                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     ANTONIO S. HOCSON,                              DOCKET NUMBER
                   Appellant,                        SF-0831-15-0462-I-1

                  v.

     OFFICE OF PERSONNEL                             DATE: January 7, 2016
       MANAGEMENT,
                   Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL 1

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

           Tynika Faison 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 the reconsideration decision of the Office of Personnel Management
     (OPM) denying his entitlement to a deferred annuity under 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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     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, 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 (Navy) as a
     Machinist at the Naval Ship Repair Facility in Subic Bay, Philippines. Initial
     Appeal File (IAF), Tab 6 at 42-43. He served under a series of excepted service
     appointments between July 1, 1976 and July 17, 1992, when he was terminated
     due to a reduction in force (RIF).      Id.   In 2013, the appellant applied for a
     deferred annuity under CSRS based on his service with the Navy. Id. at 44-45.
     In a subsequent letter, the appellant requested that OPM allow him to make a
     deposit into the Civil Service Retirement and Disability Fund (Fund). Id. at 35.
     OPM denied the appellant’s application, finding that he had not served in a
     position subject to the Civil Service Retirement Act (CSRA), and therefore,
     was not eligible to receive a CSRS annuity. Id. at 9. The appellant requested
     reconsideration, and OPM issued a reconsideration decision, again finding that
     the appellant was not entitled to an annuity. Id. at 6-8, 12-30.
                                                                                        3

¶3         The appellant appealed OPM’s reconsideration decision to the Board. IAF,
     Tab 1. He declined a hearing. Id. at 1. The administrative judge issued an initial
     decision affirming OPM’s reconsideration decision, finding that the appellant
     was not eligible for a CSRS annuity or to make a deposit into the Fund to obtain
     service credit because none of his service was covered by the CSRS.             IAF,
     Tab 10, Initial Decision (ID) at 5-6. The appellant has filed a petition for review
     of the initial decision, to which OPM has not responded. Petition for Review
     (PFR) File, Tab 1. 2
¶4         The appellant, as an applicant, bears the burden of proving his entitlement
     to an annuity. See Cheeseman v. Office of Personnel Management, 791 F.2d 138,
     140-41 (Fed. Cir. 1986).     To qualify for a civil service retirement annuity, a
     Government employee must complete at least 5 years of creditable service with at
     least 1 of the last 2 years of his Federal service in a “covered” position. 5 U.S.C.
     § 8333(a)-(b); Quiocson v. Office of Personnel Management, 490 F.3d 1358, 1360
     (Fed. Cir. 2007). Covered service includes only an appointment that is subject to
     the CSRA and for which an employee must deposit part of his pay into the Fund.
     Encarnado v. Office of Personnel Management, 116 M.S.P.R. 301, ¶ 7 (2011).
¶5         The administrative judge correctly found that the appellant failed to
     establish that he had any covered service. The record reflects that the appellant
     served in a series of appointments with not to exceed dates, the last of which was
     converted to an excepted indefinite appointment.        IAF, Tab 6 at 43.     These
     appointments do not constitute covered service because nonpermanent and
     indefinite   appointments   are   excluded   from   coverage    under   the   CSRA.


     2
      With his petition for review, the appellant submits an OPM information sheet, which
     he contends constitutes new evidence. PFR File, Tab 1 at 8-9. However, the OPM
     pamphlet is contained in the record below. IAF, Tab 8 at 16. Accordingly, it is not
     new evidence that would provide a basis to grant the appellant’s petition for review.
     See Meier v. Department of the Interior, 3 M.S.P.R. 247, 256 (1980) (finding that
     evidence that is already part of the record is not new).
                                                                                           4

     Encarnado; 116 M.S.P.R. 301, ¶ 8; 5 C.F.R. § 831.201(a).               Even if, as the
     administrative judge found, the appellant served in at least one permanent
     position with the Navy, 3 the record nevertheless reflects that he never served in a
     position covered under the CSRA and thus, he does not qualify for a CSRS
     annuity. ID at 4. The appellant does not contend, and there is no evidence to
     suggest, that retirement deductions ever were withheld from his pay.               IAF,
     Tabs 1, 6, 8; PFR File, Tab 1. This weighs against a finding that his service was
     covered    under    the   CSRA.        See    Arcinas    v.   Office    of   Personnel
     Management, 82 M.S.P.R. 603, ¶ 9 (1999). In addition, the Standard Form 50
     (SF-50) documenting the appellant’s termination designated his retirement plan as
     “other.” IAF, Tab 6 at 42. The Board has held that the reference to “other” or
     “none” in an applicant’s SF-50s means that the individual was not employed in a
     covered position. Espiritu v. Office of Personnel Management, 114 M.S.P.R. 192,
     ¶ 8 (2010), aff’d, 431 F. App’x 897 (Fed. Cir. 2011).             Finally, the SF-50
     documenting the appellant’s termination reflected that he was entitled to
     severance pay under the Filipino Employment Personnel Instructions (FEPI) plan.
     IAF, Tab 6 at 42. It is well settled that an applicant’s receipt of benefits under a
     non-CSRS plan—such as the FEPI plan—indicates that his service was not
     covered under the CSRA. Espiritu, 114 M.S.P.R. 192, ¶ 8.
¶6         On review, the appellant argues that he is entitled to an annuity for his
     pre-October 1982 service because, pursuant to 5 C.F.R. § 831.303(a), a deposit
     for this service was waived and thus is deemed to have been made. PFR File,
     Tab 1 at 1, 4-8. The appellant further argues that because a deposit was allegedly


     3
        The administrative judge appears to have relied upon the Standard Form 50
     documenting the appellant’s termination pursuant to the RIF, which reflects a tenure
     group status of “1-Permanent.” IAF, Tab 6 at 42; ID at 4. However, an employee’s
     tenure group status for purposes of determining his rights in a RIF is not determinative
     of the nature of his appointment or his eligibility for coverage under the CSRA. See
     De Jesus v. Office of Personnel Management, 63 M.S.P.R. 586, 593 (1994), aff’d,
     62 F.3d 1431 (Fed. Cir. 2009).
                                                                                           5

     waived for his pre-October 1982 service, he had the option to either make a
     deposit for his post-October 1982 service pursuant to 5 U.S.C. § 8334(c), or take
     a reduced annuity in lieu of making such a deposit. Id. at 1, 5-6.
¶7         The appellant’s arguments regarding 5 C.F.R. § 831.303(a) are unavailing.
     Section 831.303(a) applies to credit for service for purposes of computing “an
     annuity under subchapter III of chapter 83 of title 5,” and the appellant does not
     qualify for such an annuity because he does not have any covered service.
     See 5 C.F.R. § 831.303(a).        The regulation does not support the appellant’s
     assertion that he is deemed to have made a deposit qualifying him for an annuity
     where he is otherwise ineligible for an annuity due to his lack of covered service.
     Further, the appellant does not satisfy the definition of “employee” in 5 C.F.R.
     § 831.112, which is applicable here because it sets forth eligibility to make a
     deposit to the Fund under 5 U.S.C. § 8334, and his attempt to argue that this
     definition does not apply to him is unpersuasive. 4 PFR File, Tab 1 at 8; see Dela
     Rosa v. Office of Personnel Management, 583 F.3d 762, 764-65 (Fed. Cir. 2009)
     (finding that, to be entitled to make a deposit under 5 U.S.C. § 8334, a former
     employee    must    meet    the   definition   of   an   employee     under    5 C.F.R.
     § 831.112(a)(2), which requires that the former employee already be covered by
     the CSRS); Muyco v. Office of Personnel Management, 114 M.S.P.R. 694, ¶ 13
     (2010) (finding that an appellant was not entitled to               make a deposit


     4
       On review, the appellant argues that the Board lacks jurisdiction to adjudicate the
     issue of his eligibility to make a deposit for his service, because OPM did not address
     this issue in the reconsideration decision. PFR File, Tab 1 at 8. Generally, the Board
     has jurisdiction over retirement issues only once they have been the subject of an OPM
     reconsideration decision. Kilpatrick v. Office of Personnel Management, 94 M.S.P.R.
     609, ¶ 8 (2003). However, where, as here, OPM fails to adjudicate all the claims and
     issues before it when it issues the reconsideration decision, the Board has jurisdiction
     to consider the nonadjudicated claims and issues and may remand the case for
     OPM to complete a full review of the matter. Ott v. Office of Personnel Management,
     120 M.S.P.R. 453, ¶ 4 (2013). Because the appellant made clear that his goal in making
     a deposit was to receive a CSRS annuity and OPM addressed the issue of his
     entitlement to a CSRS annuity, we need not remand the appeal. IAF, Tab 6 at 35.
                                                                                  6

under 5 C.F.R. § 831.112(a)(2) when he did serve in a position subject to CSRS
retirement contributions). We therefore affirm the initial decision finding that the
appellant is not entitled to an annuity, and is not eligible to make a deposit to
the Fund.

                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 U.S. 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 U.S. 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
                                                                                 7

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.
