Francisco Dado, Petitioner, v. Office of Personnel Management, Respondent, 949 F.2d 403 (Fed. Cir. 1991)

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US Court of Appeals for the Federal Circuit - 949 F.2d 403 (Fed. Cir. 1991) Oct. 15, 1991

Before MICHEL, Circuit Judge, BENNETT, Senior Circuit Judge, and PLAGER, Circuit Judge.



Francisco Dado applied to the Office of Personnel Management (OPM) for Civil Service Retirement Act (CSRA) annuity benefits. The OPM denied his application after concluding that Dado's employment was not at any time covered by the CSRA, and that Dado simply was ineligible for the benefits. Dado appealed to the Merit Systems Protection Board (MSPB), which affirmed the OPM decision. Dado appeals to this court. We must affirm.


The MSPB agreed with the OPM that the evidence of record clearly established that Dado's positions of employment were all in excepted service, and not covered by CSRA benefits. In further support of this conclusion, the MSPB noted that no civil service retirement deductions had ever been withheld from Dado's wages. The MSPB therefore held that Dado was ineligible for a CSRA retirement annuity. Dado did not then, and does not now, point to any evidence which would lead to a contrary conclusion.

The legal standard by which the Federal Circuit reviews decisions of the MSPB is that a decision must be affirmed unless it is found to be:

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.

See 5 U.S.C. § 7703. On the record before us, we are left with no choice--the decision of the MSPB must be affirmed.