Renato J. Valenzuela v. Office of Personnel Management ( 2015 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
RENATO J. VALENZUELA, DOCKET NUMBER
Appellant, SF-0831-14-0665-I-1
v.
OFFICE OF PERSONNEL DATE: March 27, 2015
MANAGEMENT,
Agency.
THIS FINAL ORDER IS NO NPRECEDENTIAL 1
Rufus F. Nobles, I, Zambales, Philippines, for the appellant.
Patrick Jennings, 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 Office of Personnel Management’s (OPM’s) reconsideration decision
denying his request to make a deposit in order to receive service credit under the
Civil Service Retirement System (CSRS) and to receive an annuity. Generally,
1
A nonprecedential order is one that the Board has determined does not add
sign ificantly 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 Parties may cite nonprecedential orders,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
we grant petitions such as this 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).
DISCUSSION OF ARGUMENTS ON REVIEW
¶2 The record reflects that the U.S. Navy employed the appellant at the Naval
Supply Depot in Subic Bay, Philippines under a series of excepted service
appointments from December 3, 1981, to July 17, 1992, when he was terminated
due to a reduction in force. Initial Appeal File (IAF), Tab 7 at 10-36. In 2008
and 2009, the appellant applied to make a deposit into the Civil Service
Retirement and Disability Fund (CSRDF) and for a deferred annuity based on his
federal service at Subic Bay. Id. at 52-53, 61-64. OPM denied the appellant’s
applications, finding that he had never served in a position subject to the Civil
Service Retirement Act (CSRA) and, therefore, he was not eligible to make a
service deposit or to receive an annuity under CSRS. Id. at 49, 58. The appellant
requested reconsideration of the denials, id. at 42-48, 54-57, which OPM denied
3
on September 3, 2014, id. at 6-8. 2 The appellant then appealed OPM’s
reconsideration decision to the Board. IAF, Tab 1. In an October 27, 2014 initial
decision the administrative judge affirmed OPM’s reconsideration decision, and
the appellant timely petitioned for review. IAF, Tab 10, Initial Decision (ID);
Petition for Review (PFR) File, Tab 1.
¶3 To qualify for a civil service retirement annuity, a 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 CSRA
and for which an employee must deposit part of his pay into the CSRDF.
Encarnado v. Office of Personnel Management, 116 M.S.P.R. 301, ¶ 7 (2011).
Pursuant to OPM regulations, service rendered under temporary or excepted
indefinite appointments does not qualify as “covered” service. Id., ¶
8; 5 C.F.R.§ 831.201(a). The appellant, as the 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).
¶4 The appellant does not dispute that he was initially appointed to a position
with a not to exceed date (NTE), i.e., a temporary position that was excluded
from coverage under the CSRA. See PFR File, Tab 1. However, he appears to
argue that he was converted to a covered position either: (1) by December 3,
1982, after he had completed 1 year of current, continuous service in his first
NTE position; or (2) by August 12, 1990, when he was promoted to the position
2
OPM originally issued a reconsideration decision on August 16, 2011, wh ich the
appellant appealed to the Board. See Va lenzuela v. Office of Personnel Management,
MSPB Docket No. SF-0831-11-0818-I-1, Initial Decision (0818 ID) at 1 (Aug. 31,
2011). On August 30, 2011, OPM rescinded the reconsideration decision, and the
administrative judge dismissed the appeal for lack of jurisdiction. 0818 ID at 1-2.
OPM reissued the reconsideration decision on September 3, 2014, which is now before
the Board. IAF, Tab 7 at 6-8.
4
of Inspector, which he contends was not excluded from CSRA coverage because
the Standard Form (SF) 52 reflects that his trial period had been completed and
that he was in tenure group “1-permanent” and retirement plan “5-other.” Id.
at 1-3; see IAF, Tab 7 at 10-11, 15-16. As such, the appellant concludes that he
served in a “covered” position and is entitled to an annuity under CSRS. PFR
File, Tab 1 at 1-3.
¶5 Even if, as the administrative judge found, the appellant was serving in a
permanent position at the time of his termination, the record shows that the
appellant never served in a position covered under the CSRA and thus, he does
not qualify for a CSRS annuity. See 5 U.S.C. § 8333(b); see also ID at 3-4.
First, the appellant does not contend, and there is no evidence to suggest, that
retirement deductions were ever withheld from his pay. See PFR File, Tab 1; see
also IAF, Tab 7 at 10-36. The fact that the employing agency did not withhold
retirement deductions weighs against finding that the appellant was covered under
the CSRA. See Arcinas v. Office of Personnel Management, 82 M.S.P.R. 603, ¶ 9
(1999). Second, the SF-50s in the record all designate the appellant’s retirement
eligibility as “5-other” or “5,” indicating “other” retirement system. 3 IAF, Tab 7
at 10-11, 13, 15-16, 18-19, 21, 23-24, 26-27, 30, 32-34, 36. 4 The Board has held
that the reference to “other” or “none” in an applicant’s SF-50s means that the
individual was not employed in the 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). Third, the SF-50 documenting the appellant’s termination
reflects that he was entitled to severance pay under the Filipino Employment
Personnel Instructions (FEPI) plan. See id. at 10. It is well settled that an
applicant’s receipt of benefits under a non-CSRS plan—such as the FEPI plan—
3
Depending on the date of the SF-50, the applicable retirement plan is indicted in box
8, 10, or 30 of the form. See IAF, Tab 7 at 10-11, 13, 15-16, 18-19, 21, 23-24, 26-27,
30, 32-34, 36.
4
The retirement system code on two of the SF-50s is not legible. IAF, Tab 7 at 27, 33.
5
indicates that his service was not covered under the CSRA. 5 U.S.C.
§ 8331(1)(L)(ii); Espiritu, 114 M.S.P.R. 192, ¶ 8. Accordingly, we agree with the
administrative judge that OPM correctly determined that the appellant did not
serve in a “covered” position and was, therefore, ineligible to receive an annuity
under CSRS.
¶6 Lastly, the appellant appears to argue that, pursuant to 5 C.F.R.
§ 831.112(a)(2), OPM erred by failing to afford him an “automatic opportunity”
to make a deposit to the CSRDF for his “nondeduction service” from
September 30, 1982, to July 17, 1992. PFR File, Tab 1 at 6. However, in order
to be eligible to make a deposit in the CSRDF, the regulation cited by the
appellant requires an individual to be either currently employed in a covered
position or eligible for a CSRS annuity based on covered service. See 5 C.F.R.
§ 831.112(a); see also Encarnado, 116 M.S.P.R. 301, ¶ 9. Because the appellant
is not currently employed in a “covered” position or, as discussed above, eligible
for an annuity, he is not eligible to make a deposit to the CSRDF. See 5 C.F.R.
§ 831.112(a); see also Encarnado, 116 M.S.P.R. 301, ¶ 9. Thus, we agree with
the administrative judge’s finding that OPM correctly denied the appellant’s
application to make a service deposit.
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.
6
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).
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.