Roberto C. Estiobar, Petitioner, v. Office of Personnel Management, Respondent, 854 F.2d 1327 (Fed. Cir. 1988)

DECISION

The final decision of the Merit Systems Protection Board (board), No. SE08318610364, affirming Office of Personnel Management's (OPM's) decision denying Roberto C. Estiobar a civil service retirement annuity, is affirmed on different grounds.

OPINION

Estiobar is eligible for a retirement annuity only if, within the last two years before his separation from federal service, he worked at least one year in a position subject to the Civil Service Retirement Act (Act). Herrera v. United States, No. 87-1542, slip op. at 2-3 (Fed. Cir. June 21, 1988); 5 U.S.C. § 8333(b). As Estiobar acknowledges, his final two years of federal employment were in an excepted indefinite appointment not subject to the Act. Vicente v. United States, 1 Cl.Ct. 299, 301 (1982); Daniel v. Office of Personnel Management, 28 M.S.P.R. 10, 12 (1984). Estiobar offers no evidence to support his allegation that his employer negligently deprived him of coverage under the Act during that period. See Vicente, 1 Cl.Ct. at 301. OPM correctly concluded, therefore, that under 5 U.S.C. § 8333(b) Estiobar is ineligible for a civil service retirement annuity.

We affirm the board's decision because we do not find it arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law, or obtained without procedures required by law, rule, or regulation having been followed, or unsupported by substantial evidence. 5 U.S.C. § 7703(c) (1982); see Cheeseman v. Office of Personnel Management, 791 F.2d 138, 140 (Fed. Cir. 1986), cert. denied, 107 S. Ct. 891 (1987).