Background
Cu N. Duong worked for the Army as a civilian interpreter and translator in Vietnam from February 1969 until the United States withdrew from Vietnam in April 1975. Duong maintained that employment paperwork was lost during the war. In 2021, he applied to the Office of Personnel Management for a deferred retirement annuity under the Civil Service Retirement System.
OPM denied the application and Duong’s request for reconsideration because he had not shown that he served in a CSRS-covered position for at least one of his final two years of federal service. An administrative judge affirmed, finding no evidence that CSRS contributions had been deducted from Duong’s pay and noting his former supervisor’s testimony that Duong was paid from a bag of cash delivered by plane. The Merit Systems Protection Board affirmed, making the administrative judge’s decision final, and Duong petitioned the Federal Circuit for review.
The Court’s Holding
The Federal Circuit affirmed in a nonprecedential per curiam opinion. The court held that substantial evidence supported the Board’s determination that Duong had not proved by a preponderance of the evidence that his Army position was covered by CSRS. Although his records established civilian federal employment that could qualify as creditable service, they did not establish the narrower requirement of covered service subject to the Civil Service Retirement Act.
The court rejected Duong’s argument that the Board improperly treated the absence of payroll deductions as dispositive. It explained that the Board used the apparent absence of deductions as one indication that the position was not covered and also relied on the absence of corroborating evidence about Duong’s appointment or CSRS contributions. Even without the finding about deductions, the complete lack of evidence establishing covered service meant Duong had not carried his burden. The court also recognized Duong’s distinguished service and sacrifices but explained that equitable considerations cannot alter Congress’s statutory requirements for payment of retirement benefits.
Key Takeaways
- Federal civilian employment may constitute creditable service without qualifying as CSRS-covered service.
- An applicant seeking a CSRS annuity bears the burden of proving entitlement, including the required period of covered service, by a preponderance of the evidence.
- The absence of CSRS payroll deductions may indicate that a position was not covered, although the Board did not treat that fact alone as dispositive here.
Why It Matters
The decision underscores the evidentiary difficulty facing former federal workers whose employment records are missing or incomplete. Proof of federal employment alone does not establish eligibility for a CSRS annuity; the applicant must also produce evidence that the relevant appointment was subject to the retirement system.
It also illustrates the limits of equitable relief in federal-benefits cases. However compelling an applicant’s service and personal circumstances may be, the Board and reviewing courts cannot award Treasury funds unless the statutory eligibility requirements are satisfied.