Salvador S. Aguilar, Petitioner, v. Office of Personnel Management, Respondent, 937 F.2d 623 (Fed. Cir. 1991)

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U.S. Court of Appeals for the Federal Circuit - 937 F.2d 623 (Fed. Cir. 1991) June 6, 1991

Before ARCHER, MAYER and CLEVENGER, Circuit Judges.



This is an appeal from a decision of the Merit Systems Protection Board, No. SE08319010372 (Nov. 20, 1990), denying Salvador S. Aguilar's petition for review of, and making final, the Initial Decision of the Administrative Judge, dated July 31, 1990, which held that petitioner had not earned the required Civil Service credit to entitle him to a retirement annuity. We affirm.


Before the Administrative Judge, Aguilar contended that he had been engaged in creditable service in 1934 and 1935, which, when coupled with subsequent periods of conceded creditable service, would have proved more than the minimum requirement of five years of creditable service. The Administrative Judge, however, expressly found that " [h]is claim of employment in 1934 and 1935 was not specific, failed to identify any specific authority for his appointment, and was unsupported by any documentation or other proof." The Administrative Judge therefore affirmed the agency determination that Aguilar had failed to demonstrate entitlement to a Civil Service annuity.

After the close of the record, on petition for review to the full Board, Aguilar for the first time raised the issue of whether he had evidence to support his claim of creditable service in 1934 and 1935. He did not, however, make any showing to the full board that his proffered evidence was, despite due diligence, not available when the record closed, as is required by 5 C.F.R. Sec. 1201.115(c) (1) in order for the Board to have granted Aguilar's petition for review. The full Board therefore did not err in denying Aguilar's petition for review.

On appeal here, Aguilar again contends that he can produce documentation to demonstrate creditable service performed in 1934 and 1935. He does not contend that such documentation was unavailable when the record closed. Our precedent precludes us from considering Aguilar's contention. " 'Where petitioner fails to frame an issue before the presiding official and belatedly attempts to raise that same issue before the full board, and the board properly denies review of the initial decision, petitioner will not be heard for the first time on that issue in the Federal Circuit.' " Wallace v. Department of the Air Force, 879 F.2d 829, 832 (Fed. Cir. 1989) (quoting Meglio v. Merit Sys. Prot. Bd., 758 F.2d 1576, 1577 (Fed. Cir. 1985)).