Labio v. Opm

NOTE: This disposition is nonprecedential.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, Washing-
ton, 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 peti-
tions for review of the final decision of the Merit Systems
Protection Board (“Board”), which affirmed a reconsidera-
tion decision by the Office of Personnel Management
(“OPM”) denying his May 11, 2017, application for de-
ferred 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 Depart-
ment of the Navy in Subic Bay, Philippines from Septem-
ber 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 speci-
fies 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 conclu-
sion. 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, capri-
cious, an abuse of discretion, or otherwise not in accord-
ance with law, obtained without procedures required by
law rule or regulation having been followed, or unsup-
ported 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 nonprece-
dential decisions, and squarely rejects any notion that the
cited regulation bears on entitlement to a deferred annui-
ty 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.