Opinion

Wilfred Veatch v. Office of Personnel Management

Court: Merit Systems Protection Board
Filed: Apr 14, 2023
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 23.1%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

WILFRED R. VEATCH, DOCKET NUMBER

Appellant, SF-0831-16-0805-I-1

OFFICE OF PERSONNEL DATE: April 14, 2023

MANAGEMENT,

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

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

FINAL ORDER

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

affirmed the reconsideration decision issued by the Office of Personnel

Management (OPM) denying his application for a deferred retirement annuity.

Generally, we grant petitions such as this one only in the following

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

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.

DISCUSSION OF ARGUMENTS ON REVIEW

¶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 Machinist in the excepted service on

October 5, 1965, and his subsequent appointments were either temporary or

indefinite appointments in the excepted service until he retired on July 17, 1992.

ID at 2, 7; Petition for Review (PFR) File, Tab 1 at 2; IAF, Tab 2 at 10. Below,

the parties submitted only one Standard Form 50 (SF-50), which documents the

appellant’s retirement plan as “other.” IAF, Tab 2 at 10; ID at 2-3. The SF-50

remarks section stated that he was covered by the retirement system applicable to

employees hired pursuant to the Filipino Employees Personnel Instructions

(FEPI). IAF, Tab 2 at 10; ID at 2-3.

¶3 On July 31, 2013, more than 20 years after the appellant retired, he applied

for a deferred retirement annuity under the Civil Service Retirement System

(CSRS) based on his service with the Navy from October 5, 1965, to July 17,

1992. 2 IAF, Tab 2 at 8-9; ID at 3-4. OPM issued a reconsideration decision

denying his application. IAF, Tab 2 at 6-7.

¶4 The appellant appealed OPM’s reconsideration decision to the Board and he

declined a hearing on his appeal. 3 IAF, Tab 1 at 1, 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 under the CSRS because he failed to

show that any of his service was performed in a position covered under the CSRS.

Id.

¶5 The appellant has filed a petition for review of the initial decision. PFR

File, Tab 1. OPM has filed a response in opposition to his petition. PFR File,

Tab 4.

¶6 The appellant, as an applicant, bears the burden of proving his entitlement

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

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

The administrative judge characterized the appellant 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 submitted by the appellant with his deferred annuity

application. IAF, Tab 2 at 4-6. However, 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; PFR

File, Tab 1 at 1. Accordingly, we modify the initial decision to find that the appellant

only applied for a deferred annuity.

This appeal originally was 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.

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

least 1 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 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).

¶7 The administrative judge affirmed 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 6-7, 9. On review, the

appellant argues that his service was covered by virtue of 5 C.F.R. § 831.303(a)

and 5 U.S.C. § 8334(c). PFR File, Tab 1 at 2-17. He also argues that the

retirement system available to FEPI employees is not “another retirement system

for Government employees” that would preclude his coverage under the CSRS.

Id. at 17-19. In addition, he submits documents with his petition for review. 4 Id.

at 20-25. For the reasons discussed below, we agree with the administrative

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

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

for a deferred retirement annuity. Temporary and indefinite appointments are

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

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,

respectively, 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 reco rd was closed despite the

party’s due diligence).

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).

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

the Fund, 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 from the

employee’s pay. 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.

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

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

that service is not covered service. 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 17-19.

¶10 Accordingly, we deny the petition for review and affirm the initial decision,

as modified.

NOTICE OF APPEAL RIGHTS 5

The initial decision, as supplemented b y this Final Order, constitutes the

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

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.

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 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

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.

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 competent jurisdiction. 6 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