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Luna v. Office of Personnel Management

United States Court of Appeals for the Federal Circuit


November 5, 1999

MARCELO M. LUNA PETITIONER,
V.
OFFICE OF PERSONNEL MANAGEMENT, RESPONDENT

Before Mayer, Chief Judge, Lourie and Rader, Circuit Judges.

The opinion of the court was delivered by: Per Curiam

NOTE: Pursuant to Fed. Cir. R. 47.6, this Disposition is not citable as precedent. It is a public record. The Disposition will appear in tables published periodically.

DECISION

Marcelo M. Luna appeals from the final decision of the Merit Systems Protection Board affirming the Office of Personnel Management's ("OPM's") denial of his application for a retirement annuity under the Civil Service Retirement Act ("CSRA"). See Luna v. Office of Personnel Management, No. SE-0831-98-0260-I-1 (Feb. 11, 1999). Because Luna has not shown that the Board erred in affirming the OPM's decision, we affirm.

DISCUSSION

Mr. Luna performed civilian duties for the United States Air Force between April 27, 1955 and February 1998 at Clark Air Force Base in the Philippines. See Luna v. Office of Personnel Management, No. SE-0831-98-0260-I-1, slip op. at 2 (Sept. 4, 1998). All of Luna's service was under a series of indefinite and temporary appointments, none of which exceeded one year. See id. at 2-3. Based on this employment history, the OPM denied Luna's application for a retirement annuity.

Luna appealed the OPM's decision to the Board, and the administrative Judge ("AJ") affirmed. The AJ held that none of Luna's service under the indefinite and temporary appointments was covered under the CSRA,*fn1 because it was specifically excluded by 5 C.F.R. § 831.201(a)(1), (13).*fn2 See id. at 3. As none of his service was covered, the AJ concluded that Luna failed to satisfy the service requirements for entitlement to a retirement annuity set forth in 5 U.S.C. § 8333. See id. The AJ also noted that the personnel forms documenting Luna's service indicate that either his service was not subject to the CSRA (explicitly, or by the appropriate box being left blank) or that his service was subject to some system other than the CSRS. See slip op. at 3. Moreover, the Board observed that none of these forms or any other documents in the record indicated that Luna's employer withheld CSRS retirement contributions from his salary. See id.

The initial decision became final upon the Board's denial of Luna's petition for review. See C.F.R. § 1201.113(b) (1997). Luna appealed to this court. We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(9) (1994).

We may reverse a decision of the Board only if it was 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(c) (1994); Cheeseman v. Office of Personnel Management, 791 F.2d 138, 140 (Fed. Cir. 1986).

Luna points to no specific error in the Board's decision, but instead requests that we determine anew whether he was entitled to a retirement annuity. We agree with the government, however, that the Board properly held that Luna was not entitled to an annuity under the CSRA. The controlling regulation, 5 C.F.R. § 831.201(a)(1), (13), plainly indicates that Luna's indefinite and temporary appointments are excluded from coverage under the CSRA, and thus that Luna failed to satisfy the service requirements for entitlement to a retirement annuity set forth in 5 U.S.C. § 8333. Accordingly, the Board properly affirmed the OPM's denial of Luna's annuity application. We therefore affirm.


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