Case: 23-1960 Document: 18 Page: 1 Filed: 03/12/2024
`
`
`
`NOTE: This disposition is nonprecedential.
`
`United States Court of Appeals
`for the Federal Circuit
`______________________
`
`GREGORIO M. BAGAT,
`Petitioner
`
`v.
`
`OFFICE OF PERSONNEL MANAGEMENT,
`Respondent
`______________________
`
`2023-1960
`______________________
`
`Petition for review of the Merit Systems Protection
`Board in No. SF-0831-16-0798-I-1.
`______________________
`
`Decided: March 12, 2024
`______________________
`
`GREGORIO M. BAGAT, Zambales, Philippines, pro se.
`
`
` KRISTIN ELAINE OLSON, Commercial Litigation Branch,
`Civil Division, United States Department of Justice, Wash-
`ington, DC, for respondent. Also represented by REGINALD
`THOMAS BLADES, JR., BRIAN M. BOYNTON, PATRICIA M.
`MCCARTHY.
` ______________________
`
`
`
`
`
`
`
`
`NOTE: This disposition is nonprecedential.
`
`United States Court of Appeals
`for the Federal Circuit
`______________________
`
`GREGORIO M. BAGAT,
`Petitioner
`
`v.
`
`OFFICE OF PERSONNEL MANAGEMENT,
`Respondent
`______________________
`
`2023-1960
`______________________
`
`Petition for review of the Merit Systems Protection
`Board in No. SF-0831-16-0798-I-1.
`______________________
`
`Decided: March 12, 2024
`______________________
`
`GREGORIO M. BAGAT, Zambales, Philippines, pro se.
`
`
` KRISTIN ELAINE OLSON, Commercial Litigation Branch,
`Civil Division, United States Department of Justice, Wash-
`ington, DC, for respondent. Also represented by REGINALD
`THOMAS BLADES, JR., BRIAN M. BOYNTON, PATRICIA M.
`MCCARTHY.
` ______________________
`
`
`
`
`
`
`Case: 23-1960 Document: 18 Page: 2 Filed: 03/12/2024
`
`2
`
`BAGAT v. OPM
`
`Before LOURIE, LINN, and STOLL, Circuit Judges.
`PER CURIAM
` Gregorio M. Bagat (“Bagat”), a federal employee from
`1971 until 1992, petitions for review of a March 21, 2023
`final order of the Merit Systems Protection Board (“Board”)
`denying his application for deferred annuity retirement
`benefits under the Civil Service Retirement System
`(“CSRS”). For the following reasons, we affirm.
` We must affirm a Board decision unless it is “arbitrary,
`capricious, an abuse of discretion, or otherwise not in ac-
`cordance with law; obtained without procedures required
`by law, rule, or regulation having been followed; or unsup-
`ported by substantial evidence.” 5 U.S.C. § 7703(c)(1)–(3).
`Petitioner bears the burden of proving entitlement to re-
`tirement benefits. Cheeseman v. OPM, 791 F.2d 138, 141
`(Fed. Cir. 1986).
`
`To establish eligibility for a CSRS annuity, petitioner
`must satisfy two statutory prerequisites: (1) five years of
`creditable civilian service, and (2) “at least one of his last
`two years of federal service in a covered position—i.e., ser-
`vice that is subject to the Civil Service Retirement Act.”
`Lledo v. O.P.M., 886 F.3d 1211, 1213 (Fed. Cir. 2018) (em-
`phasis added); 5 U.S.C. § 8333(a)–(b) (“An employee or
`Member must complete . . . at least 1 year of creditable ci-
`vilian service during which he is subject to this subchap-
`ter.”).
`The Board held that Bagat failed to satisfy the second
`prerequisite and was thus ineligible for a CSRA annuity.
`Bagat argues that 5 U.S.C. § 8334(c) and 5 C.F.R.
`§ 831.303(a) allow him to make a deposit “without any ser-
`vice covered by CSRS” and that even without a deposit he
`is entitled to an annuity. Petition at 9, 13.
`The Board’s holding that Bagat is not eligible for a
`CSRA annuity is supported by substantial evidence and
`not contrary to law or arbitrary or capricious. The Board
`
`
`
`Case: 23-1960 Document: 18 Page: 3 Filed: 03/12/2024
`
`BAGAT v. OPM
`
`3
`
`held that all the positions Bagat held during his federal
`tenure were either indefinite or not-to-exceed appoint-
`ments in the excepted service, which Bagat does not chal-
`lenge. J. App’x at 28. Those positions are not “covered”
`positions under the CSRA, even if they are full-time posi-
`tions. Lledo, 886 F.3d at 1213 (“Temporary, intermittent,
`term, and excepted indefinite appoints are not covered po-
`sitions.”); Quiocson v. OPM, 490 F.3d 1358, 1360 (Fed. Cir.
`2007) (holding that temporary and indefinite appointments
`are excluded from CSRS retirement coverage); 5 C.F.R.
`§ 831.201(a) (excluding groups of employees from coverage
`under subchapter III of chapter 83 of title 5, including “In-
`termittent” employees and those serving under indefinite
`appointments). See also Petition at 12 (agreeing that OPM
`may exclude “temporary, intermittent, term, and excepted
`indefinite appointment[s]” from CSRS coverage). Bagat is
`thus outside the purview of the CSRA and is not entitled to
`an annuity under that scheme.
`Moreover, as the Board correctly noted, Bagat never
`withheld any income for the CSRS, and his SF-50 forms
`indicated that his retirement benefits were designated as
`“other” rather than “CSRS.” J. App’x at 13—16. An award
`of retirement benefits under a system other than CSRS
`precludes a CSRS annuity award. Quiocson, 490 F.3d at
`1360 (rejecting eligibility for CSRS benefits because peti-
`tioner’s appointment forms showed that the positions were
`not covered by the CSRS and because petitioner received
`retirement benefits under a non-CSRS plan).
`Bagat argues that his failure to make a timely deposit
`is excusable and does not undermine his eligibility for an
`annuity. Petition at 8 (discussing Mata v. OPM, 652 F.
`App’x 931 (Fed. Cir. 2016) (non-precedential)). Bagat’s ar-
`gument is misplaced. He is ineligible for an annuity not
`based on his having failed to make a timely deposit, but
`because his employment was not covered by the CSRA.
`
`
`
`Case: 23-1960 Document: 18 Page: 4 Filed: 03/12/2024
`
`4
`
`BAGAT v. OPM
`
`Bagat also argues that 5 U.S.C. § 8334(c) and 5 C.F.R.
`§ 831.303(a) converted his creditable service to covered ser-
`vice. Bagat is incorrect. 5 U.S.C. § 8334(c) allows an em-
`ployee “credited with civilian service after July 31, 1920,
`for which retirement deductions or deposits have not been
`made” to make a deposit, but that provision excludes em-
`ployees like Bagat, who were only employed in intermittent
`or indefinite positions and says nothing about expanding
`the category of persons eligible for a CSRA annuity. 5
`C.F.R. § 831.303(a) allows an employee to include “[p]eri-
`ods of creditable service . . . in determining length of service
`to compute annuity,” and allows an employee who has not
`made a deposit to be credited with a constructive deposit
`with a 10% penalty. But this provision “does not alter the
`definition of covered service or convert creditable service
`into covered service.” Lledo, 886 F.3d at 1214 (citing sev-
`eral cases). See also 5 C.F.R. § 831.201(a) (excluding cer-
`tain employees from operation of 5 U.S.C. § 8334(c) and
`related CSRA provisions).
`We find no merit to any of the other arguments raised
`in the petition. For these reasons, the decision of the MSPB
`is affirmed.
`
`AFFIRMED
`COSTS
`Each party shall bear its own costs.
`
`
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