NOTE: This disposition is nonprecedential.

 

United States Court of Appeals 

for the Federal Circuit ______________________ 

ROLANDO A. LABIO,

Petitioner

v.

OFFICE OF PERSONNEL MANAGEMENT,

Respondent

______________________ 

2018-1796

______________________ 

Petition for review of the Merit Systems Protection 

Board in No. SF-0831-18-0026-I-1.

______________________ 

Decided: November 7, 2018

______________________ 

ROLANDO A. LABIO, San Juan, San Narciso, Zambales, 

Philippines, pro se. 

 DAVID PEHLKE, Commercial Litigation Branch, Civil 

Division, United States Department of Justice, Washington, DC, for respondent. Also represented by DEBORAH 

ANN BYNUM, ROBERT EDWARD KIRSCHMAN, JR., JOSEPH H.

HUNT. 

 ______________________ 
2 LABIO v. OPM

Before NEWMAN, LOURIE, and CLEVENGER, Circuit 

Judges.

PER CURIAM. 

Pursuant to 5 U.S.C. § 7703(b)(1), Rolando Labio petitions for review of the final decision of the Merit Systems 

Protection Board (“Board”), which affirmed a reconsideration decision by the Office of Personnel Management 

(“OPM”) denying his May 11, 2017, application for deferred annuity. Labio v. Office of Pers. Mgmt., No. SF–

0831–18–0026–I–1 (M.S.P.B. Feb. 1, 2018). We deny Mr. 

Labio’s petition.1

I 

Mr. Labio was employed as a civilian by the Department of the Navy in Subic Bay, Philippines from September 27, 1966, through July 17, 1992. In order to qualify 

for a deferred annuity, a federal employee must have 

performed at least five years of creditable civilian service, 

and must have served at least one of his last two years of 

federal service in a covered position, meaning one that is 

subject to the Civil Service Retirement Act. See 5 U.S.C.

§ 8333(a)–(b); Quiocson v. Office of Pers. Mgmt., 490 F.3d 

1358, 1360 (Fed. Cir. 2007).

OPM denied Mr. Labio’s application, initially and on 

reconsideration, on the ground that Mr. Labio cannot 

 

1 Mr. Labio petitions this Court for review of the 

Board’s final decision, pursuant to 5 U.S.C. § 7703(a)(1) 

and (b)(1) (stating that an employee adversely affected by 

a final order or decision of the Board may obtain judicial 

review by filing a petition to review the final order or 

decision). We have jurisdiction to decide the merits of his 

petition pursuant to 28 U.S.C. § 1295(a)(9), which specifies that Mr. Labio’s appeal to this Court is only by way of 

5 U.S.C. § 7703(b)(1).
LABIO v. OPM 3

qualify for a deferred annuity because his records show 

that he was never employed in a position that is subject to 

the Civil Service Retirement Act. In other words, his 

employment record shows that he lacks the required 

service in a covered position.

The Board’s Administrative Judge’s decision, which 

became final on March 8, 2018, affirmed OPM’s conclusion. Because Mr. Labio’s federal employment records 

reveal no service in a covered position, the Board held 

that Mr. Labio fails to qualify for a deferred annuity. The 

Board’s decision considered and rejected an argument 

made by Mr. Labio that a regulation, namely 5 C.F.R. 

§ 831.303(a), serves to convert service in a creditable 

position into service in a covered position, and thereby 

entitles Mr. Labio to a deferred annuity, albeit a reduced 

one. That argument was rejected because, in the Board’s 

view, the cited regulation deals with length of service 

determinations for purposes of annuity computation, not 

annuity entitlement.

Mr. Labio timely petitioned this Court for review of 

the Board’s final decision. We have jurisdiction under 

28 U.S.C. § 1295(a)(9). The scope of our appellate review, 

however, is limited: we must affirm the Board’s final 

decision unless we determine that it is arbitrary, capricious, an abuse of 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. Grover v. Office of Pers. 

Mgmt., 828 F.3d 1378, 1382 (Fed. Cir. 2016) (citing 

5 U.S.C. § 7703(c)). As the Board’s final decision in this 

case satisfies none of those tests, we affirm the Board’s 

final decision and therefore deny Mr. Labio’s petition for 

review. 

II

Mr. Labio does not challenge his employment record: 

on its face, it shows no covered service. Again, he relies 
4 LABIO v. OPM

on 5 C.F.R. § 831.303(a) to convert non-covered service 

into covered service. The Board’s final decision noted that 

this Court previously rejected Mr. Labio’s § 831.303(a) 

argument in our non-precedential decision in Fontilla v. 

Office of Personnel Management, 482 F. App’x 563, 564–65 

(Fed. Cir. 2012). We also rejected that argument in 

Rosimo v. Office of Personnel Management, 448 F. App’x 

60, 62 (Fed. Cir. 2011), and yet again in Garcia v. Office of 

Personnel Management, 660 F. A’ppx 930, 932 (Fed. Cir. 

2016). We recently issued our precedential opinion in 

Lledo v. Office of Personnel Management, 886 F.3d 1211 

(Fed. Cir. 2018), which endorses our previous nonprecedential decisions, and squarely rejects any notion that the 

cited regulation bears on entitlement to a deferred annuity under 5 U.S.C. § 8333(a)–(b). Id. at 1214. 

Because Mr. Labio’s petition for review depends on his 

unavailing § 831.303(a) argument, and because the record 

demonstrates that he otherwise fails to qualify for a 

deferred annuity, we affirm the Board’s final decision and 

deny Mr. Labio’s petition for review.

PETITION DENIED

COSTS

No costs.