Crisostomo Guerrero v. Office of Personnel Management

Merit Systems Protection Board

Crisostomo Guerrero v. Office of Personnel Management

Merit Systems Protection Board·Decided September 17, 2026·No. SF-0831-25-0005-I-1·Unpublished

Opinion

UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD

CRISOSTOMO F. GUERRERO, DOCKET NUMBER Appellant, SF-0831-25-0005-I-1

v.

OFFICE OF PERSONNEL DATE: September 17, 2026 MANAGEMENT, Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

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

Eva Ukkola , Jo A. Bell , and Tanisha Elliott , Washington, D.C., for the agency.

BEFORE

James J. Woodruff II, Chairman Henry J. Kerner, Vice Chairman

FINAL ORDER

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 application for an annuity under the Civil Service Retirement System (CSRS). In his petition for review and supplement, the appellant makes the

1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions.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).

following assertions: (1) his pre-October 1, 1982 civilian service should be covered under CSRS; (2) OPM’s denial of service credit based solely on the lack of retirement deductions or deposits violates 5 U.S.C. § 8334(c) and 5 C.F.R. § 831.303(a); (3) OPM’s failure to advise him of his CSRS eligibility and deposit rights constitutes a denial of due process and grounds for equitable relief; and (4) OPM’s denial of his application based on a U.S. Postal Service delivery failure warrants reversal. Petition for Review (PFR) File, Tabs 1, 3.

Generally, we grant petitions such as this one only 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 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. 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).

We have considered the appellant’s assertions on review, but none warrants a different outcome. To illustrate, the appellant asserts that 5 U.S.C. § 8334(c) and 5 C.F.R. § 831.303(a) allow him to make a deposit for his service prior to

October 1, 1982. 2 PFR File, Tab 1 at 3. He cites to the court’s decision in Lledo v. Office of Personnel Management, 886 F.3d 1211 (Fed. Cir. 2018), to support his assertion that OPM misinterpreted the term “covered service.” Id. In pertinent part, the appellant states that the court in Lledo “rejected OPM’s narrow interpretation of ‘covered’ service under CSRS,” and instead “held that [F]ederal civilian service in a lawful appointment that would have been subject to CSRS coverage but for OPM’s or the agency’s failure to withhold retirement deductions must still be credited.” Id. These assertions are not persuasive.

For example, the provision at 5 U.S.C. § 8334(c) states that each “employee . . . credited with civilian service after July 31, 1920, for which retirement deductions or deposits have not been made, may deposit with interest an amount equal to [certain] percentages of his basic pay received for that service.” However, the relevant regulation defines “employee” as, among other things, 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) in the Civil Service Retirement and Disability Fund.” 5 C.F.R. § 831.112(a). Thus, the regulation allows a former employee to make a deposit “only if that former employee is already covered by the CSRS.” Dela Rosa v. Office of Personnel Management, 583 F.3d 762, 765 (Fed. Cir. 2009). For the reasons stated in the initial decision, the appellant is not a former employee who was already covered by the CSRS and 5 U.S.C. § 8334(c) does not apply to him.

2 The appellant does not appear to challenge the administrative judge’s analysis regarding his service commencing on October 1, 1982. See, e.g., PFR File, Tab 1 at 2 (This appeal []challenges [OPM’s] denial of [CSRS] service credit to [F]ederal civilian service [that the appellant] performed [prior] to October 1, 1982.). We affirm the administrative judge’s analysis in the initial decision regarding the appellant’s service commencing on October 1, 1982.

Additionally, we disagree with the appellant’s characterization of the court’s decision in Lledo and the applicability of 5 C.F.R. § 831.303(a). Notably, the court affirmed the Board’s conclusion that Mr. Lledo’s employment was excluded from CSRS coverage and he was not entitled to CSRS benefits. Lledo, 886 F.3d at 1213-14. In pertinent part, the court considered Mr. Lledo’s focus on the time frame on and before September 30, 1982, and the provisions of 5 C.F.R. § 831.303(a). 3 Id. at 1214. The court rejected Mr. Lledo’s assertion that section 831.303(a) converted his creditable service into covered service, finding that “[section] 831.303(a) does not alter the definition of covered service[] or convert creditable service into covered service.” Id. Additionally, the court stated that Mr. Lledo’s creditable service between 1968 and September 30, 1982, was “not the relevant time period for the calculation of covered service” because the relevant period under 5 U.S.C. § 8333(b) was the last 2 years of his employment. Id. The court concluded that section 831.303(a) did not change the relevant time for which Mr. Lledo had to serve in a covered position or the fact that he did not serve in a covered position during the “critical time period” to receive a CSRS retirement annuity. Id.

Based on our review of Lledo, we are not persuaded that OPM misinterpreted the term “covered service” or that 5 C.F.R. § 831.303(a) applies to this matter. To the contrary, Lledo supports OPM’s position that the appellant is not entitled to a CSRS annuity because he did not have covered service. Even if we consider the 2 years before the appellant left Federal service—here, 1990 -92—he has not proven that he had covered service during this time frame. 4

3 This regulation permits an employee engaged in creditable civilian service before October 1, 1982, for which retirement deductions were not taken, to elect to make a deposit according to 5 U.S.C. § 8334(c) or to otherwise have his annuity reduced. Lledo, 886 F.3d at 1214. 4 Because the appellant did not have the requisite covered service, neither OPM nor his employing agency were obligated to inform him of the right to make a deposit or to otherwise claim CSRS coverage. PFR File, Tab 1 at 4.

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