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Omana v. Office of Personnel Management

United States Court of Appeals for the Federal Circuit


October 13, 1999

RODOLFO C. OMANA,
v.
OFFICE OF PERSONNEL MANAGEMENT, RESPONDENT.

Before Newman, Rader, and Schall, Circuit Judges.

The opinion of the court was delivered by: Per Curiam.

DECISION

Rodolfo C. Omana petitions for review of the Merit Systems Protection Board's (Board's) final decision that affirmed the Office of Personnel Management's (OPM's) denial of his request for an annuity under the Civil Service Retirement Act (CSRA), 5 U.S.C. § 8331 et. seq. See Omana v. Office of Personnel Management, No. SE-0831-98-0172-I-1 (March 4, 1999). The August 4, 1998 initial decision of the administrative Judge became the final decision of the Board on March 4, 1999, when the Board denied Mr. Omana's petition for review for failure to meet the criteria for review set forth in 5 C.F.R. § 1201.115. We affirm.

DISCUSSION

I.

Mr. Omana worked with the United States Navy as a civilian employee at Subic Bay in the Philippines from June 21, 1951, until December 8, 1989. Although no documentation shows the nature of his service from June 21, 1951 through April 30, 1959, the record indicates a service computation date of June 21, 1951. Mr. Omana served under an indefinite appointment in the excepted service from May 1, 1959 until his retirement on December 8, 1989. It is undisputed that no retirement contributions were ever deducted from Mr. Omana's pay.

On February 5, 1993, Mr. Omana applied for a retirement annuity in connection with his service. OPM denied the application, however, because it determined that Mr. Omana's service under an excepted, indefinite appointment was excluded from Civil Service Retirement coverage under 5 C.F.R. § 831.201(a)(12) and (a)(13). Mr. Omana appealed to the Board, which affirmed the denial.

Addressing first the period from June 21, 1951 through April 30, 1959, the Board concluded that Mr. Omana's employment during this period was not covered by the Civil Service Retirement System (CSRS). The Board noted that Executive Order 10,180, which was in force on June 21, 1951, provided, subject to certain exceptions, that "all appointments in the executive branch of the Government shall be made on a nonpermanent basis." See Exec. Order No. 10,180, sec. 1, 15 Fed Reg. 7745 (1950). The Board observed that such nonpermanent appointments were excluded from the CSRS. See id., sec. 3. The Board further observed that there was no evidence that retirement deductions were ever taken from Mr. Omana's pay under the 1951 appointment. Under these circumstances, the Board reasoned, Mr. Omana had failed to establish CSRS coverage.

As far as the period from May 1, 1959 to December 8, 1989 was concerned, the Board noted that Mr. Omana's service during this period was specifically designated as "indefinite." The Board pointed out that "service under such appointments is not covered by the CSRS," citing Rosete v. Office of Personnel Management, 48 F.3d 514 (Fed. Cir. 1995). The Board also pointed out that no retirement deductions were taken from Mr. Omana's pay under the 1959 appointment. Accordingly, the Board rejected Mr. Omana's claim of entitlement to an annuity based upon his employment with the Navy from 1959 to 1989.

II.

Our scope of review in an appeal from a decision of the Board is limited. Specifically, we must affirm the Board's decision unless we find it to be arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; obtained without procedures required by law, rule, or regulation having been followed; or unsupported by substantial evidence. See 5 U.S.C. § 7703; Hayes v. Department of the Navy, 727 F.2d 1535, 1537 (Fed. Cir. 1984). Mr. Omana has the burden of demonstrating his entitlement to annuity benefits. See Cheeseman v. Office of Personnel Management, 791 F.2d 138, 141 (Fed. Cir. 1986).

The statute governing eligibility for an annuity provides, in pertinent part, as follows:

§ 8333. Eligibility for annuity

(a) An employee must complete at least 5 years of civilian service before he is eligible for an annuity under this subchapter.

(b) An employee or Member must complete, within the last 2 years before any separation from service, except a separation because of death or disability, at least 1 year of creditable civilian service during which he is subject to this subchapter before he or his survivors are eligible for annuity under this subchapter based on the separation . . . . 5 U.S.C. § 8333.

Mr. Omana is barred from receiving an annuity under 5 U.S.C. § 8333 because, although he had many years of "creditable civilian service," none of the service was covered service under the CSRA. See Rosete, 48 F.3d at 516 ("Covered service only includes an appointment that is subject to the CSRA and for which an employee must deposit part of his or her pay into the Civil Service Retirement and Disability Fund."). Faced with this obstacle, Mr. Omana makes two arguments, neither of which has merit.

First, he argues that Executive Order 9154 indicates that he has retirement coverage. We note at the outset that Mr. Omana failed to raise this issue before the Board, thus, it is not properly before us. See Oshiver v. OPM, 896 F.2d 540, 542 (Fed. Cir. 1990) (recognizing that the Federal Circuit should refrain from addressing issues not presented to the Board). We nevertheless address this argument.

The Executive Order states:

1. Employees in the following classifications of Federal personnel in the Executive Branch of the Government are hereby excluded from the operation of the said Retirement Act, unless eligible for retirement benefits by continuity of service, by reinstatement, or otherwise:

(i) Employees serving under temporary appointments pending final determination of their eligibility for permanent or indefinite appointment. . . . Exec. Order No. 9154, 7 Fed. Reg. 3275 (1942) (emphasis added).

Mr. Omana appears to argue that because this section does not exclude employees whose eligibility for permanent or indefinite appointment already has been determined, those employees are entitled to retirement coverage. The Executive Order, however, merely specifies categories of employees that are excluded from retirement coverage. No language in the order confers coverage upon any category of employees. Executive Order 9154 is of no help to Mr. Omana.

Mr. Omana's second argument is that he served in a covered position from June 21, 1951 through April 30, 1959. The evidence before the Board simply categorized the action on June 21, 1951 as an "appointment." As the Board noted, at the time of Mr. Omana's appointment in 1951, Executive Order 10,180 was in force, stating in Section 1 that, in general, "all appointments in the executive branch of the Government shall be made on a nonpermanent basis." Exec. Order No. 10,180, sec. 1, 15 Fed. Reg. 7745 (1950). The order, in Section 3, indicated that these nonpermanent appointments were excluded from retirement coverage. See id., sec. 3. Thus, Mr. Omana most likely had a nonpermanent appointment, excluding him from retirement coverage. Subsequent executive orders failed to confer retirement coverage upon employees such as Mr. Omana. See Exec. Order No. 10,577, 19 Fed. Reg. 7521 (1954). Additionally, as the Board again noted, Mr. Omana presented no evidence that he was subject to retirement deductions during this period, which weighs against retirement coverage. See Lorica v. Office of Personnel Management, 63 M.S.P.R. 253, 256 (1994), aff'd 66 F.3d 346 (Fed. Cir. 1995) (unpublished table decision). We see no error in the Board's determination that Mr. Omana failed to prove that he served in a covered position from June 21, 1951 through April 30, 1959.

For the foregoing reasons, the final decision of the Board sustaining the OPM's denial of Mr. Omana's request for annuity benefits is affirmed.

Each party shall bear its own costs.

19991013

© 1999 VersusLaw Inc.



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