UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD

ANACLETO C. BALDUEZA , Appellant,

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

- 0831

- 14

- 0141

- I

- 1

DATE: August 20, 2014



### THIS FINAL ORDER IS NONPRECEDENTIAL 1

Fe M. Peregrino
, Acala, Pangasinan, for the appellant. Cynthia Reinhold , Washington, D.C., for the agency.

BEFORE
Susan Tsui Grundmann, Chairman Anne M. Wagner, Vice Chairman Mark A. Robbins, Member

FINAL ORDER ¶1 Th e ap p ell a n t ha s f ile d a pe t it i o n f o r re vi e w o f t h e ini t ia l de ci sio n , w hi c h

a ff ir m e d t h e O ff ic e o f P ers o nne l M an a g e men t ’ s (O P M ’s ) reconsideration de c is i on de n y i n g his ap p lic a ti o n f o r a retir e me n t ann u i t y

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

1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not require d to follow or distinguish them in any future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

material 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 judge’s rulings during either the course of the appeal or the initial decision were

n ot 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 consideri ng 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 AFF IRM the initial decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113 (b).

DISCUSSION OF ARGUME NTS ON REVIEW ¶2 The app ellant began his employment with the Navy’s Subic Bay Naval Ship Repair Facility in the Philippines in 1961. Initial Appeal File (IAF), Tab 1 at 5,
7. He was given an excepted appointment, effective December 27, 1965, to the position of Machinist (Marine ) (Limited), which was not to exceed Decem ber 26,
1966. IAF , Tab 5 at 17

. The appellant had continuous service with the Navy
from 1961 until his retirement from the position of Marine Machinery Mechanic Foreman II, effective May 20, 1992. IAF, Tab 1 at 6

- 7, Tab 5 at 16; Petition for Review (PFR) File, Tab 1 at 18

. ¶3 Th e appellant applied for a Civil Service Retirement System ( CSRS ) deferred annuity on April 1 5, 2013. IAF, Tab 5 at 12

- 15. OPM issued a
reconsideration decision , dated August 5, 2013, find ing the appellant ineligible for a retirement annuity under CSRS. IAF, Tab 5 at 10 . OPM informed the3

appellant of his Board appeal rights. Id. He filed an appeal

. 2 IAF, Tab 1 at 2

- 3

. Because the appellant did not request a hearing, t he administrative judge issued an order closing t he record on March 6, 2014. IAF, Tab 6 at 3

. After providing the parties with the opportunity to provide evidence and argument regarding the appellant ’s claim , the administrative judge issued an initial deci sion finding th at the appellant never occupied a position covered by the Civil Service Retirement Act (CSRA)

. ID at 4. ¶4 The appellant has filed a timely petition for review. PFR File, Tab 1. The agency has responded in opposition to the petition for review. PFR File , Tab 4.
The appellant’s positions were not covered under the CSRA. ¶5 The appellant bears the burden of proving his entitlement to an annuity by preponderant evidence

. F red e l u ce s v

. O ffi c e o f Per s on n el
Man a ge m en t , 57 M .S .P. R

. 5 9 8 , 6 0 1 , a ff’ d
, 1 6 F

. 3 d 4 2 1 ( F ed

. C ir

. 1 9 93 ) ( Ta b le )

. Tw o t y p e s o f f eder a l ser v ic e ar e per t in en t t o det er m i n e whe th e r a n in d iv i du a l is
enti t le d t o a re t ir e men t a n nu i t y un d e r th e C S R A , “ cr e di t abl e se r vi c e ” and “cov e re d

se r vic e

. ” Nov e lo s o v

. Of f

ic e o f Pe r so n ne l Ma n ag e men t , 45 M

. S. P .R. 321 , 3 2 3 ( 1 99 0 ) , a f

f’d
, 9 2 5 F

. 2 d 1 4 7 8 (Fe d

. Cir

. 1 99 1 ) ( T able )

. Almost all federal service is
creditable service

. I d

. Covered service is more limited in scope, referring to federal employees who are “subject to” the CSRA, i.e., employees who must deposit part of their bas ic pay into the Civil Service Retirement and Disability
Fund. I d

. T o qua l i f y f o r a ci v i l servi c e ret i r e ment ann u i t y , a n e m p l o y e e m u s t

c o mp l et e a t l ea s t 5 y e a r s o f cr e dit ab l e c i vil i a n s erv i ce an d mu s t h av e se r v e d a t

2 The appellant mailed his appeal to OPM on a date not reflected in the record. IAF, Tab 1. The administrative judge found that because the appell ant signed his appeal on August 23, 2013, and due to the significant delays in mailing between the Philippines and the United States, to the extent the appeal was untimely filed, the deadline for filing was waived for good cause shown. IAF, Tab 8, Initial Decision (ID) at 2

- 3 n.1. Neither party has challenged this finding on review, and we see no reason to disturb it.4

le a s t 1 o f h i s l as t 2 y e a r s o f f eder a l s ervi c e i n a co v ered pos i tio n

. 3 Id . at 324 ;

see 5 U

. S. C

. § 83 3 3 ( a )

- ( b). ¶6 Te m porary , intermittent
, ter m , an d excepte d indef i nit e appoint me nt s have
bee n exclude d fro m CSR S coverage

. 5 C.F.R. § 831.20 1 (a)( 1 ) , (2) , (6) , (13 ) , (14) ; s e e also Roset e v

. Offic e o f Personne l Management , 48 F.3d 51 4 , 5 1 9 (Fed

. C ir. 1995 ) ( upholding the regulatory exclusion of indefinite appointments from CSRS coverage); De Jesus v. O f fice of Per s onnel Managemen t , 6 3 M.S.P.R.
58 6 , 590

- 9 3 (1994) (under 5 U.S.C. § 8347 (g), OPM can exclude from CSRA coverage temporary, intermittent, and indefinite employees ) , aff’d
, 62 F.3d 1431 (Fed. Cir. 1995) (Table). ¶7 Th e ap p ell a nt argues in his petition for re view that the Navy is a government agency , all hired employees are registered by the C ivil Service
Commission , and that he is covered by the CSRS

. See PFR File, Tab 1 at 2

- 3

. T he appellant submit s numerous documents with his petition for review. Id. at 10

- 30

. The Board generally will not consider evidence submitted for the first time with the petition for review absent a showing that it was unavailable before the record was closed despite due diligence. Davis v. Department of
Commerce , 120 M.S.P.R. 34 , ¶ 16 (2013) (citing 5 C.F.R. § 1201.115 )

. The appell ant has not made such a showing , and therefore we decline to consider the
documents he submits for the first time on review

. ¶8 We agree with the administrative judge that the appellant’s position as a Machinist (Marine) (Limited), which was an excepted appoi ntment not to exceed

3 Although not entirely clear, the appellant appears to argue on petition for review that he is entitled to a deferred CSRS annuity. See PFR File, Tab 1 at 2

- 3 ; see also McKay

v. U.S. Postal Service
, 84 M.S.P.R. 152 , ¶ 7 (1999) (the Board reads pro se appellant’s pleadings liberally) . However, t o be eligible for a deferred annuity under 5 U.S.C. § 8338 (a) , the appellant would still need to be “[a]n employee” under 5 C.F.R. § 831.1 12 (a)(2), which requires that he already have “civil service retirement annuity rights” based on CSRA covered service. Dela Rosa v. Office of Personnel Management
, 583 F.3d 762 , 765 (Fed

. Cir. 2009) ( a former employee can make a deposit for a deferred annuity under 5 U.S.C. § 8334 (c) onl y if he is already covered by the CSRS).5

1 year, was excluded from the CSRA. ID at 2

- 4. As to the appellant’s remaining

pe riod of service, the Standard Form ( SF ) 50 s provided reflect a status of “5” or “Other” for retirement coverage and an annuity indicator of “9” or “Not Applicable

. ” 4 IAF, Tab 1 at 6, Tab 5 at 16. The appellant’s final SF

- 50 reflects that he retired under the authority of the Filipino Employment Personnel Instruction (FEPI). IAF, Tab 5 at 16; ID at 2. The Federal Circuit has indicated
that the referenc e to “Other” or no retirement coverage o n an appellant’s SF

- 50s means that the individual was not employed in covered service. Espiritu v

. Offic e

o

f Personne l Management , 1 1 4 M.S.P.R

. 192 , ¶ 8 (2010 ) (citin g Rosete , 4 8 F.3 d

at 52 0 ) , aff’d , 431 F. App’x 897 (Fed. Cir. 2011) . There is no evidence that the appellant was ever employed in covered service ; rather
, the record shows that he performed service that was excluded from coverage under the CSRA. T he appellant’s SF

- 50s indicate that he was entitled to retirement pay under the FEPI. IAF, Tab 1 at 6, Tab 5 at 16

. Our reviewing court has previously held that receipt
of benefits unde r a non

- CSRS plan , such as FEPI, indicates that an appellant’s
service is not covered under the CSRS

. Qu i ocs o n v

. Of f

ic e of Per s on n e l
M an a ge m ent , 490 F. 3 d 1 35 8 , 136 0 (F e d

. Cir

. 2 0 0 7 ). Therefore, the appellant is not eligible for a CSRS annuity. Thus , we agree with the administrative judge’s finding that the appellant was never subject to the CSRA

. ¶9 The appellant stated in his petition for review that he has suffered for 22 years from chronic diseases he acquired during employment with the Navy and
that he did not receive any compensati on or pension. See PFR File, Tab 1 at 4. Further, he requested “humanitarian help” for his medical conditions. See i d

.

4 The appellant’s SF

- 50s reflect a tenure group status of “1

- Permanent.” IAF, Tab 1 at 6, Tab 5 at 16. However, in the absence of any evidence that the appellant’s personnel records are incomplete, we decline to consider this secondary evidence regarding the status of his employment. Pagtakhan v. Office of Personnel Management
, 43 M.S.P.R. 75 , 77 (1989); see De Jesus , 63 M.S.P.R. at 593 ( tenure group status for the purposes of determining an employee’s rights in a possible reduction in force is not determinative of an employee’s appointment or retirement rights)

.6

Although the Board is sympathetic to the appellant’s situation, t he Board does not have jurisdiction over all actions that are allege d to be incorrect. Preece v. Department of the Army
, 50 M.S.P.R. 222 , 226 (1991)

. T he Board’s jurisdiction is not plenary; it is limited to those matters over which it has been given jurisdiction by law, rule
, or regulation . Maddox v. Merit Systems Protection
Board
, 759 F.2d 9 , 10 (Fed. Cir. 1985). The determination of whether an individual suffers from a medical condition that is compensable under the Federal Employees’ Compensation Act is within the exclusive purview of Office of Workers’ Compensation Programs (subject to review by the Employees Compensation Appeal s Board), and neither the employing agency nor the Board has the authority to make such a determination. Simonton v. U.S. Postal
Service , 85 M.S.P.R. 189 , 192, ¶ 11 (2000). ¶10 We agree with the admini strative judge that the appella nt has no t demonstrate d tha t h e complete d 5 year s o f qualified civilian service ending with at least 1 out of the last 2 years in a position covered by the CSRA. Thus, the
initial decision is affirmed

.

NOTICE TO THE APPELL ANT 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 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 deadline7

and that filings that do n ot 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 your court appeal, you may visit our website at http://www.mspb.gov/probono for a list of attorneys who have expressed interest in providing pro bono representation for Merit Systems Protection Board appellants before the court. The Merit Systems
Protection Board neither endorses the servic es provided by any attorney

nor warrants that any attorney will accept representation in a given case.

FOR THE BOARD:

Washington, D.C. ______________________________ William D. Spencer Clerk of the Board