UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD

SALVADOR V. MACALINA O, Appellant,

v.
OFFICE OF PERSONNEL MANAGEMENT, Agency. DOCKET NUMBER SF

- 0831

- 15

- 0792

- I

- 1

DATE: August 12, 2016



### THIS FINAL ORDER IS NONPRECEDENTIAL 1

Rufus F. Nobles, I , Zambe les , Philippines, for the appellant.
Roxann Johnson , Washington, D.C., for the agency.

BEFORE Susan Tsui Grundmann, Chairman Mark A. Robbins, Member

FINAL ORDER ¶1 The appellant has filed a petition for review of the initial decision, which affirmed a decisi on of the Office of Personnel Management (OPM) denying his request for annuity benefits under the Civil Service Retirement System (CSRS)

. Generally, we grant petitions such as this one only when: the initial decision

1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as sig nificantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).2
contains erroneous findings of materi al fact; the initial decision is based on an erroneous interpretation of statute or regulation or the erroneous application of the law to the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial decisi on were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. See t itle 5 of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting the petition for review. Therefore, we DENY the petition for review and AFFIRM the initial decision, which is now th e Board’s final decision. 5 C.F.R. § 1201.113 (b).

BACKGROUND ¶2 The appellant former ly was employed by the Department of the Navy in S ubic Bay, Philippines , un der a series of excepted

- service appointments from August 25 , 1975 , to August 30, 1991 , when he was terminated pursuant to a reduction in force

. Initial Appeal File (IAF), Tab 4 at 14

- 32

. On July 7, 2015, OPM denied the appellant ’s application for a CSRS retirement annuity because it found that he had never served in a position subject to the CSRS. IAF, Tab 1
at 1. T he appellant filed a Board appeal challenging OPM’s decision. Id. at 2. He did not request a hearing. Id. at 2

- 4. He asserte d that he was entitled to a retirement annuity based on his service from August 25, 1975 , to September 30 , 1982 , because , under his interpretation of 5 U.S.C. § 8334 (c) and 5 C.F.R. § 831.303 (a), he is deemed to have made a deposit for his service during this time . IAF, Tab s 5 , 7

- 8. ¶3 Based on the written record, t he administrative judge issued an initial decision affirming OPM’ s decision. IAF, Tab 9 , Initial Decision (ID). The3
administrative judge found that the appellant failed to prove his entitlement to a CSRS retirement annuity because he failed to show that he served in a position that was covered by or subject to the CSRS

. ID at 4. First, the administ rative judge found that the CSRS excluded the appellant’s excepted

- service term and indefinite appointments from coverage

. Id. Second, t he administrative ju dge noted that no CSRS retirement deductions were taken from the appellant’s paychecks during his employment

. Id. Third, the administrative judge found that the appellant’s Standard Form 50s ( SF

- 50s ) , which designated his retirement eligibility as “other , ” reflected that he was not employed i n a position covered by the CSRS

. ID at 4

- 5. Finally, the administrative judge found that the appellant had received a lump

- sum severance payment under a different retirement system, the Filipino Employment Personne l Instructions (FEPI), which indicated that he was covered under another retirement system and not under the CS RS . ID at 5

- 6

. T he administrative judge also found that the appellant was not entitled to make a deposit or to have the deposit waived for his period of service from August 25, 1975 , through September 30, 1982 , because such rights are only available to someone who, unlike the a ppellant, is covered by the CSRS . ID
at 6

- 8. ¶4 The appellant has filed a petition for review in which he reasserts his

a rgument tha t , because no CSRS deductions were taken from his pay during his civilian service prior to October 1, 1982, this period should be cre dited towards his CSRS annuity and he should be deemed to have made a deposit for this period. Petition fo r Rev iew (PFR) File, Tab 1 at 1

- 12

. 2 The agency has opposed the appellant’s petiti on. PFR File, Tab 4.

2 The appellant’s petition for review was untimely filed on February 29, 2016, over 1 month after the January 12, 2016 filing deadline. ID at 8; PFR File, Tab 1. He has filed a motion to waive the time limit in which he asserts that good cause exists for his untimely filing because, due to mail delays, he did not receive the initial decision until after the deadline for filing a petition for review. PFR File, Tab 5 at 1. In light of our4

DISCUSSION OF ARGUME NTS ON REVIEW ¶5 In appeals from OPM final decisions involving CSRS retirement benefits, the appellant has the burden of proving entitlemen t to benefits by preponderant evidence. 3 5 C.F.R. § 1201.56 (b)(2)(ii). To qualify for a civil service retirement annuity, a Government employee ordinarily must complete at least 5 years of creditable service and at least 1 of the 2 years before separation must be in “covered service.” 5 U.S.C. § 8333 (a)

- (b); Quiocson v. Offi ce of Personnel Management , 490 F.3d 1358 , 1360 (Fed. Cir. 2007). Almost all Federal service is creditable service. Noveloso v. Office of Perso nnel Management , 4 5 M.S.P.R. 321 , 323 (1990), aff’ d , 925 F.2d 1478 (Fed. Cir. 1991) (Table). On the other hand, covered service includes only appointments subject to the CS RS for which employees must deposit part of their pay into the Civil Service Retirement and Disability Fund

. Anahaw v. Office of Personnel Management , 85 M.S.P.R. 646 , ¶ 4 (2000). ¶6 The appellant has not con tested the administrative judge’ s findings that he served under appointments t hat were not subject to the CSRS; his SF

- 50s identify his retirement status as “ other ” ; that no retirement deductions were ever taken f rom his pa y; and that he received severance pay in accordance with FEPI. ID
at 4

- 6

. Thus, he has shown no er ror in the administrative judge’ s finding that he failed to prove entitl ement to a CSRS annuity. Id. ; see, e.g. , Espiritu v. Office of Personnel Management , 114 M.S.P.R. 192 , ¶¶ 7

- 9 (2010) , aff’d , 431 F. App’ x 897 (Fed. Cir. 2011 ). 4

disposition in this appeal, we do not reach the issue of the timeliness of the appellant’s petition for review.
3 A preponde rance of the evidence is the degree of relevant evidence that a reasonable person, considering the record as a whole, would accept as sufficient to find that a contested fact is more likely to be true than untrue. 5 C.F.R. § 1201.4 (q).
4 Some of the appellant’s SF

- 50s designate his retirement eligibility as “none.” IAF, Tab 4 at 29

- 32. However, t he Board has held that the reference to “other” or “none” in an app ellant ’s SF

- 50s means that the individual was not employed in the covered service. Espiritu , 114 M.S.P.R. 192 , ¶ 8.5
¶7 Even though the appellant did not serve in covered positions so as to entitle him to an annuit y under the CSRS, he assert s that he should be considered eligible for an annuity because a deposit was constructively made on his behalf pursuant to 5 C.F.R. § 831.303 (a). PFR File, Tab 1 at 1

- 12

. Section 831.303(a) is contained in subpart C of part 831, which addresses whether service is creditable. Section 831.303(a) describes how to calculate an annuity that includes credit for year s of service performed prior to October 1, 1982, of an otherwise entitled individual , for periods of service for which retirement deductions have not been taken. Nowhere does it provide for service credit to individuals who have no covered service. Thus, t here is no support in t he regulation for the appellant’ s assertion that he is deemed to have made a deposit qualifying him for an annuity whe n he is otherwise ineligible for an annuity due to his lack of covered service

. Accordingly , we find that the ad ministrative judge properly found that the appellant is not entitled t o make a deposit. I D at 6

- 8 ; see Muyco v. Office of Personnel Management , 114 M.S.P.R. 694 , ¶¶ 12

- 13 (2010).

NOTICE TO THE APPELL ANT REGARDING YOUR FURTHER REVIEW RIGHTS You have the right to request review of this final decision by the U.S. Court of Appeals for the Federal Circuit. You must submit your request to the court at the following address: U nited States Court of Appeals for the Federal Circuit 717 Madison Place, N.W.

Washington, DC 20439 The court must receive your request for review no later than 60 calendar days after the date of this order. See 5 U.S.C. § 7703 (b)(1)(A) (as rev. eff. Dec. 27, 2012). If you choose to file, be very careful to file on time. The court has held that normally it does not have the authority to waive this statutory deadline and6
that filings that do no t comply with the deadline must be dismissed. See Pinat v. Office of Personnel Management , 931 F.2d 1544 (Fed. Cir. 1991). If you need further information about your right to appeal this decision to court, you should refer to the Federal law that gives y ou this right. It is found in
t itle 5 of the United States Code, section 7703 ( 5 U.S.C. § 7703 ) (as rev. eff. Dec. 27, 2012). You may read this law as well as other sections of the United States Code, at our website, http://www.mspb.gov/appeals/uscode.htm

. Additional information is available at the court’s website, www.cafc.uscourts.gov . Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice , and Forms 5, 6, and 11. If you are interested in secur ing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Meri t Systems Protection Board appellants before the Federal Circuit. The Merit Systems Protection Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case.

FOR THE BOARD:

Washi ngton, D.C. ______________________________ Jennifer Everling Acting Clerk of the Board