                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     RICARDO DOMINICO,                               DOCKET NUMBER
                  Appellant,                         SF-0831-14-0294-I-1

                  v.

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



                THIS FINAL ORDER IS NONPRECEDENTIAL *

           Rufus F. Nobles, I, Zambales, 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 agency’s determination that he was ineligible to receive an annuity
     under the Civil Service Retirement System (CSRS). Generally, we grant petitions
     such as this one only when: the initial decision contains erroneous findings of

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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     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).

                      DISCUSSION OF ARGUMENTS ON REVIEW
¶2         The appellant was employed by the Department of the Navy in the
     Philippines on various dates during the period from May 1976 to July 1992.
     Initial Appeal File (IAF), Tab 4 at 10. He applied for a deferred CSRS retirement
     annuity in 2013. Id. at 6-7. 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 Civil Service Retirement
     Act. IAF, Tab 7, Initial Decision (ID) at 3. The administrative judge reviewed
     applicable laws, regulations, and case law, applied them to the facts of the case,
     and 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 3-6.
¶3         On review, the appellant has not addressed the administrative judge’s legal
     reasoning, which we find to be correct. He instead contends that he is entitled to
     a CSRS retirement annuity based on the Office of Personnel Management’s
                                                                                     3

     regulation at 5 C.F.R. § 831.303(a). Petition for Review (PFR) File, Tab 1. This
     regulation provides as follows:
           Periods of creditable civilian service performed by an employee or
           Member after July 31, 1920, but before October 1, 1982, for which
           retirement deductions have not been taken shall be included in
           determining length of service to compute annuity under subchapter
           III of chapter 83 of title 5, United States Code; however, if the
           employee, Member, or survivor does not elect either to complete the
           deposit describes [sic] by section 8334(c) of title 5, United States
           Code, or to eliminate the service from annuity computation, his or
           her annuity is reduced by 10 percent of the amount which should
           have been deposited (plus interest) for the period of noncontributory
           service.
¶4        The appellant argues that, although his excepted appointment in 1980, was
     initially excluded from retirement coverage by 5 C.F.R. § 831.201(a)(13)
     (“nonpermanent appointments, designated as indefinite”), the promulgation of
     section 831.303(a) in August 1983, had the effect of converting him to a covered
     employee with a vested CSRS annuity. PFR File, Tab 1 at 3.
¶5        Section 831.303 is contained within Subpart C of part 831, which is entitled
     “Credit for Service.” Section 831.201, relied upon by the administrative judge, is
     contained within Subpart B of part 831, which is entitled “Coverage.”
     Section 831.303 thus deals with whether service is creditable, not whether service
     is covered. The regulations in Subpart B control whether service is covered. The
     administrative judge correctly determined that the appellant failed to establish
     that he had the requisite covered service.

                     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:
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                          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.
     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
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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.
