Jose Reboja v. Office of Personnel Management

Opinion

UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD

JOSE REBOJA, DOCKET NUMBER Appellant, SF-0831-24-0657-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THIS FINAL ORDER IS NONPRECEDENTIAL 1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 , Angerlia D. Johnson , and Carla Robinson , 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). On petition for review, the appellant asserts that OPM erred by

1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future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

failing to properly consider the effect of 5 C.F.R. § 831.303(a) upon his claim for a deferred annuity. Petition for Review (PFR) File, Tab 1 at 1. 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. 2 5 C.F.R. § 1201.113(b).

The appellant asserts on review, among other things, that 5 C.F.R. § 831.303(a) allows an individual who did not make contributions to the Civil Service Retirement and Disability Fund to have deductions taken from his annuity “to excuse the failure to make deposits into the CSRS.” PFR File, Tab 1 at 1. He also asserts that he was “always in a covered CSRS position.” Id. He further asserts that the U.S. Court of Appeals for the Federal Circuit, in Lledo v. Office of Personnel Management, 886 F.3d 1211 (Fed. Cir. 2018), “rejected OPM’s narrow interpretation of ‘covered’ service under CSRS,” and instead “held

2 The initial decision stated that it would become final on March 14, 2025, unless a petition for review was filed by that date. Initial Appeal File, Tab 12 at 8. The appellant’s petition for review is dated June 18, 2025, more than 3 months after the finality date. PFR File, Tab 1 at 1. The appellant asserts that he received the initial decision on May 19, 2025, and he filed his petition within 30 days of such receipt. Id. at 3-4. Because we affirm the initial decision and OPM’s reconsideration decision herein, we need not address the timeliness of the appellant’s petition.

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that Federal 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. at 3. These assertions are not persuasive.

To qualify for a CSRS annuity, an employee (1) must complete at least 5 years of civilian service, and (2) must have served at least 1 of his last 2 years of Federal service in a “covered position—i.e., service that is subject to the Civil Service Retirement Act.” Lledo, 886 F.3d at 1213; see 5 U.S.C. § 8333(a)-(b). Almost all Federal civilian service is creditable service, but “covered service is a narrower subset of [F]ederal service.” Lledo, 886 F.3d at 1213. Indeed, covered service refers to the status of Federal employees who are subject to the CSRS and are thus required to deposit part of their basic pay into the Civil Service Retirement and Disability Fund. Encarnado v. Office of Personnel Management, 116 M.S.P.R. 301, ¶ 7 (2011). Temporary, intermittent, term, and excepted indefinite appointments are not covered positions. Lledo, 886 F.3d at 1213 (citing 5 C.F.R. § 831.201(a)). The appellant bears the burden to prove entitlement to CSRS benefits by preponderant evidence. Cheeseman v. Office of Personnel Management, 791 F.2d 138, 140–41 (Fed. Cir. 1986).

We disagree with the appellant’s assertion that 5 C.F.R. § 831.303(a) is applicable. Notably, the regulation permits an employee engaged in creditable civilian service before October 1, 1982, for which retirement deductions were not

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taken, to elect to make a deposit according to 5 U.S.C. § 8334(c) 3 or to otherwise have his annuity reduced. Lledo, 886 F.3d at 1214. In Lledo, the court affirmed the Board’s conclusion that Mr. Lledo’s employment was excluded from Civil Service Retirement and Disability Fund coverage and he was not entitled to CSRS benefits. Id. at 1213-14. In pertinent part, the court rejected Mr. Lledo’s reliance on section 831.303(a) to support his assertion that an employee who engaged in creditable service prior to October 1, 1982, was “deemed engaged in covered service and eligible for CSRS benefits”; instead, the court held that “[section] 831.303(a) does not alter the definition of covered service[] or convert creditable service into covered service.” Id. at 1214.

Based on our review of Lledo, we are not persuaded that OPM erred or that 5 C.F.R. § 831.303(a) warrants a different outcome. To the contrary, the decision in Lledo supports OPM’s position that the appellant is not entitled to a CSRS annuity because he did not have any covered service. See, e.g., Rosete v. Office of Personnel Management, 48 F.3d 514, 520 (Fed. Cir. 1995) (explaining that references to “none” or “other” in an applicant’s Standard Form 50s reflect a lack of civil service retirement coverage); Encarnado, 116 M.S.P.R. 301, ¶ 8 (stating that service in an indefinite appointment is not covered service because such appointments have consistently been excluded from CSRS retirement coverage). We have considered the appellant’s remaining assertions, including that

3 The statutory 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). The appellant is not such a former employee, and he is therefore not eligible to make a deposit.

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OPM made misleading statements and was estopped from denying his application for a CSRS annuity, but a different outcome is not warranted. PFR File, Tab 1 at 2-3.

NOTICE OF APPEAL RIGHTS 4 You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum.

Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information.

(1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(A).

4 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter.

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If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address:

U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439

Additional information about the U.S. Court of Appeals for the Federal Circuit 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, 10, 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 Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case.

(2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision—including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems Protection Board, 582 U.S. 420 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on

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race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court-appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a.

Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below:

http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision.

If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is:

Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960

Washington, D.C. 20013

If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to:

Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E.

Suite 5SW12G

Washington, D.C. 20507

(3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or

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other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction. 5 The court of appeals must receive your petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(B).

If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address:

U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439

Additional information about the U.S. Court of Appeals for the Federal Circuit 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, 10, 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 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195, 132 Stat. 1510.

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Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case.

Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below:

http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .

FOR THE BOARD: ______________________________ Gina K. Grippando Clerk of the Board

Washington, D.C.