UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

ANTONIO T. PINLAC,

Appellant,

v.

OFFICE OF PERSONNEL 

MANAGEMENT,

Agency.

DOCKET NUMBER

SF-0831-16-0800-I-1

DATE: February 10, 2023

THIS FINAL ORDER IS NONPRECEDENTIAL1

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

Jane Bancroft, Washington, D.C., for the agency.

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, Member

Tristan L. Leavitt, Member

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) denying his application for deferred retirement under the Civil Service 

Retirement System (CSRS). Generally, we grant petitions such as this one only 

 

1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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

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), we AFFIRM the initial 

decision. 

BACKGROUND

¶2 The administrative judge made the following factual findings, which the 

parties do not dispute on review. The appellant formerly worked as a civilian 

employee of the Department of the Navy (Navy) in Subic Bay, Philippines. 

Initial Appeal File (IAF), Tab 2 at 10; Tab 3, Initial Decision (ID) at 2. He 

received an indefinite appointment as a Refrigeration and Air Conditioning 

Mechanic on October 20, 1965, and his appointment was converted to an excepted 

service-indefinite appointment on September 25, 1966. IAF, Tab 2 at 11. Based 

on the single Standard Form 50 (SF-50) submitted below, the appellant appears to 

have served in this excepted service-indefinite appointment until his resignation 

on December 26, 1977. Id. The SF-50 documents the appellant’s retirement plan 

coverage as “4” and “none.” Id. at 10-11. 
3

¶3 On July 22, 2014, the appellant applied for a deferred retirement annuity 

under the CSRS based on his service with the Navy from October 20, 1965, to 

December 26, 1977.2 OPM issued a reconsideration decision denying his 

application. Id. at 6-7. The appellant appealed OPM’s reconsideration decision 

to the Board, and he declined a hearing on the appeal. 3 The administrative judge 

issued an initial decision affirming OPM’s reconsideration decision. ID at 11. 

She found that, although the appellant had sufficient creditable Federal service, 

he was not eligible for a deferred annuity because he failed to show that any of 

that service was performed in a position covered under the CSRS. ID at 10-11. 

¶4 The appellant has filed a petition for review of the initial decision. Petition 

for Review (PFR) File, Tab 1. OPM has filed a response in opposition to his 

petition. PFR File, Tab 4. 

DISCUSSIONS OF ARGUMENTS ON REVIEW

¶5 The appellant, as an applicant, has the burden of proving his entitlement to 

an annuity. Cheeseman v. Office of Personnel Management, 791 F.2d 138, 

140-41 (Fed. Cir. 1986). To qualify for a civil service retirement annuity, a 

Government employee must complete at least 5 years of creditable service with at 

least one of the last 2 years of his Federal service in a “covered” position. 

5 U.S.C. § 8333(a)-(b); Quiocson v. Office of Personnel Management, 490 F.3d 

1358, 1360 (Fed. Cir. 2007). Covered service includes only an appointment that 

 

2

The administrative judge characterized the appellant’s appeal as also seeking the right 

to make a deposit to the Fund. ID at 3-4. This characterization was consistent with 

OPM’s interpretation of a letter that the appellant submitted with his deferred annuity 

application. IAF, Tab 2 at 4-7. However, the record reflects that his argument was that 

he was not required to make such a deposit to be eligible for an annuity. IAF, Tab 1 

at 3, Tab 2 at 14-16; Petition for Review File, Tab 1 at 1. Accordingly, we modify the 

initial decision to find that the appellant only applied for a deferred annuity. 

3

This appeal was originally consolidated with seven other simultaneously filed appeals 

making virtually identical claims, but the administrative judge terminated the 

consolidation on the same date that she issued the initial decision. ID at 1 n.1; see 

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

Docket No. SF-0831-16-0806-I-1, Consolidation Appeal File, Tab 6. 
4

is subject to the CSRS and for which an employee must therefore deposit part of 

his pay into the Fund. Encarnado v. Office of Personnel Management, 

116 M.S.P.R. 301, ¶ 7 (2011). 

¶6 The administrative judge issued an initial decision affirming OPM’s 

reconsideration decision based on her finding that the appellant was not eligible 

for a CSRS annuity because he had not served in a position covered by the CSRS. 

ID at 7-11. On review, the appellant appears to argue that his service was 

covered because 5 C.F.R. § 831.303(a), a regulation issued in 1983, “retroactively 

vested the CSRS deposit” to his prior service. PFR File, Tab 1 at 2-16. He also 

argues that the retirement system available to employees hired pursuant to the 

Filipino Employees Personnel Instructions (FEPI) is not another retirement 

system for Government employees that would preclude his coverage under the 

CSRS. Id. at 16-17. In addition, he submits documents with his petition for 

review.4For the reasons discussed below, we agree with the administrative 

judge’s decision to affirm OPM’s reconsideration decision.

¶7 Well-established principles of law preclude this appellant from qualifying 

for a deferred retirement annuity. Temporary and indefinite appointments ar e 

excluded from CSRS coverage. Quiocson, 490 F.3d at 1360; Encarnado,

116 M.S.P.R. 301, ¶ 8; 5 C.F.R. § 831.201(a)(1)-(2), (6), (13)-(14). The 

appellant’s reliance on 5 C.F.R. § 831.303(a) is misplaced, as that section 

addresses only whether service is creditable, not whether it is covered. See Tate 

v. Office of Personnel Management, 109 M.S.P.R. 57, ¶¶ 7-8 (2008) (explaining 

that section 831.303(a) provides CSRS credit for pre-1969 Federal service). 

 

4 We decline to consider these new documents on review. The appellant has not 

indicated why these documents, which are dated 1959, 1980, 1985, and 1992, were not 

available below despite his due diligence. See Avansino v. U.S. Postal Service, 

3 M.S.P.R. 211, 214 (1980) (explaining that under 5 C.F.R. § 1201.115, the Board 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 the party’s due 

diligence).
5

Further, 5 U.S.C. § 8334(c), which permits certain individuals to make deposits, 

does not support the appellant’s claims. Section 8334(c) applies only to 

individuals who, unlike the appellant, have covered service; in other words, 

service during which contributions to the Fund were withheld. Muyco v. Office of 

Personnel Management, 114 M.S.P.R. 694, ¶¶ 12-13 (2010); 5 C.F.R. 

§ 831.112(a)(2) (interpreting section 8334(c) as permitting an individual who 

occupied a position “in which retirement deductions were properly withheld” to 

make a deposit or redeposit). The appellant has not alleged that such 

contributions were withheld.

¶8 The appellant’s argument regarding the FEPI is likewise unavailing. 

Receipt of retirement benefits under a non-CSRS plan, such as the FEPI, indicates 

that service is not covered.5 Espiritu v. Office of Personnel Management, 

114 M.S.P.R. 192, ¶ 8 (2010), aff’d per curiam, 431 F. App’x 897 (Fed. Cir. 

2011). Section 8331(1)(L)(ii) of Title 5 provides that an employee who received 

benefits under a non-CSRS plan available to Government employees does not 

have covered service. Quiocson, 490 F.3d at 1360. The U.S. Court of Appeals 

for the Federal Circuit has found the FEPI to be such a retirement system, and the 

appellant has provided no evidence to the contrary. Id.; PFR File, Tab 1 at 16-18.

¶9 Accordingly, we deny the appellant’s petition for review and affirm the 

initial decision, as modified. 

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 

 

5 Here, because the record reflects that the appellant’s retirement coverage was “none,” 

there is no indication that he was covered under the FEPI. 

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.
6

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 an d 

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 choices 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). 

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 particular 
7

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 tha t 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 

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. 
8

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 

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 
9

competent jurisdiction.7The 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 

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.

 

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. 
10

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