                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     CESAR A. DELAROSA,                              DOCKET NUMBER
                   Appellant,                        SF-0831-14-0602-I-1

                  v.

     OFFICE OF PERSONNEL                             DATE: January 15, 2015
       MANAGEMENT,
                   Agency.



                THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Rodelio V. Mendoza, Camarines Sur, Philippines, for the appellant.

           Cynthia Reinhold, Washington, D.C., for the agency.


                                           BEFORE

                              Susan Tsui Grundmann, Chairman
                              Anne M. Wagner, Vice 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) denying the appellant the opportunity to redeposit his refunded retirement
     deductions. Generally, we grant petitions such as this one only when: the initial

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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     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).
¶2            The appellant is retired from the U.S. Navy and was also employed in
     civilian positions subject to the Civil Service Retirement System. Initial Appeal
     File (IAF), Tab 8 at 13. In 1988, the appellant resigned from federal employment
     and applied for a refund of his retirement contributions for his entire period of
     service from 1981 to 1988. Id. at 15. He received two disbursements in 1989.
     Id. at 8-9. After OPM informed the appellant in 1991, that he may be entitled to
     an additional refund, he applied for and received an additional disbursement. Id.
     at 13.
¶3            In 2013, the appellant filed an application for a deferred retirement annuity.
     Id. at 31-33. OPM denied the appellant’s application because he had withdrawn
     his retirement deductions. Id. at 29-30. Despite being advised of his right to seek
     Board review, id., the appellant did not appeal OPM’s decision. In 2014, the
     appellant submitted correspondence to OPM requesting payment of a deferred
     annuity and requesting to redeposit the refunded deductions. Id. at 26. In its
     response to the appellant’s request, OPM stated that the appellant was ineligible
     and would remain ineligible to redeposit the withdrawn deductions unless he was
                                                                                       3

     reemployed in a position subject to retirement deductions.         Id. at 5.    The
     correspondence provided the appellant with Board appeal rights. Id.
¶4         The appellant appealed OPM’s decision to the Board. IAF, Tab 1. In its
     response to the appeal, OPM stated that it discovered a balance of $46.11 in
     retirement deductions that should have been refunded to the appellant.         IAF,
     Tab 8 at 4. OPM also stated that the issue of entitlement to a deferred annuity
     was not before OPM or the Board because the appellant did not appeal the
     previous final decision. Id. In the initial decision, the administrative judge found
     that the issue of entitlement to a deferred annuity was not before the Board and
     that the appellant was not entitled to make a deposit.        IAF, Tab 15, Initial
     Decision. On petition for review, the appellant argues, as he did below, that the
     existence of a remaining balance entitles him to redeposit the retirement
     deductions. IAF, Tab 9 at 4; Petition for Review (PFR) File, Tab 1 at 4-5. OPM
     has responded in opposition to the petition, PFR File, Tab 5, and the appellant has
     filed a reply, PFR File, Tab 6.

                     DISCUSSION OF ARGUMENTS ON REVIEW
¶5         We find that the appellant is not entitled to redeposit his retirement
     deductions.   The appellant, as an applicant for a retirement benefit, bears the
     burden of proving his entitlement by a preponderance of the evidence. See
     Cheeseman v. Office of Personnel Management, 791 F.2d 138 (Fed. Cir. 1986),
     cert. denied, 479 U.S. 1037 (1987).          Only an “employee” may make a
     redeposit. 5 U.S.C. § 8334(d)(1). An “employee” is defined by regulation as (1)
     a person currently employed in a position subject to the civil service retirement
     law; or (2) a former employee (whose annuity has not been finally adjudicated)
     who retains civil service retirement annuity rights based on a separation from a
     position in which retirement deductions were properly withheld and remain (or
     have been redeposited in whole or in part). 5 C.F.R. § 831.112 (a)(1)-(2). It is
     undisputed that the appellant resigned from federal service in 1988, and has not
                                                                                            4

         returned to federal employment. IAF, Tab 8 at 15. He is therefore not entitled to
         make a deposit on the basis of current employment.
¶6            With respect to the second definition of an “employee,” the appellant argues
         that he is still eligible to make a deposit because he never received a complete
         refund of his retirement deductions. PFR File, Tab 1 at 4-5. Unless an employee
         is reemployed in a position subject to the civil service retirement system, receipt
         of a refund of retirement contributions voids all rights to redeposit those
         contributions.   Rint v. Office of Personnel Management, 48 M.S.P.R. 69, 72,
         aff’d, 950 F.2d 731 (Fed. Cir. 1991) (Table). The issue is therefore whether the
         appellant is actually in receipt of the refund, despite OPM’s error in failing to
         refund a minimal balance.
¶7            The applicable regulations provide that, upon application, an applicant is
         entitled to a refund “for the total lump-sum credit to his or her credit in the
         Retirement Fund.” 5 C.F.R. § 831.2002. The regulations do not provide for a
         partial refund with respect to separations such as that of the appellant. Id. Here,
         the appellant clearly requested and received a refund of his retirement
         contributions. We find no basis in the law for a finding that OPM’s error in
         calculating the amount of the refund entitles the appellant to make a redeposit.
         Because we find that the appellant is not entitled to make a redeposit, we also
         find that he is not entitled to a deferred annuity. 2 See Youngblood v. Office of
         Personnel Management, 108 M.S.P.R. 278, ¶ 12 (2008).
¶8            We also find that the appellant’s general arguments concerning equitable
         estoppel do not affect this result. See IAF, Tab 9 at 4-5; PFR File, Tab 1 at 4. In


     2
       OPM has indicated that it is prepared to issue the appellant a refund of the remaining
     balance of his retirement deductions ($46.11). IAF, Tab 8 at 4. If the appellant is not
     satisfied with the resolution with respect to the remaining balance, he must seek a final
     decision from OPM prior to any possible Board appeal regarding the balance. See
     McNeese v. Office of Personnel Management, 61 M.S.P.R. 70, 73-74 aff’d, 40 F.3d 1250
     (Fed. Cir. 1994) (Table).
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order to invoke equitable estoppel against a government agency, an appellant
must demonstrate affirmative misconduct on the part of government officials and
that he reasonably relied on that misrepresentation or misconduct to his
detriment. See Perez Peraza v. Office of Personnel Management, 114 M.S.P.R.
457, ¶ 9 (2010). The appellant has presented no such evidence.

                 NOTICE TO THE APPELLANT REGARDING
                    YOUR FURTHER REVIEW RIGHTS
     You have the right to request the United States Court of Appeals for the
Federal Circuit to review this final decision. 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, 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.
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     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.
