Rogelio R. Cabigting, Petitioner, v. Office of Personnel Management, Respondent, 61 F.3d 920 (Fed. Cir. 1995)

Rogelio P. Cabigting (Cabigting) petitions for review of the final decision of the Merit Systems Protection Board (board) in Docket No. SE-0831-94-0080-I-1. In an initial decision dated 3 March 1994, the administrative judge (AJ) affirmed the reconsideration decision of the Office of Personnel Management (OPM) denying Cabigting's application for retirement benefits under the Civil Service Retirement Act (CSRA). The 3 March initial decision became the final decision of the board on 15 June 1994 when the board denied Cabigting's petition for review. We affirm.

DISCUSSION

* Background

Cabigting was a civilian employee of the federal government at Clark Air Force Base in the Philippines for over twenty-five years--from 24 July 1966 to 1 November 1991, when the base was closed. He worked under a series of excepted appointments that were indefinite in duration. On 24 March 1993, Cabigting applied for retirement benefits under the CSRA.

II

Standard of Review

Title 5, section 7703, of the United States Code strictly limits and defines our review of board decisions. We must affirm the board's decision unless it is:

(1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law;

(2) obtained without procedures required by law, rule, or regulation having been followed; or

(3) unsupported by substantial evidence.

5 U.S.C. § 7703(c) (1994). Further, Cabigting has the burden of proving entitlement to retirement benefits. True v. Office of Personnel Management, 926 F.2d 1151, 1153 (Fed. Cir. 1991) (citing Cheeseman v. Office of Personnel Management, 791 F.2d 138, 141 (Fed. Cir. 1986), cert. denied, 479 U.S. 1037 (1987)).

III

Analysis

Cabigting argues that the OPM and the AJ wrongly applied 5 C.F.R. Sec. 831.201(a) (13)¹  to exclude from CSRA coverage his indefinite appointments in the excepted service. In particular, Cabigting asserts that "indefinite" appointments are not encompassed by the terminology "temporary or intermittent" in the 1956 Act.²  This identical argument was recently addressed in Rosete v. Office of Personnel Management, 48 F.3d 514, 518-19 (Fed. Cir. 1995) ("The MSPB ... correctly deferred to the agency's interpretation of the term 'temporary' as including indefinite appointments, i.e., appointments that are not permanent." Id. at 519), on facts similar to those present in the instant appeal. In fact, by Order dated 26 September 1994, this court granted OPM's motion to stay this case pending our decision in Rosete. After our decision in Rosete, this court, by Order dated 4 April 1995, lifted the stay and ordered OPM to file its brief in response to Cabigting's brief.

Based on Rosete, we find no reversible error in the board's holding that Cabigting does not qualify for retirement benefits under the CSRA.