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. Ragado s petitions for review of t he final decision of the Merit Systems Protection Board (“Boar d”) that sustained the recons ideration decision of the Office of Personnel Management (“OPM”) denyin g 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

.DISCUSSI ON
I Mr. Ragados is a Filipino national who wa s employe d in civ i lian service by the Department of the Navy at Subi c Bay, Philippines, during two periods of service. He was hired on Decem ber 22, 1947, and remai ned employed until July 22, 1949, at which time he was separated by a reduction in force. Mr. Ragados began his se cond period of service on March 21, 1951, and he was empl oyed by the Navy until he retired on November 24, 1989. On October 3, 2002, Mr. Ragados subm itted to OPM an application for a deferred retirement annuity. Upon concludi ng that the positions in which Mr. Ragados had been employed were not c o vered by t he CSRA, OPM deni ed the application. Mr. Ragados s ought reconsideration of that decision, and on May 28, 2004, OPM issued a reconsider ation dec ision, again deny ing Mr. Ragados’ application. Mr. Ragados appealed t he recons ideration decision to the Boar d. In an initial decision da ted October 26, 2004, the administrative judge (“AJ”) to whom the ca se was assig ned affirmed OPM’s ruling. Ragados v. Offi ce of Pers. Mgm t

. , No. SF0831040671-I-1, slip op. (M.S.P.B. Oct. 26, 2004) (“ Initial Dec i sio n ”). The Initial Decision bec ame the final decision of the Board when the Board denied Mr. Ragados’ petiti on for review for failur e to meet the criteria for review set forth at 5 C.F.R. § 1201.115(d). Fina l Dec i sion . This appeal followed.
II We have j u risdiction over appeals from t he Board under 28 U.S. C. § 1295(a)(9). The decis ion of the Board will be affirmed unless it is arbitr ary, capricious, an abuse of

05-3351 2discretion, or otherwis e not in accordance with law; obtained without procedur es required by law, rule, or r egulation hav ing been followe d ; or unsupported by s u bstantial evidenc e. 5 U.S. C. § 7703(c). To receive an annuity under the CSRA, an individual must meet the requirem ents 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). Be cause Mr. Ragados’ first period of service was from 1947 to 1949, the Retirem ent Act of January 24, 1942, determines his elig ibility fo r that per iod of service. The 1942 Act requ ired an employee to have a tot a l of five year s of creditable servic e at the time of separation. Se e 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 y ears 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 P e rs. Mgm t

. , 905 F.2d 387 (Fed. Cir. 1990) (findi ng no entitlement to annuit y where a civilian Navy employee completed le ss than five years of creditable servic e 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 h a s only be en amend ed in ways immaterial to this case. See 5 U. S.C. § 8333. Section 8333(a) pr ovides: “An employee must complete at least 5 years of civilian service bef ore he is eligible for an annuit y under this subchapt er.” Section 8333(b) furt her requires in relevant part that “[a]n employee or Member must complete, within t he last 2 years before any separation from service . . . at least 1 year of creditable c i v ilian service during whic h he is subject to this

05-3351 3subchapter before he or his survivors are eligible for an nuity . . . .” There is no dis p ute that Mr. R agados ser v ed well in excess of fi ve years. His entitlement to an annuity turns upon whether the covered service requirem ent of section 8333(b) was satisfied. Mr. Ragados’ second period of servic e began under an excepted-intermittent appointment on March 21, 1951. Block #20 of the St andard Fo r m 50 “Notification of Personnel Action” (“SF-50”) for the appoint ment 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 t he 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 specifical ly excluded from CSRA c o verage. See Ros e te v. Office of Pers. Mgm t

. , 48 F.3d 514, 520 ( F ed. Cir. 1995) (upholding the e xclusion in 5 C.F.R. § 831.201(a) of employ ees holding indefinite appointm ent s from receiving CSRA retirement benefits). Significantly, all SF-50s ever is sued conc erning Mr. Ragados reflect that his retirement status was “none” or “other,” namely other t han the CSRA. Moreover, the relevant documents indicate that no retire m ent contributions were ever wit hheld from Mr. Ragados’ pay. See id. at 516 (“Covered service only includes an appointment . . . for which an employ ee must d eposit part of his or her pay into the Civil Service Retirement and Disability Fund.”). Finally, the AJ found that Mr. Ragados was requir ed to retire pursuant to a collectiv e bargaining agreement that afforded him retirement pay in accordance with the Filipino Employment Pe rsonnel Instructions. Initial Dec i sion , slip op. at 6. E m ployees subject to another retirement system for g o vernment employees are exc l uded from

05-3351 4coverage 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) pr ovides that the Retirement Act does not include an employee subject to a nother retire ment 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 t he inquiry into whethe r he was a permanent employee. Initial Dec i sion , slip op. at 7. The Board reasoned that the tenure group status is used primarily to det ermine an employee’s righ ts in a reduction in force, but i s not determinative of ei ther 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 P e rsonnel Management , 57 M.S.P.R. 598, 602 n.4 (1993), aff’d , 16 F.3d 421 ( F ed. Cir. 1993), as standing for the proposition that tenure groups may be considered in dete rmining the nature of the underlying appointment “i f the personnel records are inco mplete and the em ployee was at any time subject to the CSRA.” Initia l Dec i sion , s lip op. at 7. However, bec ause the Board found that Mr. Ragad os’ personnel records appeared com p lete and because n o evidenc e was present ed demons trating that he was ev er covered under the CSRA, the Board found that the tenure group designation was ins u fficient to overcome the other evidenc e in the record. Id. , slip op. at 8. We s ee no error in this finding. Lastly, the fact that Mr. Ragados was em ployed during the transition period in which administering authority over CSRA c o verage was transferred from the President to the newly reorganiz ed Civil Service Com m ission is without cons equenc e. Executiv e Order 10,180, which m ade appointments to Executive br anch pos itions nonpermanent and exc l uded them from CSRA benefits, was repealed effect ive January 23, 1955. The

05-3351 5Civil Service Commission regulation excludi ng indefinite appoin tees from CSRA coverage was not pr omulgated until October 30, 1956. Ho wever, the AJ correctly observed that Feder al Circuit case law has held that the applic able retirement

exc l usions concerning indefin ite appointment employees rema ined 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 indefinit e appoint ments between the revocation of Executive Order 10,180 and t he promulgation of the Civil Service Commission’s regulation 5 C.F.R. § 29.2 “may well have been eligible for CS R[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 exc l usion of nonpermanent em ployees from coverage b y the CSRA effected by Executive Order No. 10,180 [remained in effect] until the Civi l Service Commission promulgated new regulations , which it did in 1956, thus preventing the appellant’s service betw een J anuary 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 wit hout merit. For the foregoing reasons, the decisi on of the Board is affirmed. Each party shall bear its own costs.

05-3351 6