                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     ROBERTO A. MATA,                                DOCKET NUMBER
                  Appellant,                         SF-0831-15-0397-I-1

                  v.

     OFFICE OF PERSONNEL                             DATE: September 21, 2015
       MANAGEMENT,
                   Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Rufus F. Nobles, I, Zambales, Philippines, for the appellant.

           Sarah Murray, 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) finding him ineligible to receive a retirement 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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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 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, 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).
¶2         The appellant was employed as a Planner and Estimator (Shipfitter) by the
     Department of the Navy in the Philippines.        He received an excepted-service
     appointment effective August 21, 1968, and had continuous service until his
     involuntary termination due to reduction in force effective August 21, 1992.
     Initial Appeal File (IAF), Tab 5 at 37-41, 43-46, 55, 63-74, 77, 79, 81, 83-84,
     86-87, 92-94. During this period of employment, the appellant’s Standard Forms
     50 (SF-50) indicated that his retirement code was “4-None” or “5-Other,” and his
     annuitant indicator was listed as “9” or “Not Applicable.”          Id.   The SF-50
     documenting the appellant’s July 3, 1992 termination reflects that he was
     terminated under the authority of the Filipino Employment Personnel Instruction
     (FEPI) and states that he was “entitled to 24 months severance pay based on
     24 years, and 4 days of creditable service.” Id. at 92. Additionally, the record
     includes SF-50s documenting the appellant’s July 4, 1992 appointment, not to
     exceed August 28, 1992, and his termination effective August 21, 1992.            Id.
     at 93-94. On July 20, 2013, the appellant applied for deferred retirement under
                                                                                        3

     CSRS. Id. at 24-25. OPM denied the application, finding that he was not entitled
     to a deferred annuity under CSRS and not eligible to make a CSRS deposit for his
     Federal service.    Id. at 5-7, 21.    The appellant filed an appeal of OPM’s
     reconsideration decision. IAF, Tab 1. The administrative judge affirmed OPM’s
     decision. IAF, Tab 8, Initial Decision (ID).
¶3         On review, the appellant contends that he is entitled to a CSRS retirement
     annuity under 5 C.F.R. § 831.303(a), and he asserts that the administrative judge
     failed to address this argument.        Petition for Review (PFR) File, Tab 1.
     Specifically, the appellant reasserts that he is automatically entitled to make a
     deposit for his service ending before October 1, 1981. He contends that, with the
     promulgation of section 831.303(a) in August 1983, his service prior to
     October 1, 1982, was converted to covered service with a vested CSRS
     annuity. Id.
¶4         As set out in the initial decision, entitlement to a CSRS retirement annuity
     requires 5 years of creditable service, ending with at least 1 of the last 2 years in
     a position covered by the CSRS. ID at 3. The administrative judge reviewed the
     applicable laws, regulations, and case law, applied them to the facts in this case,
     and correctly concluded that the appellant was not entitled to a retirement annuity
     because he failed to establish that he was ever employed in a covered position.
     ID at 3-7.
¶5         Regarding    the   appellant’s    specific   claim   to   entitlement    under
     section 831.303(a), we find no statute or regulation that would allow the appellant
     to make a deposit or to receive a deferred annuity under the circumstances. To be
     entitled to make a service deposit under 5 U.S.C. § 8334, the appellant would
     need to meet the definition of “employee” under 5 C.F.R. § 831.112(a)(2), which
     requires that he already have “civil service retirement annuity rights” based on
     CSRA-covered service. Dela Rosa v. Office of Personnel Management, 583 F.3d
     762, 764-65 (Fed. Cir. 2009).     Similarly, 5 C.F.R. § 831.303(a), which allows
     those already covered by the CSRS to include certain creditable service
                                                                                  4

performed before October 1, 1982, in calculating a retirement annuity, does not
permit the appellant, who is not covered by the CSRS, to make a CSRS deposit.
See Dela Rosa, 583 F.3d at 765.       Accordingly, we find that the administrative
judge correctly determined that the appellant is not entitled to make a deposit or
to receive an annuity under the CSRS. 2

                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).
     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,

2
  The appellant filed a reply dated August 25, 2015, to the agency’s response to his
petition for review, which the Board received on September 9, 2015. PFR File, Tab 5.
Although this submission appears to have ben untimely filed, we have considered it,
and it does not change the result.
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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 appeal to
the 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.
