Anacleto C. Baldueza v. Office of Personnel Management

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

ANACLETO C. BALDUEZA, DOCKET NUMBER

Appellant, SF-0831-14-0141-I-1

v.

OFFICE OF PERSONNEL DATE: August 20, 2014

MANAGEMENT,

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1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 The appellant has filed a petition for review of the initial decision, which

affirmed the Office of Personnel Management’s (OPM’s) reconsideration decision

denying his application for a retirement annuity. 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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

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

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

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).

DISCUSSION OF ARGUMENTS ON REVIEW

¶2 The appellant 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 December 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 The appellant applied for a Civil Service Retirement System (CSRS)

deferred annuity on April 15, 2013. IAF, Tab 5 at 12-15. OPM issued a

reconsideration decision, dated August 5, 2013, finding the appellant ineligible

for a retirement annuity under CSRS. IAF, Tab 5 at 10. OPM informed the

3

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, the administrative judge issued

an order closing the 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 decision finding that

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. Fredeluces v. Office of Personnel

Management, 57 M.S.P.R. 598, 601, aff’d, 16 F.3d 421 (Fed. Cir. 1993) (Table).

Two types of federal service are pertinent to determine whether an individual is

entitled to 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). Almost all federal service is

creditable service. Id. 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 basic pay into the Civil Service Retirement and Disability

Fund. Id. To qualify for a civil service retirement annuity, an employee must

complete at least 5 years of creditable civilian service and must have served at

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 appellant 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

least 1 of his last 2 years of federal service in a covered position. 3 Id. at 324;

see 5 U.S.C. § 8333(a)-(b).

¶6 Temporary, intermittent, term, and excepted indefinite appointments have

been excluded from CSRS coverage. 5 C.F.R. § 831.201(a)(1), (2), (6), (13),

(14); see also Rosete v. Office of Personnel Management, 48 F.3d 514, 519 (Fed.

Cir. 1995) (upholding the regulatory exclusion of indefinite appointments from

CSRS coverage); De Jesus v. Office of Personnel Management, 63 M.S.P.R.

586, 590-93 (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 The appellant argues in his petition for review that the Navy is a

government agency, all hired employees are registered by the Civil Service

Commission, and that he is covered by the CSRS. See PFR File, Tab 1 at 2-3.

The appellant submits 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

appellant 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 appointment 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, to 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.

§ 831.112(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) only 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

period of service, the Standard Form (SF) 50s 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 reference to “Other” or no retirement coverage on an appellant’s SF-50s

means that the individual was not employed in covered service. Espiritu v. Office

of Personnel Management, 114 M.S.P.R. 192, ¶ 8 (2010) (citing Rosete, 48 F.3d

at 520), 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. The

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 under a non-CSRS plan, such as FEPI, indicates that an appellant’s

service is not covered under the CSRS. Quiocson v. Office of Personnel

Management, 490 F.3d 1358, 1360 (Fed. Cir. 2007). 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 compensation or pension. See PFR File, Tab 1 at 4.

Further, he requested “humanitarian help” for his medical conditions. See id.

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, the Board does not

have jurisdiction over all actions that are alleged to be incorrect. Preece v.

Department of the Army, 50 M.S.P.R. 222, 226 (1991). The 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 Appeals 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 administrative judge that the appellant has not

demonstrated that he completed 5 years of 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 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

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

7

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 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 services provided by any attorney

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

FOR THE BOARD: ______________________________

William D. Spencer

Clerk of the Board

Washington, D.C.