UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

ROGELIO A. SERIDON,

Appellant,

v.

OFFICE OF PERSONNEL 

MANAGEMENT,

Agency.

DOCKET NUMBER

SF-0831-15-0004-I-1

DATE: June 4, 2015

THIS FINAL ORDER IS NONPRECEDENTIAL*

Rufus F. Nobles, I, Zambales, Philippines, for the appellant.

Christopher H. Ziebarth, 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 the Office of Personnel Management’s (OPM’s) decision denying his

application for an annuity. Generally, we grant petitions such as this one only 

when: the initial decision contains erroneous findings of material fact; the initial 

 * A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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 significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
2

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 judge’s rulings 

during either the course of the appeal or the initial decision 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 Title 5 of the Code of Federal Regulations, 

section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this 

appeal, and based on the following points and authorities, 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 the Board’s final decision. 5 C.F.R. 

§ 1201.113(b). 

¶2 The appellant applied for a deferred annuity under the Civil Service 

Retirement System (CSRS) based on his 9 years of service in a full-time position 

with a regular schedule in the Philippines as a non-U.S. citizen. Initial Appeal 

File (IAF), Tab 4 at 22. In his application, the appellant asserts that OPM may 

not deny him an annuity without first setting “a time for [him] to deposit the 

requisite amount of [his] base civilian service pay into the [Civil Service 

Retirement] and Disability Fund” Id. OPM issued an initial decision finding that 

the appellant’s service was not in a position subject to the Civil Service 

Retirement Act (CSRA), and therefore his service did not entitle him to a CSRS 

annuity. Id. at 11. The appellant requested reconsideration, arguing again that he 

was entitled to a deferred annuity under CSRS. Id. at 8. OPM issued a 

reconsideration decision in which it found that the appellant was not entitled to an 

annuity because he did not complete 1 year of service within the 2 years 

immediately preceding his separation in a position subject to the CSRA. Id. at 5.

¶3 The appellant filed an appeal from the reconsideration decision. IAF, 

Tab 1. He argues, as he did to OPM, that as a full-time employee he earned 
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retirement credit. Id. He also asserts that OPM erroneously failed to set a time 

for him to make a deposit into the Civil Service Retirement and Disability Fund

(the Fund). Id. OPM filed a response to the appeal, asserting that its 

reconsideration decision correctly decided the appellant’s application for a 

deferred annuity and that the issue of whether he can make a deposit for his 

service to be covered is not before the Board because OPM issued no final 

decision on the issue of him making a deposit. IAF, Tab 4 at 4.

¶4 In the initial decision, the administrative judge found that, although the 

appellant’s service is creditable, the appellant was never subject to the CSRA, 

and thus he had no covered service. IAF, Tab 7, Initial Decision (ID), at 4-5. 

She also found that, because the appellant had no service covered by the CSRA, 

he was not eligible to make a deposit into the Fund to obtain service credit. ID 

at 6. In making this finding, the administrative judge did not address OPM’s 

assertion that the Board lacks jurisdiction to decide the appellant’s eligibility to 

make a deposit.

¶5 In his petition for review, the appellant asserts again that he should have 

been given an opportunity to make a deposit into the Fund. Petition for Review 

File, Tab 1. 

¶6 In appeals from OPM reconsideration decisions involving CSRA retirement 

benefits, the appellant has the burden of proving entitlement to benefits by 

preponderant evidence. 5 C.F.R. § 1201.56(a)(2). Two types of federal service 

are pertinent to a determination of whether an individual is eligible for a 

retirement annuity under the CSRA, “creditable service” and “covered service.” 

Noveloso v. Office of Personnel Management, 45 M.S.P.R. 321, 323 (1990), aff’d, 

925 F.2d 1478 (Fed. Cir. 1991) (Table). While almost all federal service is 

creditable service, including under some circumstances service for which no 

deposit was made into the Fund, see Parker v. Office of Personnel 

Management, 93 M.S.P.R. 529, ¶ 32 (2003), aff’d, 91 F. App’x 660 (Fed. Cir. 

2004), covered service is more limited in scope, referring to employees who are 
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subject to the CSRA, i.e., employees who must deposit part of their basic pay into 

the Fund, Noveloso, 45 M.S.P.R. at 323. Further, to be eligible for a civil service 

annuity at age 62, an applicant must demonstrate that he has completed at least 5 

years of creditable civilian service and that he has served at least 1 of his last 2 

years of federal service in a position covered under the CSRA. 5 U.S.C. § 

8333(a), (b). 

¶7 The record shows, however, that the appellant had no covered service. He

served under an excepted indefinite appointment and was covered by the Filipino 

Employment Personnel Instruction, not by CSRS. Temporary, intermittent, term 

and excepted indefinite appointments have been excluded from CSRS coverage, 

first by presidential executive order (Exec. Order No. 10,180) in 1950, and since 

1956, by statute and regulation. The regulations are currently codified 

at 5 C.F.R. § 831.201(a)(1), (2), (6), (13) and (14). See Rosete v. Office of 

Personnel Management, 48 F.3d 514, 519 (Fed. Cir. 1995) (upholding the 

regulatory exclusion of indefinite appointments from CSRS coverage); see also 

De Jesus v. Office of Personnel Management, 63 M.S.P.R. 586, 592-94 (1994), 

aff’d, 62 F.3d 1431 (Fed. Cir. 1995) (Table). While service under an indefinite 

appointment is usually creditable service, it is not covered service. Thus, the 

appellant failed to meet the annuity eligibility requirement that he has served at 

least 1 of his last 2 years of federal service in a position covered under the CSRA. 

Irrespective of whether the appellant had the requisite 5 years of creditable 

civilian service, see 5 U.S.C. § 8333(a), because his last period of service prior to 

his separation did not include at least 1 year in a covered position, he is not 

entitled to a deferred annuity, see 5 U.S.C. § 8333(b); see also Espiritu v. Office 

of Personnel Management, 114 M.S.P.R. 192, ¶ 8 (2010), aff’d, 431 F. App’x 897 

(Fed. Cir. 2011). The administrative judge properly affirmed OPM’s 

reconsideration decision finding that the appellant was not eligible for a deferred 

annuity.
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¶8 As noted, the issue raised by the appellant in his petition for review, 

whether he should be afforded the opportunity to make a deposit for his service, 

was not addressed by OPM in the reconsideration decision. Generally, the Board 

has jurisdiction over retirement issues only once they have been the subject of an 

OPM reconsideration decision. Kilpatrick v. Office of Personnel 

Management, 94 M.S.P.R. 609, ¶ 8 (2003). However, where, as here, OPM fails 

to adjudicate all the claims and issues before it when it issues the reconsideration 

decision, the Board has jurisdiction to consider the nonadjudicated claims and 

issues and may remand the case for OPM to complete a full review of the matter.

Ott v. Office of Personnel Management, 120 M.S.P.R. 453, ¶ 4 (2013). Thus, 

OPM’s assertion that the Board lacks jurisdiction to decide the appellant’s 

eligibility to make a deposit is unavailing and the administrative judge did not err 

in addressing this issue. 

¶9 We need not remand this case to OPM, however. The appellant makes clear 

in his appeal that his goal in bringing a “deposit” claim is to receive a CSRS 

retirement annuity based on his years in an excepted indefinite appointment. 

Under 5 U.S.C. § 8334(c), an individual generally may make a deposit into the 

Fund if he is currently an “employee.” See 5 U.S.C. § 8334(c); see also Floresca 

v. Office of Personnel Management, 69 M.S.P.R. 93, 98 (1995). The term 

“employee,” as it is used for purposes of the statutory chapter governing CSRS, is 

defined at 5 U.S.C. § 8331(1), and it refers to individuals who are serving in 

positions covered by CSRS. See Vanaman v. Office of Personnel 

Management, 59 M.S.P.R. 598, 601 (1993) (covered service refers only to those 

federal employees who are subject to the CSRA and must deposit a portion of 

their pay into the Fund); see also 5 U.S.C. § 8334(a)(1) (requiring the employing 

agency to deduct retirement contributions from the pay of an “employee”). Here, 

there is no indication that the appellant ever worked in any capacity that would 

cause him to be an “employee” under the statutory scheme. See IAF, Tab 4 

(Standard Form 50 indicating that the appellant’s retirement plan was “Other”). 
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Instead, as noted, the record shows that the appellant performed service that was 

excluded from coverage under the CSRA. See 5 C.F.R. § 831.201(b)(1)(i) 

(excluding from coverage alien workers at duty stations in a foreign country 

under circumstances where U.S. citizens may be covered).

¶10 In 5 C.F.R. § 831.112(a)(2), OPM has interpreted 5 U.S.C. § 8334(c) to 

permit an individual who is no longer employed by the federal government to 

make a deposit if he “retains civil service retirement annuity rights based on a 

separation from a position in which retirement deductions were properly 

withheld” and if his “annuity has not been finally adjudicated.” In other words, 

an individual who has been separated from a CSRS-covered position (i.e., one in 

which he was subject to CSRS retirement contributions), who is eligible for a 

CSRS annuity, and whose annuity has not been “finally adjudicated” may make a 

deposit. However, an individual may not make a deposit under section 8334 if he 

was not separated from a CSRS-covered position, and a retroactive deposit does 

not convert a noncovered position to a covered position. Muyco v. Office of 

Personnel Management, 114 M.S.P.R. 694, ¶ 13 (2010). Here, the appellant was 

in a position in which he was not subject to CSRS retirement contributions. The 

administrative judge therefore properly found that the appellant is not entitled to 

make a deposit under 5 C.F.R. § 831.112(a)(2).

NOTICE TO THE APPELLANT REGARDING

YOUR FURTHER REVIEW RIGHTS

You have the right to request review of this final decision by the United 

States Court of Appeals for the Federal Circuit. You must submit your request to 

the court at the following address:

United States Court of Appeals

for the Federal Circuit

717 Madison Place, N.W.

Washington, DC 20439
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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 

and that filings that do not 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 you this right. It is found in 

Title 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 securing pro bono representation for an appeal to the 

United States 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 Merit 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.
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FOR THE BOARD:

Washington, D.C.

______________________________

William D. Spencer

Clerk of the Board