                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     ANACLETO C. BALDUEZA,                           DOCKET NUMBER
                  Appellant,                         SF-0831-14-0141-I-1

                  v.

     OFFICE OF PERSONNEL                             DATE: August 20, 2014
       MANAGEMENT,
                   Agency.



                THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Fe M. Peregrino, Acala, Pangasinan, 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 Office of Personnel Management’s (OPM’s) reconsideration decision
     denying his application for a retirement annuity. Generally, we grant petitions
     such as this one only when: the initial decision contains erroneous findings of

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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     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 began his employment with the Navy’s Subic Bay Naval Ship
     Repair Facility in the Philippines in 1961. Initial Appeal File (IAF), Tab 1 at 5,
     7. He was given an excepted appointment, effective December 27, 1965, to the
     position of Machinist (Marine) (Limited), which was not to exceed December 26,
     1966. IAF, Tab 5 at 17. The appellant had continuous service with the Navy
     from 1961 until his retirement from the position of Marine Machinery Mechanic
     Foreman II, effective May 20, 1992. IAF, Tab 1 at 6-7, Tab 5 at 16; Petition for
     Review (PFR) File, Tab 1 at 18.
¶3         The appellant applied for a Civil Service Retirement System (CSRS)
     deferred annuity on April 15, 2013.        IAF, Tab 5 at 12-15.       OPM issued a
     reconsideration decision, dated August 5, 2013, finding the appellant ineligible
     for a retirement annuity under CSRS. IAF, Tab 5 at 10. OPM informed the
                                                                                              3

     appellant of his Board appeal rights. Id. He filed an appeal. 2 IAF, Tab 1 at 2-3.
     Because the appellant did not request a hearing, the administrative judge issued
     an order closing the record on March 6, 2014. IAF, Tab 6 at 3. After providing
     the parties with the opportunity to provide evidence and argument regarding the
     appellant’s claim, the administrative judge issued an initial decision finding that
     the appellant never occupied a position covered by the Civil Service Retirement
     Act (CSRA). ID at 4.
¶4         The appellant has filed a timely petition for review. PFR File, Tab 1. The
     agency has responded in opposition to the petition for review. PFR File, Tab 4.

     The appellant’s positions were not covered under the CSRA.
¶5         The appellant bears the burden of proving his entitlement to an annuity by
     preponderant       evidence.          Fredeluces       v.    Office      of    Personnel
     Management, 57 M.S.P.R. 598, 601, aff’d, 16 F.3d 421 (Fed. Cir. 1993) (Table).
     Two types of federal service are pertinent to determine whether an individual is
     entitled to a retirement annuity under the CSRA, “creditable service” and “covered
     service.” Noveloso v. Office of Personnel Management, 45 M.S.P.R. 321, 323
     (1990), aff’d, 925 F.2d 1478 (Fed. Cir. 1991) (Table). Almost all federal service is
     creditable service. Id. Covered service is more limited in scope, referring to
     federal employees who are “subject to” the CSRA, i.e., employees who must
     deposit part of their basic pay into the Civil Service Retirement and Disability
     Fund. Id. To qualify for a civil service retirement annuity, an employee must
     complete at least 5 years of creditable civilian service and must have served at




     2
       The appellant mailed his appeal to OPM on a date not reflected in the record. IAF,
     Tab 1. The administrative judge found that because the appellant signed his appeal on
     August 23, 2013, and due to the significant delays in mailing between the Philippines
     and the United States, to the extent the appeal was untimely filed, the deadline for filing
     was waived for good cause shown. IAF, Tab 8, Initial Decision (ID) at 2-3 n.1. Neither
     party has challenged this finding on review, and we see no reason to disturb it.
                                                                                            4

     least 1 of his last 2 years of federal service in a covered position. 3 Id. at 324;
     see 5 U.S.C. § 8333(a)-(b).
¶6         Temporary, intermittent, term, and excepted indefinite appointments have
     been excluded from CSRS coverage. 5 C.F.R. § 831.201(a)(1), (2), (6), (13),
     (14); see also Rosete v. Office of Personnel Management, 48 F.3d 514, 519 (Fed.
     Cir. 1995) (upholding the regulatory exclusion of indefinite appointments from
     CSRS coverage); De Jesus v. Office of Personnel Management, 63 M.S.P.R.
     586, 590-93 (1994) (under 5 U.S.C. § 8347(g), OPM can exclude from CSRA
     coverage temporary, intermittent, and indefinite employees), aff’d, 62 F.3d 1431
     (Fed. Cir. 1995) (Table).
¶7         The appellant argues in his petition for review that the Navy is a
     government agency, all hired employees are registered by the Civil Service
     Commission, and that he is covered by the CSRS. See PFR File, Tab 1 at 2-3.
     The appellant submits numerous documents with his petition for review. Id. at
     10-30. The Board generally will not consider evidence submitted for the first
     time with the petition for review absent a showing that it was unavailable before
     the record was closed despite due diligence.               Davis v. Department of
     Commerce, 120 M.S.P.R. 34, ¶ 16 (2013) (citing 5 C.F.R. § 1201.115).                The
     appellant has not made such a showing, and therefore we decline to consider the
     documents he submits for the first time on review.
¶8         We agree with the administrative judge that the appellant’s position as a
     Machinist (Marine) (Limited), which was an excepted appointment not to exceed


     3
       Although not entirely clear, the appellant appears to argue on petition for review that
     he is entitled to a deferred CSRS annuity. See PFR File, Tab 1 at 2-3; see also McKay
     v. U.S. Postal Service, 84 M.S.P.R. 152, ¶ 7 (1999) (the Board reads pro se appellant’s
     pleadings liberally). However, to be eligible for a deferred annuity under 5 U.S.C.
     § 8338(a), the appellant would still need to be “[a]n 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, 765 (Fed. Cir. 2009) (a former employee can make a deposit for a
     deferred annuity under 5 U.S.C. § 8334(c) only if he is already covered by the CSRS).
                                                                                           5

     1 year, was excluded from the CSRA. ID at 2-4. As to the appellant’s remaining
     period of service, the Standard Form (SF) 50s provided reflect a status of “5” or
     “Other” for retirement coverage and an annuity indicator of “9” or “Not
     Applicable.” 4 IAF, Tab 1 at 6, Tab 5 at 16. The appellant’s final SF-50 reflects
     that he retired under the authority of the Filipino Employment Personnel
     Instruction (FEPI). IAF, Tab 5 at 16; ID at 2. The Federal Circuit has indicated
     that the reference to “Other” or no retirement coverage on an appellant’s SF-50s
     means that the individual was not employed in covered service. Espiritu v. Office
     of Personnel Management, 114 M.S.P.R. 192, ¶ 8 (2010) (citing Rosete, 48 F.3d
     at 520), aff’d, 431 F. App’x 897 (Fed. Cir. 2011). There is no evidence that the
     appellant was ever employed in covered service; rather, the record shows that he
     performed service that was excluded from coverage under the CSRA.                   The
     appellant’s SF-50s indicate that he was entitled to retirement pay under the FEPI.
     IAF, Tab 1 at 6, Tab 5 at 16. Our reviewing court has previously held that receipt
     of benefits under a non-CSRS plan, such as FEPI, indicates that an appellant’s
     service is not covered under the CSRS.            Quiocson v. Office of Personnel
     Management, 490 F.3d 1358, 1360 (Fed. Cir. 2007). Therefore, the appellant is
     not eligible for a CSRS annuity. Thus, we agree with the administrative judge’s
     finding that the appellant was never subject to the CSRA.
¶9         The appellant stated in his petition for review that he has suffered for 22
     years from chronic diseases he acquired during employment with the Navy and
     that he did not receive any compensation or pension. See PFR File, Tab 1 at 4.
     Further, he requested “humanitarian help” for his medical conditions.           See id.


     4
       The appellant’s SF-50s reflect a tenure group status of “1-Permanent.” IAF, Tab 1 at
     6, Tab 5 at 16. However, in the absence of any evidence that the appellant’s personnel
     records are incomplete, we decline to consider this secondary evidence regarding the
     status of his employment. Pagtakhan v. Office of Personnel Management, 43 M.S.P.R.
     75, 77 (1989); see De Jesus, 63 M.S.P.R. at 593 (tenure group status for the purposes of
     determining an employee’s rights in a possible reduction in force is not determinative
     of an employee’s appointment or retirement rights).
                                                                                      6

      Although the Board is sympathetic to the appellant’s situation, the Board does not
      have jurisdiction over all actions that are alleged to be incorrect.    Preece v.
      Department of the Army, 50 M.S.P.R. 222, 226 (1991). The Board’s jurisdiction
      is not plenary; it is limited to those matters over which it has been given
      jurisdiction by law, rule, or regulation.     Maddox v. Merit Systems Protection
      Board, 759 F.2d 9, 10 (Fed. Cir. 1985).         The determination of whether an
      individual suffers from a medical condition that is compensable under the Federal
      Employees’ Compensation Act is within the exclusive purview of Office of
      Workers’ Compensation Programs (subject to review by the Employees
      Compensation Appeals Board), and neither the employing agency nor the Board
      has the authority to make such a determination.         Simonton v. U.S. Postal
      Service, 85 M.S.P.R. 189, 192, ¶ 11 (2000).
¶10         We agree with the administrative judge that the appellant has not
      demonstrated that he completed 5 years of qualified civilian service ending with
      at least 1 out of the last 2 years in a position covered by the CSRA. Thus, the
      initial decision is affirmed.

                       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
                                                                                  7

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
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.
