Wilfred Veatch v. Office of Personnel Management ( 2023 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
WILFRED R. VEATCH, DOCKET NUMBER
Appellant, SF-0831-16-0805-I-1
v.
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THIS FINAL ORDER IS NONPRECEDENTIAL 1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
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
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
3
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
2
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.
3
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.
4
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
4
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).
5
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
5
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.
6
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
7
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.
8
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
9
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
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.
6
The original statutory provision that provided for judicial review of cer tain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
10
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
FOR THE BOARD: /s/ for
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.