The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
FRANCISCO T. GARCIA, DOCKET NUMBER
Appellant, SF-0831-14-0567-I-1
v.
OFFICE OF PERSONNEL DATE: September 14, 2015
MANAGEMENT,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Rufus F. Nobles, I, Zambales, Philippines, for the appellant.
Karla W. Yeakle, Washington, D.C., for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Mark A. Robbins, 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 the appellant’s entitlement to a deferred annuity under the Civil
Service Retirement System (CSRS). Generally, we grant petitions such as this
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
one only when: 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 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).
BACKGROUND
¶2 The appellant is a former employee of the Department of the Navy (Navy)
in Subic Bay, Philippines. Initial Appeal File (IAF), Tab 5 at 136-37. The Navy
appointed the appellant to a position in the excepted service in 1972 with a
not-to-exceed (NTE) date in January 1973. Id. The Navy extended his
appointment several times, with a break in service in April 1973, but terminated
him in May 1974. Id. at 124-35. The appellant was entitled to 2 months’ salary
as severance pay pursuant to a collective bargaining agreement. Id. at 124.
¶3 From June 1974 to July 1975, the appellant served in a series of
excepted-service NTE positions with brief breaks in service. Id. at 115-23. In
October 1975, the Navy appointed him to an excepted-service NTE position,
which it extended through a series of excepted-service NTE appointments until
February 1980. Id. at 96-114. Then, in February 1980, the Navy converted the
appellant to an excepted-service indefinite appointment. Id. at 94-95. He served
3
continuously under an excepted-service indefinite appointment until September
1992, when he resigned in lieu of involuntary action by reduction in force. Id. at
59-95. He received severance pay equivalent to 18 months’ salary following his
September 1992 resignation. Id. at 57-59.
¶4 In 2012, the appellant applied for a deferred annuity under CSRS. IAF, Tab
5 at 33-34. In an initial decision, OPM denied his application, finding that he
never served in a position subject to the Civil Service Retirement Act (CSRA).
Id. at 30. He requested reconsideration. Id. at 8-29. OPM issued a
reconsideration decision, again denying the appellant’s request. Id. at 5-7.
Specifically, OPM found that the appellant had not completed the minimum
5 years of creditable service required for entitlement to a CSRS annuity. Id. at 7.
OPM also found that the appellant’s service was excluded from coverage under
the CSRA because he had served in nonappropriated funds and personal contract
appointments. Id. Therefore, OPM determined that he did not have 1 year of
service subject to the CSRA within the 2 years immediately prior to his
retirement as was required for receipt of an annuity. Id.
¶5 The appellant filed this Board appeal challenging OPM’s reconsideration
decision. IAF, Tab 1. He did not request a hearing. Id. at 1. He asserted
entitlement to an annuity based upon his service that ended in September 1982,
arguing that the required deposit to receive credit for this service is constructively
waived and that, although he did not apply to OPM to make a deposit, he should
be able to make a deposit for his service from September 1982 until his
resignation in 1992. Id. at 2-4. Specifically, the appellant argued that, although
he has not made a deposit as to his service prior to October 1982, based upon his
interpretation of 5 U.S.C. §§ 8333, 8334(c), and 8339, and 5 C.F.R. § 831.303(a),
a deposit under the CSRS is presumed for the period prior to October 1, 1982.
IAF, Tab 1 at 16-27. The appellant further asserted that he satisfied the
requirement under the CSRA that he have 5 years of creditable service with
1 year of the last 2 years being in a position covered by CSRS because, at the end
4
of his constructive separation in September 1992, he had more than 8 years of
creditable service and the last 2 years and 3 months of that service had been under
an indefinite appointment. Id. at 27. The appellant also indicated that he is
asserting a claim of “harmful procedural error” and appeared to assert a
discrimination claim based upon his national origin. IAF, Tab 1 at 2, Tab 7 at 4.
OPM responded, asserting that the appellant’s Standard Form 50 (SF-50)
consistently listed his retirement coverage as “none” or “other,” and that his
temporary or indefinite appointments are specifically excluded from retirement
coverage. IAF, Tab 5 at 4. OPM also asserted that the appellant was not entitled
to make a deposit because he is not a current employee in a position subject to the
CSRA or a former employee who retained civil service retirement annuity rights
and did not have any covered service. Id.
¶6 The administrative judge issued an initial decision affirming OPM’s
reconsideration decision. IAF, Tab 11, Initial Decision (ID). Specifically, he
found that the appellant failed to prove entitlement to a deferred retirement
annuity because the CSRA excluded his excepted service, temporary
appointments, and subsequent excepted-service indefinite appointment from its
coverage. ID at 9-10. The administrative judge also noted that the appellant’s
receipt of a lump sum payment under a different retirement system, the Filipino
Employment Personnel Instructions (FEPI), indicated that he was covered under
another retirement system and thus was not covered under the CSRA. ID at
12-13. Additionally, the administrative judge found that, to the extent that the
appellant asserted that he was entitled to make a deposit or to receive a reduced
annuity based upon his decision not to make a deposit, these rights would only be
available to someone who, unlike the appellant, is covered by the CSRA.
ID at 13. Lastly, the administrative judge found that OPM could not have
committed harmful procedural error because, even if true, none of the appellant’s
asserted errors would have affected the outcome of his retirement application and
5
subsequent appeal, and that his claim of discrimination was misplaced because
these retirement matters do not involve any discretion by OPM. ID at 15-16.
¶7 The appellant has petitioned for review. Petition for Review (PFR) File,
Tab 1. On review, he reasserts many of the same arguments from below. 2 Id.
OPM has responded in opposition to the appellant’s petition. PFR File, Tab 4.
DISCUSSION OF ARGUMENTS ON REVIEW
¶8 In appeals from OPM reconsideration decisions involving CSRA retirement
benefits, the appellant has the burden of proving entitlement to benefits by
preponderant evidence. 3 5 C.F.R. § 1201.56(b)(2)(ii). To qualify for a civil
service retirement annuity, a Government employee ordinarily must complete at
least 5 years of creditable service and at least 1 of the 2 years before separation
must be in “covered service.” 5 U.S.C. § 8333(a)-(b). Almost all Federal service
is creditable 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). On the other hand, covered service includes only appointments subject
to the CSRA for which employees must deposit part of their pay into the Civil
Service Retirement and Disability Fund (Fund). Anahaw v. Office of Personnel
Management, 85 M.S.P.R. 646, ¶ 4 (2000).
¶9 The appellant claims entitlement to an annuity based upon his service in a
series of NTE, excepted-service appointments and in an indefinite
excepted-service appointment ending prior to October 1, 1982. PFR File, Tab 1
at 11; see IAF, Tab 5 at 95-136. These appointments do not constitute covered
2
We do not consider the evidence that the appellant has presented for the first time on
review, including an OPM information sheet and a court pleading, because he has not
shown that, despite his due diligence, it was unavailable when the record closed below.
5 C.F.R. § 1201.115(d); see PFR File, Tab 1 at 12-17. Even if we did consider this
evidence, however, it would not affect our disposition of the appeal.
3
A preponderance of the evidence is that degree of relevant evidence that a reasonable
person, considering the record as a whole, would accept as sufficient to find that a
contested fact is more likely to be true than untrue. 5 C.F.R. § 1201.4(q).
6
service because nonpermanent and indefinite appointments are excluded from
coverage under the CSRA. De Jesus v. Office of Personnel
Management, 63 M.S.P.R. 586, 589-94 (1994), aff’d, 62 F.3d 1431 (Fed. Cir.
1995) (Table), cert. denied, 517 U.S. 1138 (1996). Because the appellant did not
have covered service under the CSRA, he is not entitled to an annuity for his
service prior to October 1, 1982. See 5 U.S.C. § 8333(b). Additionally, to the
extent that the appellant asserts that he is entitled to an annuity based upon his
service beginning in October 1982, he is not entitled to an annuity based upon
this service because he was in an excepted-service, indefinite appointment, which
is excluded from coverage under the CSRA. See De Jesus, 63 M.S.P.R. at 590-
94.
¶10 We note the appellant’s assertion that his status as a full-time employee
rendered his service covered under the CSRA. See, e.g., IAF, Tab 1 at 19.
However, service as a full-time employee does not impact CSRA coverage absent
a showing that the schedule affected the temporary, term, or indefinite character
of an appointment, or that an individual made contributions to the Fund. See
Noveloso, 45 M.S.P.R. at 325. The appellant has made no such showing and has
not asserted that he contributed to the Fund; thus, his full-time status does not
change the fact that his service was not covered by the CSRA. Additionally, the
appellant’s SF-50s support our finding that he is not covered by the CSRA
because they designate his retirement as either “none” or “other.” 4 IAF, Tab 5 at
59-133. The Board has held that the reference to “other” or “none” in 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), aff’d, 431 F. App’x 897 (Fed. Cir. 2011).
4
One of the appellant’s SF-50s designated his retirement as “FS.” IAF, Tab 5 at 95.
We agree with the administrative judge that this designation appeared to refer to the
Foreign Service Retirement and Disability System. See ID at 3-4 n.2. The appellant,
though, has not asserted that this designation supports his entitlement to retirement
benefits under that system. Therefore, we need not address this apparent error.
7
¶11 Furthermore, we agree with the administrative judge that, because the
record supports a finding that the appellant was covered by FEPI and a collective
bargaining agreement, he is excluded from coverage under the CSRA. ID at
12-13. Specifically, the appellant’s SF-50 from May 1974 indicates that he
received a severance payment pursuant to a collective bargaining agreement and
his SF-50 from September 1992 indicates that he received a second severance
payment. IAF, Tab 5 at 59, 124. The receipt of these severance payments under
another retirement system, designated as “other” on the appellant’s SF-50s,
excludes him from coverage under the CSRA. 5 U.S.C. § 8331(1)(L)(ii); see
Vergara v. Office of Personnel Management, 104 M.S.P.R. 616, ¶ 2 n.2 (2007).
¶12 Even though the appellant did not serve in covered positions so as to entitle
him to an annuity under CSRS, he appears to assert that he should be considered
eligible for an annuity because a deposit was constructively made on his behalf
pursuant to 5 C.F.R. § 831.303(a). PFR File, Tab 1 at 7-11. Section 831.303(a)
is contained in subpart C of part 831, which addresses whether service is
creditable. Section 831.303(a) describes how to calculate an annuity that includes
credit for years of service performed prior to October 1, 1982, of an otherwise
entitled individual for periods of service for which retirement deductions have not
been taken; nowhere does it provide for service credit to individuals that have no
covered service. There is thus no support in the regulation for the appellant’s
assertion that he is deemed to have made a deposit qualifying him for an annuity
where he is otherwise ineligible for an annuity due to his lack of covered service.
¶13 Finally, the appellant asserted below that he should be able to make a
deposit for his service from the end of September 1982 until September 1992.
IAF, Tab 1 at 4. To the extent that he previously asserted in his request for
reconsideration that he should have been able to make a deposit, id. at 18, OPM
did not address this issue, IAF, Tab 5 at 5-7. Although, ordinarily, the Board has
jurisdiction over retirement issues only once OPM has issued a reconsideration
decision regarding those issues, Kilpatrick v. Office of Personnel
8
Management, 94 M.S.P.R. 609, ¶ 8 (2003), where, as here, OPM failed to
adjudicate an issue that was before it, we may consider the nonadjudicated claims
and issues and may remand the case to OPM for a full review of the matter, Ott v.
Office of Personnel Management, 120 M.S.P.R. 453, ¶ 4 (2013). Because the
appellant made clear that his goal in making a deposit was to receive a CSRS
annuity and OPM addressed the issue of his entitlement to a CSRS annuity, we
need not remand the appeal. Instead, we find that the appellant is not entitled to
make a deposit because he did not have any covered
service. 5 5 U.S.C. §§ 8331(1), 8334(c); see Muyco v. Office of Personnel
Management, 114 M.S.P.R. 694, ¶¶ 12-13 (2010).
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
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).
5
As described above, the administrative judge found that the appellant failed to meet
his burden concerning his harmful procedural error and discrimination claims. ID at
15-16. We see no reason to disturb these findings. Jordan v. Office of Personnel
Management, 108 M.S.P.R. 119, ¶ 9 (2008); 5 C.F.R. § 1201.4(r).
9
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 an appeal to the
United States 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 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.