Salvador v. Macalinao v. Office of Personnel Management

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
SALVADOR V. MACALINAO, DOCKET NUMBER
Appellant, SF-0831-15-0792-I-1
v.
OFFICE OF PERSONNEL DATE: August 12, 2016
MANAGEMENT,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Rufus F. Nobles, I, Zambeles, Philippines, for the appellant.
Roxann Johnson, 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 a decision of the Office of Personnel Management (OPM) denying his
request for annuity benefits under the Civil Service Retirement System (CSRS).
Generally, we grant petitions such as this one only when: the initial decision
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
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. 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, 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 formerly was employed by the Department of the Navy in
Subic Bay, Philippines, under a series of excepted-service appointments from
August 25, 1975, to August 30, 1991, when he was terminated pursuant to a
reduction in force. Initial Appeal File (IAF), Tab 4 at 14-32. On July 7, 2015,
OPM denied the appellant’s application for a CSRS retirement annuity because it
found that he had never served in a position subject to the CSRS. IAF, Tab 1
at 1. The appellant filed a Board appeal challenging OPM’s decision. Id. at 2.
He did not request a hearing. Id. at 2-4. He asserted that he was entitled to a
retirement annuity based on his service from August 25, 1975, to September 30,
1982, because, under his interpretation of 5 U.S.C. § 8334(c) and 5 C.F.R.
§ 831.303(a), he is deemed to have made a deposit for his service during this
time. IAF, Tabs 5, 7-8.
¶3 Based on the written record, the administrative judge issued an initial
decision affirming OPM’s decision. IAF, Tab 9, Initial Decision (ID). The
3
administrative judge found that the appellant failed to prove his entitlement to a
CSRS retirement annuity because he failed to show that he served in a position
that was covered by or subject to the CSRS. ID at 4. First, the administrative
judge found that the CSRS excluded the appellant’s excepted-service term and
indefinite appointments from coverage. Id. Second, the administrative judge
noted that no CSRS retirement deductions were taken from the appellant’s
paychecks during his employment. Id. Third, the administrative judge found that
the appellant’s Standard Form 50s (SF-50s), which designated his retirement
eligibility as “other,” reflected that he was not employed in a position covered by
the CSRS. ID at 4-5. Finally, the administrative judge found that the appellant
had received a lump-sum severance payment under a different retirement system,
the Filipino Employment Personnel Instructions (FEPI), which indicated that he
was covered under another retirement system and not under the CSRS. ID at 5-6.
The administrative judge also found that the appellant was not entitled to make a
deposit or to have the deposit waived for his period of service from
August 25, 1975, through September 30, 1982, because such rights are only
available to someone who, unlike the appellant, is covered by the CSRS. ID
at 6-8.
¶4 The appellant has filed a petition for review in which he reasserts his
argument that, because no CSRS deductions were taken from his pay during his
civilian service prior to October 1, 1982, this period should be credited towards
his CSRS annuity and he should be deemed to have made a deposit for this
period. Petition for Review (PFR) File, Tab 1 at 1-12. 2 The agency has opposed
the appellant’s petition. PFR File, Tab 4.
2
The appellant’s petition for review was untimely filed on February 29, 2016, over
1 month after the January 12, 2016 filing deadline. ID at 8; PFR File, Tab 1. He has
filed a motion to waive the time limit in which he asserts that good cause exists for his
untimely filing because, due to mail delays, he did not receive the initial decision until
after the deadline for filing a petition for review. PFR File, Tab 5 at 1. In light of our
4
DISCUSSION OF ARGUMENTS ON REVIEW
¶5 In appeals from OPM final decisions involving CSRS 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); Quiocson v. Office of Personnel
Management, 490 F.3d 1358, 1360 (Fed. Cir. 2007). 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 CSRS for which
employees must deposit part of their pay into the Civil Service Retirement and
Disability Fund. Anahaw v. Office of Personnel Management, 85 M.S.P.R. 646,
¶ 4 (2000).
¶6 The appellant has not contested the administrative judge’s findings that he
served under appointments that were not subject to the CSRS; his SF-50s identify
his retirement status as “other”; that no retirement deductions were ever taken
from his pay; and that he received severance pay in accordance with FEPI. ID
at 4-6. Thus, he has shown no error in the administrative judge’s finding that he
failed to prove entitlement to a CSRS annuity. Id.; see, e.g., Espiritu v. Office of
Personnel Management, 114 M.S.P.R. 192, ¶¶ 7-9 (2010), aff’d, 431 F. App’x
897 (Fed. Cir. 2011). 4
disposition in this appeal, we do not reach the issue of the timeliness of the appellant’s
petition for review.
3
A preponderance of the evidence is the 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).
4
Some of the appellant’s SF-50s designate his retirement eligibility as “none.” IAF,
Tab 4 at 29-32. However, 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 the covered
service. Espiritu, 114 M.S.P.R. 192, ¶ 8.
5
¶7 Even though the appellant did not serve in covered positions so as to entitle
him to an annuity under the CSRS, he asserts 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 1-12. 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 who
have no covered service. Thus, there is no support in the regulation for the
appellant’s assertion that he is deemed to have made a deposit qualifying him for
an annuity when he is otherwise ineligible for an annuity due to his lack of
covered service. Accordingly, we find that the administrative judge properly
found that the appellant is not entitled to make a deposit. ID at 6-8; 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 U.S.
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
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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 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
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: ______________________________
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.