NOTE: This disposition is nonprecedential. 

United States Court of Appeals 

for the Federal Circuit 

__________________________ 

CRESENCIO FONTILLA, 

Petitioner, 

v. 

OFFICE OF PERSONNEL MANAGEMENT, 

Respondent. 

__________________________ 

2012-3013 

__________________________ 

Petition for review of the Merit Systems Protection 

Board in No. SF0831110050-I-1. 

__________________________ 

Decided: May 11, 2012 

__________________________ 

CRESENCIO FONTILLA, of Zambales, Philippines, pro 

se. 

ANTONIA R. SOARES, 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 STEVEN J.

GILLINGHAM, Assistant Director. 

__________________________ 
2 FONTILLA v. OPM

Before RADER, Chief Judge, PLAGER and LINN, Circuit 

Judges. 

PER CURIAM. 

Cresencio Fontilla (“Fontilla”) appeals from a final decision of the Merit Systems Protection Board (“Board”) 

finding that he is not eligible to make a deposit into the 

Civil Service Retirement and Disability Fund (“Fund”). 

Because the Board’s decision is in accordance with the law 

and is supported by substantial evidence, this court 

affirms. 

BACKGROUND

 Fontilla held a series of excepted service appointments at the U.S. Navy Public Works Center, Subic Bay, 

Philippines from 1967 to 1986 when he was terminated 

based on his physical inability to perform his assigned 

tasks. During this employment, Fontilla’s SF-50 forms—

which are issued when personnel action is taken—

designated his retirement status as either “none” or 

“other,” and no deductions were ever withheld for the 

Civil Service Retirement System (“CSRS”). Fontilla 

applied for retirement under the CSRS in 2006, but the 

Office of Personnel Management (“OPM”) denied his 

application because none of his positions were subject to 

the Civil Service Retirement Act (“Act”). 

Fontilla subsequently filed an Application to Make 

Deposit or Redeposit with OPM in 2007 and again in 

2008, which OPM denied because he was not a current 

employee in a covered position. Fontilla then appealed to 

the Board, which issued its initial decision affirming 

OPM’s decision on January 24, 2011. The Board denied 

Fontilla’s petition for review on September 7, 2011, making the initial decision final. The Board found that Fontilla was not a current employee and was not a covered 

employee eligible to make a deposit. The Board also 

found that 5 C.F.R. § 831.201(a) precluded coverage of 
FONTILLA v. OPM 3

Fontilla’s non-permanent service under the Act. Furthermore, the Board found that Fontilla failed to show 

that his service was ever covered by the Act because his 

SF-50 forms never indicated that his positions were 

covered and no CSRS retirement contributions were ever 

withheld.

Fontilla timely petitioned this court for review. We 

have jurisdiction under 28 U.S.C. § 1295(a)(9). 

DISCUSSION

 This court must affirm a decision of the Board 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). “Substantial evidence is ‘such 

relevant evidence as a reasonable mind might accept as 

adequate to support a conclusion.’” McEntee v. Merit Sys. 

Prot. Bd., 404 F.3d 1320, 1325 (Fed. Cir. 2005) (quoting 

Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). 

Fontilla, as the applicant for retirement benefits, had “the 

burden of proving, by a preponderance of the evidence, 

[his] entitlement to the benefits.” 5 C.F.R. 

§ 1201.56(a)(2). A preponderance of the evidence is “the 

degree of relevant evidence that a reasonable person, 

considering the record as a whole, would accept as sufficient to find that a contested fact is more likely to be true 

than untrue.” Id. § 1201.56(c)(2). 

 “To qualify for a civil service retirement annuity, a 

government employee ordinarily must complete at least 

five years of creditable service, and at least one of the two 

years prior to separation must be ‘covered service,’ i.e., 

service that is subject to the [Act].” Quiocson v. Office of 

Pers. Mgmt., 490 F.3d 1358, 1360 (Fed. Cir. 2007); 5 

U.S.C. § 8333. Service under temporary or indefinite 
4 FONTILLA v. OPM

appointments is excluded from coverage by the Act. 

Quiocson, 490 F.3d at 1360; 5 C.F.R. § 831.201(a). 

Fontilla does not appear to dispute the facts on which 

the Board relied. There is also no disagreement that 

Fontilla’s service was “creditable.” The dispute is 

whether that creditable service, independent of whether it 

was covered service, provides Fontilla with rights under 

the Act. 

Fontilla’s main argument on appeal is that he is only 

required to have creditable service to make a contribution 

to the Fund. Based on 5 C.F.R. § 831.303(a), he argues 

that all creditable service, regardless of whether it was 

covered, is included to calculate a benefit under the Act. 

He argues that § 831.303(a) retroactively made all periods 

of federal employment before October 1, 1982 covered by 

the Act and creditable toward retirement. Fontilla asserts that when his position became covered by the Act, it 

was not subject to CSRS deductions, but it was subject to 

deposits under 5 U.S.C. § 8334(c). Moreover, he argues 

that 5 C.F.R. § 831.303(a) waived the deposit requirement 

for his service before October 1, 1982, and his rights 

under the Act attached when he left federal employment. 

Fontilla also argues that the requirements of 5 C.F.R. 

§ 831.112(a) do not apply to him because he is not a 

current employee, is not attempting to make a deposit 

under 5 U.S.C. § 8334(a), and seeks to make a deposit for 

service before October 1, 1982. He interprets 5 C.F.R. 

§ 831.303(a)—addressing service before October 1, 1982—

to control deposits under 5 U.S.C. § 8334(c), and 5 C.F.R. 

§ 831.112(a) to control deposits under 5 U.S.C. § 8334(a). 

In the alternative, Fontilla argues that he met the requirements of 5 C.F.R. § 831.112(a). 

The government argues that because Fontilla’s service 

was not covered, he was not eligible to make a deposit. 

The government contends that 5 C.F.R. § 831.201(a) bars 
FONTILLA v. OPM 5

temporary or indefinite employees from the CSRS, and no 

evidence indicates that Fontilla was covered by the Act. 

The government further contends that 5 C.F.R. 

§ 831.303(a) does not convert creditable service into 

covered service, and asserts that individuals that are not 

covered cannot make a deposit under 5 U.S.C. § 8334(c). 

The government’s interpretation of the statutes and 

regulations is correct. An individual must be an “employee” as defined by 5 C.F.R. § 831.112(a) to make a 

deposit under any provision of 5 U.S.C. § 8334, meaning 

that the requirements of 5 C.F.R. § 831.112(a) are not 

limited by date and do not apply only to 5 U.S.C. 

§ 8334(a). See 5 C.F.R. § 831.112(a) (“A person may make 

a deposit or redeposit under section 8334 of title 5, United 

States Code, if he or she is an ‘employee.’”). Section 

831.112(a) requires an employee to be either a current 

employee or a “former employee . . . who retains civil 

service retirement annuity rights.” Id. An individual 

cannot retain rights if the individual never had the rights. 

Dela Rosa v. Office of Pers. Mgmt., 583 F.3d 762, 765 

(Fed. Cir. 2009). Because there is no indication in the 

record that Fontilla was ever covered by the Act, he had 

no rights to retain under it. Thus, he cannot be considered an employee under § 831.112(a), which is a precondition of any request to make a deposit. See id. 

Additionally, Fontilla’s temporary or indefinite appointments were specifically excluded from CSRS coverage by 5 

C.F.R. § 831.201(a). See Quiocson, 490 F.3d at 1360. 

Therefore, Fontilla is not eligible to make a deposit under 

5 U.S.C. § 8334(c). 

5 C.F.R. § 831.303(a) allows those already covered by 

the Act to include certain creditable service in calculating 

the annuity. There is nothing in the language of 5 C.F.R. 

§ 831.303(a) to support the argument that it retroactively 

converted “creditable service” into “covered service” or 

changed who qualified for an annuity. Section 831.303(a) 
6 FONTILLA v. OPM

does not supplant § 831.112 and cannot circumvent the 

covered service requirement of 5 U.S.C. § 8333(b). Because 5 C.F.R. § 831.303(a) is inapplicable to Fontilla, he 

cannot rely on it either to deem his creditable service to 

be covered service or to waive any deposit requirement. 

This court has considered Fontilla’s other arguments 

and concludes that they are without merit. 

CONCLUSION

For the foregoing reasons, this court affirms the 

Board’s decision. 

AFFIRMED 

COSTS

No costs.