” There is no dispute

that Mr. Ragados served well in excess of five years. His entitlement to an annuity

turns upon whether the covered service requirement of section 8333(b) was satisfied.

       Mr. Ragados’ second period of service began under an excepted-intermittent

appointment on March 21, 1951. Block #20 of the Standard Form 50 “Notification of

Personnel Action” (“SF-50”) for the appointment stated that Mr. Ragados was not

subject to the CSRA. On December 10, 1951, Mr. Ragados’ service was converted to

an excepted-indefinite appointment, with block #18 of the SF-50 for the appointment

stating that he was not subject to the CSRA. 5 C.F.R. § 831.201(a)(2) provides that

intermittent appointments are specifically excluded from CSRA coverage. See Rosete

v. Office of Pers. Mgmt., 48 F.3d 514, 520 (Fed. Cir. 1995) (upholding the exclusion in 5

C.F.R. § 831.201(a) of employees holding indefinite appointments from receiving CSRA

retirement benefits).

       Significantly, all SF-50s ever issued concerning Mr. Ragados reflect that his

retirement status was “none” or “other,” namely other than the CSRA. Moreover, the

relevant documents indicate that no retirement contributions were ever withheld from

Mr. Ragados’ pay. See id. at 516 (“Covered service only includes an appointment . . .

for which an employee must deposit part of his or her pay into the Civil Service

Retirement and Disability Fund.”).

       Finally, the AJ found that Mr. Ragados was required to retire pursuant to a

collective bargaining agreement that afforded him retirement pay in accordance with the

Filipino Employment Personnel Instructions. Initial Decision, slip op. at 6. Employees

subject to another retirement system for government employees are excluded from


05-3351                                     4
coverage under the CSRA. 5 U.S.C. § 8331(1)(ii); see De Guzman v. Dep’t of Navy,

231 Ct. Cl. 1005 (1982) (“5 U.S.C. 8331(1)(ii) provides that the Retirement Act does not

include an employee subject to another retirement system for Government workers.”).

       The Board determined that the fact that Mr. Ragados’ SF-50 indicated that he

was in “Tenure Group 1” did not affect the inquiry into whether he was a permanent

employee. Initial Decision, slip op. at 7. The Board reasoned that the tenure group

status is used primarily to determine an employee’s rights in a reduction in force, but is

not determinative of either appointment or retirement rights.        Id.   The Board noted

DeJesus v. Office of Personnel Management, 63 M.S.P.R. 586, 593 (1994), aff’d, 62

F.3d 1431 (Fed. Cir. 1995) (Table) and Fredeluces v. Office of Personnel Management,

57 M.S.P.R. 598, 602 n.4 (1993), aff’d, 16 F.3d 421 (Fed. Cir. 1993), as standing for the

proposition that tenure groups may be considered in determining the nature of the

underlying appointment “if the personnel records are incomplete and the employee was

at any time subject to the CSRA.” Initial Decision, slip op. at 7. However, because the

Board found that Mr. Ragados’ personnel records appeared complete and because no

evidence was presented demonstrating that he was ever covered under the CSRA, the

Board found that the tenure group designation was insufficient to overcome the other

evidence in the record. Id., slip op. at 8. We see no error in this finding.

       Lastly, the fact that Mr. Ragados was employed during the transition period in

which administering authority over CSRA coverage was transferred from the President

to the newly reorganized Civil Service Commission is without consequence. Executive

Order 10,180, which made appointments to Executive branch positions nonpermanent

and excluded them from CSRA benefits, was repealed effective January 23, 1955. The



05-3351                                      5
Civil Service Commission regulation excluding indefinite appointees from CSRA

coverage was not promulgated until October 30, 1956.          However, the AJ correctly

observed that Federal Circuit case law has held that the applicable retirement

exclusions concerning indefinite appointment employees remained in effect without any

“lapse.” See Carreon v. Office of Pers. Mgmt., 321 F.3d 1128, 1131-33 (Fed. Cir. 2003)

(finding that the suggestion that indefinite appointments between the revocation of

Executive Order 10,180 and the promulgation of the Civil Service Commission’s

regulation 5 C.F.R. § 29.2 “may well have been eligible for CSR[A] coverage” is contrary

to the law of this circuit); Casilang v. Office of Pers. Mmgt., 248 F.3d 1381, 1383 (Fed.

Cir. 2001) (holding that “the exclusion of nonpermanent employees from coverage by

the CSRA effected by Executive Order No. 10,180 [remained in effect] until the Civil

Service Commission promulgated new regulations, which it did in 1956, thus preventing

the appellant’s service between January 25, 1952, and June 30, 1958, from entitling him

to a retirement annuity). Thus, Mr. Ragados’ argument that his employment during the

transition period could impact whether any of his service was creditable is without merit.

      For the foregoing reasons, the decision of the Board is affirmed.

      Each party shall bear its own costs.




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