UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

GREGORIO M. BAGAT,

Appellant,

v.

OFFICE OF PERSONNEL 

MANAGEMENT,

Agency.

DOCKET NUMBER

SF-0831-16-0798-I-1

DATE: March 21, 2023

THIS FINAL ORDER IS NONPRECEDENTIAL1

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

Carla Robinson, Washington, D.C., for the agency.

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, Member

Tristan L. Leavitt, Member2

 

1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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

2 Member Leavitt’s name is included in decisions on which the three-member Board 

completed the voting process prior to his March 1, 2023 departure.
2

FINAL ORDER

¶1 The appellant has filed a petition for review of the initial decision, which 

affirmed the reconsideration decision of the Office of Personnel Management 

(OPM). Generally, we grant petitions such as this one only in the following 

circumstances: the initial decision contains erroneous findings of 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 administrative 

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. 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, 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. Except as expressly MODIFIED by 

this Final Order to find that the appellant did not seek to make a deposit into the 

Civil Service Retirement and Disability Fund (Fund) and to instead find that he 

did not prove his entitlement to a deferred annuity, we AFFIRM the initial 

decision.

BACKGROUND

¶2 The appellant is a former employee of the Department of the Navy (Navy) 

in Subic Bay, Philippines. Initial Appeal File (IAF), Tab 2 at 10-17. The Navy 

initially appointed him to a GS-5 Jungle Survival Instructor position on 

January 16, 1971, in the excepted service, which had a not-to-exceed date of 

January 15, 1972. Id. at 17. The Navy continued to employ and promote him. 

Id. at 11-16. Upon his termination from Federal service on April 15, 1992, he 

held the position of GS-9 Training Instructor (Jungle Survivor School) and had 
3

21 years, 4 months, and 28 days of service in accordance with the Filipino 

Employees Personnel Instructions (FEPI) and the collective bargaining 

agreement. Id. at 10.

¶3 Although the Navy terminated the appellant in April 1992, he submitted an 

application for a deferred annuity pursuant to the Civil Service Retirement 

System (CSRS) on May 18, 2014—over 20 years later. Id. at 8-9. On August 4,

2016, OPM issued a reconsideration decision denying his application. Id. at 6-7. 

The letter stated that, although the appellant had performed civilian service for 

the Federal government, he had not performed service covered by the Civil 

Service Retirement Act (CSRA). IAF, Tab 2 at 6. Further, the letter explained 

that, to be eligible for a civil service annuity, an employee must have been 

employed by the Federal Government for at least 5 years with at least 1 year 

within the 2-year period immediately preceding the employee’s separation having 

been covered by the CSRS. Id. The letter informed the appellant that he could 

not meet this requirement for non-deduction service by making a deposit because 

he was not a current employee serving in a covered position. Id. Thus, he was 

not entitled to an annuity or to make a deposit. Id.

¶4 The appellant filed the instant appeal challenging the reconsideration 

decision of OPM to the extent that he was denied a CSRS annuity for his service 

ending on September 30, 1982. IAF, Tab 1. He did not request a hearing. Id. 

The administrative judge issued an initial decision affirming the reconsideration 

decision. IAF, Tab 3, Initial Decision (ID). 3 

 

3

This appeal was originally consolidated with seven other simultaneously filed appeals 

making virtually identical claims, but the administrative judge terminated the 

consolidation and issued a separate initial decision for each appellant. ID at 1-2 n.1; 

see Eight Philippine Retirement Applicants v. Office of Personnel Management, MSPB 

Docket No. SF-0831-16-0806-I-1.
4

¶5 The appellant has filed a petition for review, and OPM has responded in 

opposition to the appellant’s petition. Petition for Review (PFR) File, Tabs 1, 4.

4

 

DISCUSSION OF ARGUMENTS ON REVIEW

¶6 In appeals from OPM reconsideration decisions involving retirement 

benefits under the CSRA, the appellant has the burden of proving entitlement to 

benefits by preponderant evidence. 5 C.F.R. § 1201.56(b)(2)(ii). To qualify for 

an annuity under the CSRA, an employee ordinarily must have completed at least 

5 years of creditable civilian 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. 

Office of Personnel Management, 490 F.3d 1358, 1360 (Fed. Cir. 2007). While 

almost all Federal service is creditable, covered service includes only 

appointments subject to the CSRA for which employees must deposit part of their 

pay into the Fund. See Noveloso v. Office of Personnel Management, 45 M.S.P.R. 

321, 323 (1990), aff’d, 925 F.2d 1478 (Fed. Cir. 1991) (Table). The service of 

employees appointed under temporary, intermittent, term, and excepted indefinite 

appointments is usually creditable, but it has been excluded from coverage under 

the CSRA. Encarnado v. Office of Personnel Management, 116 M.S.P.R. 301, ¶ 8 

(2011); 5 C.F.R. § 831.201(a). Thus, an employee who has only served in such 

appointments is not entitled to a CSRS annuity. Quiocson, 490 F.3d at 1360. 

 

4

The appellant has attached an annuity check and Standard Form 50s of two other 

employees to his petition for review. PFR File, Tab 1 at 20-25. The Board generally 

will not consider evidence submitted for the first time on review absent a showing that 

the documents and the information contained in the documents were unavailable before 

the record closed despite due diligence and that the evidence is of sufficient weight to 

warrant an outcome different from that of the initial decision. See Cleaton v. 

Department of Justice, 122 M.S.P.R. 296, ¶ 7 (2015), aff’d, 839 F.3d 1126 (Fed. Cir. 

2016); 5 C.F.R. § 1201.115(d). Here, the appellant has not alleged or shown that the 

documents, all of which predate the close of the record, were unavailable below or that 

they are material to the dispositive issue on review. Therefore, we do not consider 

them for the first time on review.
5

¶7 The administrative judge issued an initial decision affirming the 

reconsideration decision of OPM, finding that the appellant was not entitled to a 

CSRS annuity. ID at 6-11. She found that the appellant served in temporary, 

indefinite appointments or certain permanent positions in the excepted service, all 

of which were subject to FEPI, and none of which were covered under the CSRA. 

ID at 7-8, 11; IAF, Tab 2 at 10-17. Thus, she concluded that the appellant was 

not entitled to the deferred annuity that he sought. 5 ID at 11.

¶8 On review, the appellant admits that each of his appointments was either 

temporary or indefinite and that none was covered by the CSRA. PFR File, Tab 1

at 2. However, he asserts that, according to his interpretation of 5 C.F.R. 

§ 831.303(a), he was entitled to a deferred annuity under CSRS for his s ervice 

beginning on January 16, 1971, and ending on September 30, 1982. PFR File, 

Tab 1 at 1-17; IAF, Tab 1. He argues that, because, under section 831.303(a), a 

deposit was constructively made for this period of service, he was an “employee” 

with “covered service” during that period and thus entitled to a CSRS annuity for 

his service beginning on January 16, 1971, and ending on September 30, 1982. 

PFR File, Tab 1 at 1-17; IAF, Tab 1. 

¶9 In Lledo v. Office of Personnel Management, 886 F.3d 1211 (Fed. Cir. 

2018), the U.S. Court of Appeals for the Federal Circuit rejected a sufficiently 

similar argument raised by another former employee of the Navy in Subic Bay, 

Philippines seeking to have his creditable service in a position that was not 

covered under the CSRS be deemed covered service for the purposes of an 

 

5

The administrative judge found that the appellant was not eligible to make a deposit 

for any creditable service because he is not an “employee” as defined by 5 U.S.C. 

§ 8332(c). ID at 6-7. However, the appellant did not ask to make a deposit and instead 

stated that, according to his interpretation of 5 C.F.R. § 831.303, he would instead

receive credit for his service from January 16, 1971, until September 30, 1982, without 

making a deposit. IAF, Tab 1. Accordingly, we modify the initial decision to exclude 

the administrative judge’s consideration of this issue and instead consider only the 

appellant’s entitlement to a deferred annuity.
6

annuity. The court explained that 5 C.F.R. § 831.303(a) “permits an employee 

engaged in creditable civilian service before October 1, 1982, for which 

retirement deductions were not taken, to elect to make a deposit according to 

5 U.S.C. § 8334(c) or otherwise have his annuity reduced.” Id. at 1214. The 

purpose of this provision is to allow an individual who is otherwise entitled to an 

annuity to include that creditable service in the annuity computation. Id. It does

not “convert creditable service into covered service” for the purpose of annuity 

entitlement. Id. Accordingly, we find that 5 C.F.R. § 831.303(a) is not related to 

whether the appellant is entitled to make a deposit and provides no basis for 

finding that the appellant had covered service.

¶10 The appellant also asserts that he was entitled to receive both FEPI benefits 

and a CSRS annuity. PFR File, Tab 1 at 18-19. However, an employee’s receipt 

of benefits under a non-CSRS plan, such as FEPI, indicates that this service was 

not covered under the CSRS. Quiocson, 490 F.3d at 1360. The appellant’s 

Standard Form 50 documenting his termination from Federal service on April 15,

1992, indicates that he received benefits under FEPI, and he does not dispute this. 

IAF, Tab 2 at 10; PFR File, Tab 1. Thus, this is further evidence that he was not 

entitled to a CSRS annuity. Espiritu v. Office of Personnel Management, 

114 M.S.P.R. 192, ¶ 9 (2010), aff’d per curiam, 431 F. App’x 897 (Fed. Cir. 

2011). 

¶11 We otherwise find no reason to disturb the administrative judge’s 

conclusion that the appellant’s service was not covered by the CSRA and was 

instead subject to FEPI. ID at 11. Accordingly, we find that the appellant is not 

entitled to a deferred annuity under the CSRA. See Quiocson, 490 F.3d at 1361.
7

NOTICE OF APPEAL RIGHTS6

The initial decision, as supplemented by this Final Order, constitutes the 

Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain 

review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of 

your claims determines the time limit for seeking such review and the appropriate 

forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following 

summary of available appeal rights, the Merit Systems Protection Board does not 

provide legal advice on which option is most appropriate for your situation and 

the rights described below do not represent a statement of how courts will rule 

regarding which cases fall within their jurisdiction. If you wish to seek review of 

this final decision, you should immediately review the law applicable to your 

claims and carefully follow all filing time limits and requirements. Failure to file 

within the applicable time limit may result in the dismissal of your case by your 

chosen forum.

Please read carefully each of the three main possible choic es of review 

below to decide which one applies to your particular case. If you have questions 

about whether a particular forum is the appropriate one to review your case, you 

should contact that forum for more information. 

(1) Judicial review in general. As a general rule, an appellant seeking 

judicial review of a final Board order must file a petition for review with the U.S. 

Court of Appeals for the Federal Circuit, which must be received by the court 

within 60 calendar days of the date of issuance of this decision. 5 U.S.C. 

§ 7703(b)(1)(A). 

 

6

Since the issuance of the initial decision in this matter, the Board may have updated 

the notice of review rights included in final decisions. As indicated in the notice, the 

Board cannot advise which option is most appropriate in any matter.
8

If you submit a petition for review to the U.S. Court of Appeals for the 

Federal Circuit, you must submit your petition to the court at the 

following address: 

U.S. Court of Appeals 

for the Federal Circuit 

717 Madison Place, N.W. 

Washington, D.C. 20439 

Additional information about the U.S. Court of Appeals for the Federal 

Circuit is available at the court’s website, www.cafc.uscourts.gov. Of partic ular 

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, 10, and 11. 

If you are interested in securing 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 Merit Systems Protection Board appellants before the Federal Circuit. The 

Board neither endorses the services provided by any attorney nor warrants that 

any attorney will accept representation in a given case. 

(2) Judicial or EEOC review of cases involving a claim of 

discrimination. This option applies to you only if you have claimed that you 

were affected by an action that is appealable to the Board and that such action 

was based, in whole or in part, on unlawful discrimination. If so, you may obtain 

judicial review of this decision—including a disposition of your discrimination 

claims—by filing a civil action with an appropriate U.S. district court (not the 

U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you 

receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems 

Protection Board, 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a 

representative in this case, and your representative receives this decision before 

you do, then you must file with the district court no later than 30 calendar days

after your representative receives this decision. If the action involves a claim of 
9

discrimination based on race, color, religion, sex, national origin, or a disabling 

condition, you may be entitled to representation by a court-appointed lawyer and 

to waiver of any requirement of prepayment of fees, costs, or other security. See

42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a. 

Contact information for U.S. district courts can be found at their respective 

websites, which can be accessed through the link below: 

http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx. 

Alternatively, you may request review by the Equal Employment 

Opportunity Commission (EEOC) of your discrimination claims only, excluding 

all other issues. 5 U.S.C. § 7702(b)(1). You must file any such request with the 

EEOC’s Office of Federal Operations within 30 calendar days after you receive

this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, 

and your representative receives this decision before you do, then you must file 

with the EEOC no later than 30 calendar days after your representative receives

this decision. 

If you submit a request for review to the EEOC by regular U.S. mail, the 

address of the EEOC is: 

Office of Federal Operations 

Equal Employment Opportunity Commission 

P.O. Box 77960 

Washington, D.C. 20013 

If you submit a request for review to the EEOC via commercial delivery or 

by a method requiring a signature, it must be addressed to: 

Office of Federal Operations 

Equal Employment Opportunity Commission 

131 M Street, N.E. 

Suite 5SW12G 

Washington, D.C. 20507 

(3) Judicial review pursuant to the Whistleblower Protection 

Enhancement Act of 2012. This option applies to you only if you have raised 

claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or 
10

other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). 

If so, and your judicial petition for review “raises no challenge to the Board’s 

disposition of allegations of a prohibited personnel practice described in 

section 2302(b) other than practices described in section 2302(b)(8), or 

2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial 

review either with the U.S. Court of Appeals for the Federal Circuit or any court 

of appeals of competent jurisdiction.7 The court of appeals must receive your 

petition for review within 60 days of the date of issuance of this decision. 5 

U.S.C. § 7703(b)(1)(B). 

If you submit a petition for judicial review to the U.S. Court of Appeals for 

the Federal Circuit, you must submit your petition to the court at the 

following address: 

U.S. Court of Appeals 

for the Federal Circuit 

717 Madison Place, N.W. 

Washington, D.C. 20439 

Additional information about the U.S. Court of Appeals for the Federal 

Circuit 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, 10, and 11. 

If you are interested in securing 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 

 

7

The original statutory provision that provided for judicial review of certain 

whistleblower claims by any court of appeals of competent jurisdiction expired on 

December 27, 2017. The All Circuit Review Act, signed into law by the President on 

July 7, 2018, permanently allows appellants to file petitions for judicial review of 

MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals 

for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. 

The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195, 

132 Stat. 1510. 
11

for Merit Systems Protection Board appellants before the Federal Circuit. The 

Board neither endorses the services provided by any attorney nor warrants that 

any attorney will accept representation in a given case. 

Contact information for the courts of appeals can be found at their 

respective websites, which can be accessed through the link below: 

http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx. 

 

 

FOR THE BOARD:

Washington, D.C.

 /s/ for 

Jennifer Everling

Acting Clerk of the Board