Vicente C. Escusa, Petitioner, v. Office of Personnel Management, Respondent, 62 F.3d 1431 (Fed. Cir. 1995)

ORDER

The Office of Personnel Management (OPM) moves for a 32-day extension of time to file its brief or a motion for a summary affirmance. OPM has now submitted a motion for summary affirmance of the Merit System Protection Board's decision holding that Vicente C. Escusa was not entitled to retirement benefits under the Civil Service Retirement Act (CSRA), 5 U.S.C. § 8331 et seq. Escusa has not responded.

Escusa was employed by the Department of the Navy in Subic Bay, Philippines from 1945 until 1949 and from 1954 until 1981. In 1986, Escusa applied for retirement benefits under the CSRA. OPM denied Escusa's application, and he appealed OPM's denial to the Board. The Administrative Judge (AJ) determined that although the nature of Escusa's service from 1945 until 1949 was unclear, it was not sufficient to confer annuity rights because it totaled less than the requisite five years of civilian service. The AJ also determined that Escusa's service from 1954 until 1981 was initially under an appointment limited to one year or less and thereafter under two indefinite appointments in the excepted service, all of which were specifically excluded from CSRA coverage pursuant to 5 C.F.R. Sec. 831.201(a) (1) and (a) (13). Thus, the AJ concluded that while Escusa had completed at least five years of creditable federal civilian employment in post-1954 service, he had not been employed in a position covered by the CSRA for at least one of the last two years of service. See 5 U.S.C. § 8333(b); 5 U.S.C. § 8347(g). Escusa petitioned this court for review.

This court stayed Escusa's petition for review pending our decision in Rosete v. OPM, no. 94-3342. In that case, Juanita Rosete argued that an "indefinite" appointment, such as hers, was not encompassed by the language of the statute that excluded only "temporary or intermittent" appointments. We held that OPM's regulation interpreting "temporary" as including indefinite appointments was "both reasonable and of long standing." Rosete v. Office of Personnel Management, 48 F.3d 514, 519 (Fed. Cir. 1995). Accordingly, we concluded that a federal retiree who had held an indefinite appointment in the excepted service did not have covered service within the meaning of the CSRA. Rosete, 48 F.3d at 520.

OPM argues that the Board's decision that Escusa was not entitled to retirement benefits should be summarily affirmed based on our holding in Rosete. Summary disposition of a case "is appropriate, inter alia, when the position of one party is so clearly correct as a matter of law that no substantial question regarding the outcome of the appeal exists." Joshua v. United States, 17 F.3d 378, 380 (Fed. Cir. 1994). In the present case, Rosete is dispositive only in regard to the AJ's determination that Escusa was not entitled to retirement benefits on the basis of his later service. From 1954 until 1981, Escusa served either under Rosete -like indefinite appointments or under a temporary appointment that was specifically excluded from CSRA coverage by statute. See 5 U.S.C. § 8347(g). Further, the Board found that there was no evidence that Escusa made contributions to the civil service retirement fund or that he was otherwise subject to the CSRA.

With regard to the AJ's determination that Escusa was not entitled to retirement benefits on the basis of his earlier service, we consider whether that determination may be summarily affirmed in accordance with our holding in Esteban v. Office of Personnel Management, 978 F.2d 700 (Fed. Cir. 1992). In Esteban, we stated that pursuant to 5 U.S.C. § 8333(b), an employee may not be divested of annuity rights where the employee on a prior separation from employment satisfied the eligibility requirements under the law in effect at that time. Esteban, 978 F.2d at 701. We noted that the 1942 Act provided for a deferred annuity at age 62 for employees having at least five years of service at the termination of their employment. Because Esteban failed to establish that she was eligible for an annuity under the 1942 Act at the time of her separations in 1946, 1947, and 1948, we held that she was not eligible for an annuity under the current CSRA. Escusa similarly failed to show that he was eligible for retirement benefits under the 1942 Act, because his employment from 1945 until 1949 did not meet the statutory requirement of five years. Thus, Esteban is dispositive of the AJ's determination that Escusa was not eligible for retirement benefits on the basis of his earlier service.

In his informal brief filed before the court decided Rosete, Escusa argues that the 1956 Act narrowed the permissible exclusions from coverage, because the Act used the terminology "temporary or intermittent" to describe the tenure of employment rather than the previous Act's use of "intermittent or of uncertain duration." However, we held in Rosete that the legislative history of 5 U.S.C. § 8347(g) shows that Congress did not contemplate any change in the categories of executive branch employees that could be excluded from CSRA coverage. Rosete, 48 F.3d at 518.

Accordingly,

IT IS ORDERED THAT:

(1) OPM's motion for an extension of time to file its motion for summary affirmance is granted.

(2) OPM's motion for summary affirmance is granted.

(3) Each side shall bear its own costs.