UNITED STATES OF AMERICA 

MERIT SYSTEMS PROTECTION BOARD 

2007 MSPB 40 

Docket No. CB-1205-06-0022-U-1 

Narciso R. Vergara, 

Petitioner, 

v. 

Office of Personnel Management, 

Agency. 

February 5, 2007 

Rizalino S. Cayle, Olongapo City 601F, Philippines, for the petitioner. 

Earl A. Sanders, Washington, D.C., Esquire, for the agency. 

BEFORE 

Neil A. G. McPhie, Chairman 

Mary M. Rose, Vice Chairman 

Barbara J. Sapin, Member 

OPINION AND ORDER

¶1 This matter is before the Board on petitioner’s request, pursuant to 5 

U.S.C. § 1204(f), for review of the Office of Personnel Management’s (OPM) 

regulation at 5 C.F.R. § 831.201(a)(13).1

 For the reasons set forth below, we 

DENY the request. 

 

1

 Petitioner asks the Board to review 5 C.F.R. § 831.201(a)(14) (1963-1987). That 

regulation was renumbered as 5 C.F.R. § 831.201(a)(13) by OPM in 1988. See 53 Fed. 

Reg. 42,933, 42,936 (Oct. 25, 1988). We will use the current citation in this decision. 
2

BACKGROUND

¶2 Petitioner is a former federal employee, who was given an indefinite 

appointment with the Department of the Navy, effective July 6, 1967, and was 

separated, effective July 2, 1986. Regulation Review File (RRF) Tab 1, Exhibits 

(EX) B-1, B-3, B-3A. Petitioner submitted documentation of his appointments 

which indicates that he was not covered by the Civil Service Retirement System 

(CSRS).2

 Id. The regulation at issue provides that Federal employees serving 

under indefinite appointments made after January 23, 1955 are excluded from 

CSRS coverage. 5 C.F.R. § 831.201(a)(13). OPM requests that the Board deny 

petitioner’s request for regulation review. RRF, Tab 3. 

ANALYSIS

¶3 The Board has authority, pursuant to 5 U.S.C. § 1204(f), to review a 

regulation and declare it invalid on its face or invalidly implemented by an 

agency. The Board may find OPM rules and regulations invalid if it determines 

that the implementation of the rules or regulations would require an employee to 

commit one of the prohibited personnel practices defined in 5 U.S.C. § 2302(b). 

¶4 Here, petitioner argues that 5 C.F.R. § 831.201(a)(13) is not in accordance 

with section 2(e) of The Federal Executive Pay Act of 1956 (1956 Act), Pub. L. 

No. 854, § 401 (July 31, 1956), the predecessor of 5 U.S.C. § 8347(g), which 

authorizes OPM to exclude from CSRS coverage “an employee or group of 

 

2

 The Standard Form 50 (SF-50) documenting petitioner’s appointment, Exhibit B-1, 

shows his Federal retirement coverage as “None,” represented by the numeral “4” in 

box number “10” on the form. RRF, Tab 1. The SF-50s documenting additional 

personnel actions, including petitioner’s termination, show petitioner’s retirement 

coverage as “Other,” represented by the numeral “5” in box number 8. Id. at Ex. B-2 

and B-3. The documentation of termination shows that petitioner received severance 

pay in accordance with a collective bargaining agreement. Id. at Ex. B-3 and B-3a. 

The Board has held that an appellant’s service is not covered by the CSRS where the 

SF-50s describing that service indicate that he was not subject to the CSRS and that he 

received retirement pay in accordance with a collective bargaining agreement. Reyes v. 

Office of Personnel Management, 60 M.S.P.R. 172, 174-75 (1993), aff’d, 29 F.3d 645 

(Fed. Cir. 1994 (Table). 
3

employees ... whose employment is temporary or intermittent.” See RRF, Tab 3 

at 3. According to petitioner, the regulation is also inconsistent with Executive 

Order 9154, 3 C.F.R. § 1152 (1938-1943), which did not specifically exclude 

from civil service retirement coverage employees holding indefinite 

appointments, and which, petitioner argues, is still valid. Petitioner, however, 

does not fully explain how 5 C.F.R. § 831.201(a)(13), either on its face, or as 

implemented, would require the commission of a prohibited personnel practice. 

Rather, petitioner makes the bare assertion that section 831.201(a)(13) would, if 

implemented, result in the prohibited personnel practice defined at 5 U.S.C. 

§ 2302(b)(12),3

 that is, the taking or failing to take an action in violation of a 

“law, rule, or regulation implementing, or directly concerning, the merit system 

principles ... ” Petitioner cites 5 U.S.C. § 2301(b)(8)(A) as the relevant merit 

system principle. RRF, Tab 1 at 6. Section 2301(b)(8)(A) provides that 

employees should be protected against arbitrary action. Yet, petitioner does not 

explain how the allegedly violated statute and Executive order implement the 

merit system principle found at 5 U.S.C. § 2301(b)(8)(A), as required by 5 C.F.R. 

§ 1203.11(b)(2).4 While petitioner has failed to meet fully the requirements of 5 

C.F.R. § 1203.11(b)(2), we do not deny review on that basis because we find 

other more compelling reasons to deny review. 

 

3

 Petitioner cites 5 U.S.C. § 2302(b)(11). That statutory provision was renumbered as 

5 U.S.C. § 2302(b)(12) in 1998. See The Veterans Employment Opportunities Act of 

1998 § 6(a)(2), 5 U.S.C. § 2302(b)(12). 

4

 Section 1203.11(b)(2) provides as follows: 

(2) If the prohibited personnel practice at issue is one prohibited by 

5 U.S.C. 2302(b)(12), the request must include the following additional 

information: 

(i) Identification of the law or regulation that allegedly would be or has 

been violated, and how it would be or has been violated; and 

(ii) Identification of the merit system principles at issue and an 

explanation of the way in which the law or regulation at issue implements 

or directly concerns those principles.
4

¶5 The decision whether to grant review of a regulation is within the Board’s 

discretion. 5 U.S.C. § 1204(f)(1)(B). In deciding whether to grant review, the 

Board will consider the following factors: (1) whether there is a likelihood that 

the issue will be resolved through other channels of appeal; (2) the availability of 

other equivalent remedies; (3) the extent of the regulation’s application; and (4) 

the strength of the arguments against its validity. Tabradillo v. Office of 

Personnel Management, 93 M.S.P.R. 257, 259 ¶ 4 (2003). Factors 2 and 4 are 

relevant here. 

¶6 The documentation submitted by petitioner shows that he is over age 62 

and that he has completed more than five years of creditable Federal service. See

RRF, Tab 1, EX B-1, B-3 and B-3A. If petitioner meets the requirements of 5 

U.S.C. § 8333(b), he would be entitled to a deferred annuity pursuant to 5 U.S.C. 

§ 8338(a). Further, if petitioner files an application for a deferred annuity with 

OPM, he would have a right to an adjudication of that application by OPM 

pursuant to 5 U.S.C. § 8347(b).5

 Thus, petitioner has an alternate remedy to 

pursue his claim of entitlement to retirement under the CSRA.6

 Moreover, 

petitioner’s “[r]equest for settlement of appeal in the Petition For Review 

Settlement Program” indicates that he is seeking a CSRS annuity in the guise of a 

request for regulation review. RRF, Tab 4. 

 

5

 Petitioner’s argument that the tenure group designation on the documentation of his 

appointments shows that he was entitled to CSRS coverage is an argument that may be 

raised in connection with any application for retirement that he may file. Similarly, 

petitioner’s argument, to the extent it is relevant, that Executive Order 10826, 3 CFR 

362 (1959-1963), provides relief for administrative error, may be addressed in an 

adjudication of petitioner’s entitlement to retirement benefits. 

6

 Petitioner refers, at p.7 of his petition, to evidence unavailable in a prior proceeding 

but he does not specify the nature of that proceeding. Thus, it is unclear whether 

petitioner has filed an application for benefits or another regulation review request. 

Also, OPM states that it has been unable to determine whether petitioner has already 

filed an application for retirement. See RRF, Tab 3 at 9. 
5

¶7 Additionally, petitioner’s arguments regarding the validity of the regulation 

are weak. Indeed, petitioner’s arguments regarding the validity of the regulation 

have already been considered and rejected by the Federal Circuit and the Board. 

See Rosete v. Office of Personnel Management, 48 F.3d 514 (Fed. Cir. 1995); 

Trabradillo, 93 M.S.P.R. 257; Enrique v. Office of Personnel Management, 82 

M.S.P.R. 305 (1999). In Rosete, petitioner argued that “excepted, indefinite” 

appointments do not fall within the statutory terms “temporary or intermittent” 

and, therefore, may not be excluded from CSRS coverage. 48 F.3d at 518. The 

court disagreed, and in doing so specifically rejected the same claim made here 

that Executive Order 9154 (E.O.), 3 C.F.R. § 1152 (1938-1943) is still in effect. 

Id. at 519. The court held further that E.O. 9154 was superseded by Executive 

Order 10,180, 3 C.F.R. § 363 (1949-1953), which is the source of 5 C.F.R. 

§ 831.201(a)(13). The court noted that E.O. 10,180 specifically excluded 

employees with indefinite appointments from civil service retirement coverage 

and that the continuation of that exclusion in 5 C.F.R. § 831.201(a)(13) 

represented a reasonable and long-standing interpretation of the statutory 

language “temporary or intermittent.” Id. Accordingly, without prejudging any 

application for a CSRS annuity that petitioner may file, we find here that his 

arguments challenging the validity of 5 C.F.R. § 831.201(a)(13) are weak and we 

DENY his request for review. 

ORDER

¶8 This is the final decision of the Merit Systems Protection Board in this 

regulation review proceeding. Title 5 of the Code of Federal Regulations, section 

1203.12(b) (5 C.F.R. § 1201.12(b)). 

NOTICE TO THE APPELLANT REGARDING

YOUR FURTHER REVIEW RIGHTS

You have the right to request the United States Court of Appeals for the 

Federal Circuit to review this final decision. You must submit your request to the 

court at the following address: 
6

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 your receipt of this order. If you have a representative in this case and your 

representative receives this order before you do, then you must file with the court 

no later than 60 calendar days after receipt by your representative. 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). You may read 

this law, as well as review the Board’s regulations and other related material, at 

our website, http://www.mspb.gov. Additional information is available at the 

court's website, http://fedcir.gov/contents.html. 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. 

FOR THE BOARD: 

______________________________ 

Bentley M. Roberts, Jr. 

Clerk of the Board 

Washington, D.C.