         NOTE: This disposition is nonprecedential.

  United States Court of Appeals
      for the Federal Circuit
                __________________________

                HERMENTA P. AQUINO,
                     Petitioner,
                             v.
       OFFICE OF PERSONNEL MANAGEMENT,
                   Respondent.
                __________________________

                        2011-3092
                __________________________

   Petition for review of the Merit Systems Protection
Board in case no. SF0831100937-l-1.
               __________________________

                Decided: December 12, 2011
                __________________________

      HERMENTA P. AQUINO, Olongapo City, Philippines, pro
se.

    K. ELIZABETH WITWER, Trial Attorney, Commercial
Litigation Branch, Civil Division, United States Depart-
ment of Justice, of Washington, DC, for respondent. With
her on the brief were TONY WEST, Assistant Attorney
General, JEANNE E. DAVIDSON, Director, and DEBORAH A.
BYNUM, Assistant Director.
               __________________________
AQUINO   v. OPM                                         2


 Before RADER, Chief Judge, BRYSON and REYNA, Circuit
                       Judges.
REYNA, Circuit Judge.
    Hermenta P. Aquino appeals the decision of the Merit
Systems Protection Board (“MSPB”) finding Ms. Aquino
ineligible for a deferred annuity benefits under the Civil
Service Retirement System (“CSRS”), and also ineligible
to make a retroactive deposit to the CSRS. Because Ms.
Aquino never held a position covered by the CSRS prior to
her retirement, we conclude that she is ineligible for
participation in the CSRS via receipt of annuities or
retroactive deposits. Accordingly, we affirm.
                    I.   BACKGROUND
    Ms. Aquino worked at the United States Naval Sta-
tion in Subic Bay, Philippines, in various positions from
May 1962 to May 1991. None of her positions were sub-
ject to the Civil Service Retirement Act (“CSRA”). Ms.
Aquino’s “Notice of Personnel Action” Standard Forms 50
(“SF-50s”), which memorialize her various appointments
and movements to different positions, show that her
retirement plan was either listed as “None” or “Other”—
none of the SF-50s indicate participation in a retirement
plan under the CSRA. A5, A32-74. There is no evidence
in the record that a portion of Ms. Aquino’s pay was ever
withheld and deposited into the CSRS account.
    In June 2009, Ms. Aquino requested that the Office of
Personnel Management (“OPM”) grant her deferred
annuity payments based on her service, citing to the
CSRA. This request was denied because her SF-50s
indicated that she did not serve in a position subject to
the CSRA for which retirement deductions were withheld.
Ms. Aquino then requested reconsideration, and stated
that she also “wished to make a deposit for [her] nonde-
3                                            AQUINO   v. OPM


duction service” so as to retroactively contribute to the
CSRS and obtain annuities. A6. The OPM issued a
reconsideration opinion reaffirming its initial decision,
and also finding that Ms. Aquino was ineligible to make a
CSRS deposit.
    Ms. Aquino appealed to the MSPB and the Adminis-
trative Judge (“AJ”) affirmed the OPM, explaining that
“completion of five years of qualified civilian service,
ending with at least one out of the last two years in a
position covered by the CSRA, is a prerequisite for civil
service retirement annuity . . . .” A7 (citing 5 U.S.C.
§ 8333(a)-(b)). Finding that Ms. Aquino at no point in her
29 years with the Navy served in a position covered by the
CSRA, the AJ concluded that Ms. Aquino was not entitled
to civil service annuity rights. The AJ further concluded
that Ms. Aquino could not make a deposit for her service
because the pertinent statutes and OPM regulations
require one to be eligible for a CSRS annuity, based upon
covered service, to make such deposits.
                     II. DISCUSSION
    Our review of decisions of the MSPB is limited by
statute. We may only set aside agency actions, findings,
or conclusions if we find them to be “(1) arbitrary, capri-
cious, an abuse of discretion, or otherwise not in accor-
dance 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) (2006).
               A. CSRS Legal Framework
    There are two kinds of federal service pertinent to de-
termining whether an individual is entitled to a retire-
ment annuity under the CSRA—“creditable service” and
“covered service.” Noveloso v. Office of Pers. Mgmt., 45
AQUINO   v. OPM                                            4


M.S.P.R. 321, 323 (M.S.P.B. 1990), aff’d, 925 F.2d 1478
(Fed. Cir. 1991). While nearly all federal service is cred-
itable service, covered service is limited to service by
those employees who are “subject to” the CSRA, i.e.,
employees who are required to deposit a portion of their
pay into the Civil Service Retirement and Disability
Fund. Id. at 323-24. By statute, employees entitled to
civil service retirement annuities are those who have
completed at least five years of creditable service, where
at least one of the last two years were in a covered posi-
tion. 5 U.S.C. § 8333(a)-(b) (2006) (“An employee must
complete at least 5 years of civilian service before he is
eligible for an annuity under [the CSRA] . . . [and] 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 [the CSRA] . . . .”);
Quiocson v. Office of Pers. Mgmt., 490 F.3d 1358, 1360
(Fed. Cir. 2007). Temporary, intermittent, term, and
excepted indefinite appointments are excluded from
CSRA coverage. 5 C.F.R. § 831.201(a) (2011); Quiocson,
490 F.3d at 1360.
    5 U.S.C. § 8334(c) permits an “employee . . . credited
with civilian service . . . for which retirement deductions
have not been made” under the CSRS to make a deposit
with interest to the CSRS. For purposes of making such
deposits, an “employee” is defined as
   (1) A person currently employed in a position sub-
   ject to the civil service retirement law; or
   (2) A former employee . . . who retains civil service
   retirement annuity rights based on a separation
   from a position in which retirement deductions
   were properly withheld and remain . . . .
5 C.F.R. § 831.112(a)-(b) (2011). In order to make depos-
its to the CSRS, former employees must therefore be
5                                            AQUINO   v. OPM


eligible for CSRS annuity payments based on prior cov-
ered service during which proper deductions were made.
In other words, § 831.112(a)(2) “allows a ‘former employee’
to make a deposit only if that former employee is already
covered by the CSRS.” Dela Rosa v. Office of Pers. Mgmt.,
583 F.3d 762, 765 (Fed. Cir. 2009).
    A federal employee seeking retirement benefits has
the burden of proving by a preponderance of the evidence
that he or she is entitled to such benefits. 5 C.F.R.
§ 1201.56(a)(2) (2011).
      B. Ms. Aquino Is Not Eligible to Participate
                     in the CSRS
    Ms. Aquino does not dispute the MSPB’s finding that
she never held a covered service position. We see no
evidence that CSRS deductions were made from Ms.
Aquino’s pay and Ms. Aquino’s SF-50s reflect her retire-
ment plan as “None” or “Other,” which we have held is
important evidence of a lack of participation in the CSRS.
See Rosete v. Office of Pers. Mgmt., 48 F.3d 514, 519-520
(Fed. Cir. 1995). Moreover, “[t]he absence of deductions is
an indication that an employee was not serving in a
covered position. A retroactive deposit does not convert a
non-covered position into a covered position.” Quiocson,
490 F.3d at 1360. Ms. Aquino neither held a covered
position nor can she retroactively satisfy the covered
service requirement of 5 U.S.C. § 8333(b).
    This case is similar to Dela Rosa v. Office of Pers.
Mgmt., where the claimant Mr. Dela Rosa had 25 years of
creditable service but no covered service, and his SF-50s
indicated that no deductions were withheld from his pay
for the CSRS program. 583 F.3d at 762. After his retire-
ment, Mr. Dela Rosa sought to deposit funds into the
CSRS to obtain annuities. Id. at 763. We affirmed the
MSPB’s denying his attempt to make such deposits be-
AQUINO   v. OPM                                           6


cause he was not a “former employee” under 5 C.F.R.
§ 831.112(b) since he did not satisfy the criteria for CSRS
eligibility, namely, five years of creditable service and at
least one year of covered service. Id. at 765-66; 5 U.S.C.
§ 8333(a)-(b)
    Like the claimant in Dela Rosa, Ms. Aquino argues
that she is a former employee under § 831.112(a)(2)
entitled to make deposits into the CSRS, even though this
court has been clear that that provision “allows a ‘former
employee’ to make a deposit only if that former employee
is already covered by the CSRS.” 583 F.3d at 765. Be-
cause Ms. Aquino never held “a position in which retire-
ment deductions were properly withheld and remain,” she
is not a “former employee” under the plain language of
§ 831.112(a)(2) and cannot make deposits into the CSRS
fund.
    Ms. Aquino nevertheless contends that her creditable
service alone is sufficient to permit her to make deposits
into the CSRS, relying solely on Dorry v. Office of Pers.
Mgmt., 35 M.S.P.R. 264 (1987) for this proposition. Dorry
does not stand for such a proposition and is clearly distin-
guishable. In Dorry the claimant Ms. Dorry had four-and-
a-half years of covered service in the Peace Corps, as well
as two years of other service in Iran not at that time
deemed creditable. Id. at 265. Because her two years in
Iran were not creditable, she was six months short of the
five years of total creditable service required under
§ 8333(a) to participate in the CSRS. Upon Ms. Dorry’s
separation from her position, prior pay deductions were
refunded to her. Id. The District Court for the District of
Columbia later ruled in a class action suit that the posi-
tion in Iran in which Ms. Dorry served was creditable,
and the Civil Service Commission ultimately stipulated
and agreed to accept retroactive deposits by the class
members regardless of whether they were retired. Id. at
7                                            AQUINO   v. OPM


265-66. Upon learning of the district court ruling, Ms.
Dorry sought to redeposit the retirement deductions that
were refunded to her upon her separation. Id. The MSPB
permitted Ms. Dorry to redeposit the funds since her now
creditable service in Iran brought her total years of cred-
itable service to more than the five years required by
§ 8333(a) for participation in the CSRS. Id. at 265-66.
    In contrast to the claimant in Dorry, Ms. Aquino has
no record of covered service. There is also no evidence in
this case of a stipulation by the Civil Service Commission
to accept Ms. Aquino’s deposits as a retiree. We previ-
ously distinguished Dorry from the facts in Dela Rosa for
these same reasons. 583 F.3d at 765 n. 3. Dorry is simply
inapposite to the facts before us, and Dela Rosa remains
controlling.
      C. Other Positions Advanced By Ms. Aquino
                 Are Without Merit
    Ms. Aquino raises a number of other ancillary issues
that we now address in turn.
    First, Ms. Aquino contends that this court’s decision
in Quiocson, in which we stated that retroactive deposits
cannot convert a non-covered position into a covered
position, should be rejected as contrary to law. 490 F.3d
at 1360. Ms. Aquino fails to identify any law in which
Quiocson is in conflict, much less how Quiocson is incon-
sistent with the plain language of 5 U.S.C. § 8333(a)-(b)
and 5 C.F.R. § 831.112(a) which fully support the state-
ment made in Quiocson now contested by Ms. Aquino.
Indeed, this court subsequently relied on Quiocson to
support its decision in Dela Rosa. 583 F.3d at 765 (con-
cluding that section 831.112(a)(2) “allows a ‘former em-
ployee’ to make a deposit only if that former employee is
already covered by the CSRS”).
AQUINO   v. OPM                                           8


     Second, Ms. Aquino contends that the AJ failed to
consider and apply 5 C.F.R. § 831.303(a), which she
believes entitles her to annuity rights or the right to make
a deposit pursuant to § 8334(c).          She argues that
§ 831.112(a) should not have been relied upon by the AJ
since it conflicts with § 831.303(a). Section 831.303(a) by
its terms only applies to “employee[s] . . . under the civil
service retirement system,” and so is inapplicable to Ms.
Aquino for reasons discussed above.          In any event,
§ 831.303(a) does not speak to whether Ms. Aquino may
make any deposits into the CSRS. Unlike § 831.112(a),
which provides definitions for which “employees” and
“former employees” may deposit or redeposit funds into
the CSRS, § 831.303(a) by its terms provides only for how
creditable service—not covered service—is to be deter-
mined and factored into annuity calculations.            See
§ 831.303(a) (“Periods of creditable civilian service per-
formed by an employee . . . for which retirement deduc-
tions have not been taken shall be included in
determining length of service to compute annuity . . . .”).
    Third, Ms. Aquino cites MSPB’s decision in Floresca v.
Office of Pers. Mgmt. to attempt to bolster her argument
that she is entitled to deposit funds into the CSRS. 69
M.S.P.R. 93 (1995). Floresca lends no support to Ms.
Aquino, however, because in that case the MSPB held
that “only employees may deposit money into the Retire-
ment Fund,” and since the claimant in that case had not
held a covered position he was not an eligible employee to
deposit funds. Id. at 98. As discussed above, Ms. Aquino
was likewise not an employee subject to the CSRS.
    We have considered the remainder of Ms. Aquino’s
arguments made in her brief and find them not pertinent
to the questions before us, or otherwise without merit.
9                                       AQUINO   v. OPM


                III.   CONCLUSION
    We see no reason to set aside the decision of the
MSPB, which was well reasoned, grounded in applicable
law, and supported by substantial evidence. The judg-
ment of the MSPB is therefore
                       AFFIRMED
                         COSTS
    No costs.
