                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     FLORENTINO A. FRONDA,                           DOCKET NUMBER
                   Appellant,                        SF-0831-16-0160-I-1

                  v.

     OFFICE OF PERSONNEL                             DATE: December 13, 2016
       MANAGEMENT,
                   Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL 1

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

           Karla W. Yeakle, 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 final decision of the Office of Personnel Management (OPM) finding
     that he was not entitled to make a service credit deposit to the Civil Service
     Retirement System (CSRS). Generally, we grant petitions such as this one only


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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     in the following 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 fa cts 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 petiti on 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 formerly was employed by the Department of the Navy in
     Subic     Bay,   Philippines   under   a   series   of   temporary   and   indefinite
     excepted-service appointments beginning on November 10, 1965, until he
     resigned on June 17, 1992.      Initial Appeal File (IAF), Tab 6 at 19-28.        On
     May 11, 2007, the appellant sent a letter to OPM requesting to make a deposit for
     civilian service credit. IAF, Tab 9 at 33-35. On November 5, 2015, OPM issued
     a final decision finding that he was not eligible to make a service deposit because
     he had never served in a covered position subject to the Civil Service Retirement
     Act (CSRA). IAF, Tab 6 at 5-8.
¶3           The appellant filed a Board appeal challenging OPM’s decision, but did not
     request a hearing.     IAF, Tab 1.     After issuing a close of record order and
     affording the parties an opportunity to submit additional evidence and argument,
     IAF, Tab 7, the administrative judge issued an initial decision affirming OPM’s
     final decision, IAF, Tab 11, Initial Decision (ID). The administrative judge found
     that the appellant was not eligible to make a service deposit under 5 U.S.C.
     § 8334 because he did not meet the definition of an employee under
                                                                                             3

     5 C.F.R. § 831.112(a). ID at 4-5. In particular, he found that it was undisputed
     that the appellant was not currently employed in a covered position because he
     had resigned in 1992. ID at 5. He also found that there was no evidence that any
     position the appellant ever held was covered by the CSRA because his Standard
     Forms 50 (SF-50) showed his retirement coverage as “none” or “other,” and the
     SF-50 documenting his resignation indicated that his service entitled him to a
     lump-sum payment under the Filipino Employment Personnel Instructions (FEPI).
     ID at 5-6. The administrative judge also rejected the appellant’s argument that,
     under 5 C.F.R. § 831.303(a), he was deemed to have made a deposit qualifying
     him for an annuity because to be entitled to a CSRS annuity an employee must
     have had covered service subject to the CSRA. ID at 6-7.
¶4         The appellant has filed a petition for review in which he reiterates his
     argument that 5 C.F.R. § 831.303(a) qualifies him to make a deposit or waive a
     deposit for his service prior to October 1, 1982. 2 Petition for Review (PFR) File,
     Tab 1. The agency has opposed the appellant’s petition. PFR File, Tab 4.
¶5         The administrative judge correctly set forth the well-established principles
     of law that preclude the appellant from making a deposit under CSRS.                  The
     appellant is not eligible for an annuity under CSRS because he has not served in a
     position covered by CSRS. See Encarnado v. Office of Personnel Management,
     116 M.S.P.R. 301, ¶¶ 7-8 (2011). His argument regarding the applicability of
     5 C.F.R. § 831.303(a) fails because it pertains to the computation of a CSRS
     annuity to which he is not entitled. Further, the appellant does not satisfy the
     definition of “employee” in 5 C.F.R. § 831.112, which sets forth those eligible to
     make a deposit to the Fund under 5 U.S.C. § 8334. See Dela Rosa v. Office of
     Personnel Management, 583 F.3d 762, 764-65 (Fed. Cir. 2009); Muyco v. Office
     of Personnel Management, 114 M.S.P.R. 694, ¶ 13 (2010).


     2
       In light of our decision, we need not address the timeliness of the appellant’s petition
     for review.
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¶6         Accordingly, we find that the administrative judge properly found that the
     appellant is not entitled to make a deposit.

                     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 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 and 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
                                                                                  5

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.
