Ramon D. Daquinag Petitioner, v. Office of Personnel Management, Respondent, 64 F.3d 672 (Fed. Cir. 1995)

The Office of Personnel Management (OPM) moves for summary affirmance of the Merit System Protection Board's decision holding that Ramon D. Daquinag was not entitled to retirement benefits under the Civil Service Retirement Act (CSRA), 5 U.S.C. § 8331 et seq. We treat OPM's motion as a motion for leave to file an overlong motion. We treat Daquinag's submission entitled "Informal Reply" as a motion for leave to supplement his informal brief.

Daquinag was employed by the Department of the Navy in Subic Bay, Philippines from 1962 until 1966 and from 1969 until 1992. In 1992, Daquinag retired due to disability, and he applied for retirement benefits under the CSRA. OPM denied Daquinag's application, and he appealed OPM's denial to the Board. The Administrative Judge (AJ) determined that Daquinag had served under a series of temporary or excepted, indefinite appointments that were specifically excluded from CSRA coverage pursuant to 5 C.F.R. Sec. 831.201(a) (12)-(13). Thus, the AJ determined that while Daquinag had completed at least five years of creditable federal civilian employment, he had not been employed in a position covered by the CSRA. See 5 U.S.C. § 8333(b); 5 U.S.C. § 8347(g). Daquinag petitioned this court for review.

This court stayed Daquinag'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, 48 F.3d at 519. 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 Daquinag was not entitled to retirement benefits should be summarily affirmed based on our holding in Rosete. We agree. 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, it is clear that Rosete is dispositive and that summary disposition is warranted. Daquinag served either under Rosete-like indefinite appointments in the excepted service or under temporary appointments that are specifically excluded from CSRA coverage by statute. See 5 U.S.C. § 8347(g). Further, the Board found that there was no evidence that Daquinag made contributions to the civil service retirement fund or that he was otherwise subject to the CSRA.

In his reply, Daquinag argues that Rosete was wrongly decided. However, we are bound by this court's holding in Rosete.

Accordingly,

IT IS ORDERED THAT:

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

(2) OPM's motion for leave to file an overlong motion is granted.

(3) Daquinag's motion for leave to supplement his informal brief is granted.

(4) Each side shall bear its own costs.