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 (B oard) affirmed the Office of Personnel Management’s (OPM) denial of Mr. Alfredo Se ra’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 hi s 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 per iod 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 r edeposited his refunded retirement contributions, or made any additi onal retirement contributions during any subsequent periods of employment. In additi on, the Board further held that because his second period of employment was a tempor ary appointment of le ss 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 credi table because he served as an indefinite appointment, which is specifically excluded from retirement coverage. II. This court possesses limit ed 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 otherwis e 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

06-3105 2Bd. , 331 F.3d 1307, 1311 (Fed. Cir. 2003). “Subst antial 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 dem onstrate 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 endi ng with a position covered under CSRA. 5 U.S.C. § 8333(a)-(b) (2005). Indefinite appointments are s pecifically ex cluded from retirement coverage. 5 C.F. R. § 831.201(a)(13) (2006). Cove red service is only service that is not specifically ex cluded 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 se cond and third periods of service were both specifically excluded from retirement cove rage because the second was temporary, and the third, indefinite. In addi tion, the evidence shows that any retirement contributions that were withheld from his pay were ref unded. Mr. Sera coul d 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

06-3105 3during the second and third peri od. 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 t hat 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 argum ent, OPM, pursuant to its st atutory authority to exclude employees whose employment is temporar y or intermittent, established in 1965 that service under indefinite appoint ments 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 se cond argument, being “eligible” does not entitle an employee to a deferred annuity, parti cularly when the employee has provided no evidence of retirement contri butions 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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