73 F.3d 378
NOTICE: Federal Circuit Local Rule 47.6(b) states that opinions and orders which are designated as not citable as precedent shall not be employed or cited as precedent. This does not preclude assertion of issues of claim preclusion, issue preclusion, judicial estoppel, law of the case or the like based on a decision of the Court rendered in a nonprecedential opinion or order.
Virgilio I. MANALAYSAY, Petitioner,
v.
OFFICE OF PERSONNEL MANAGEMENT, Respondent.
No. 95-3675.
United States Court of Appeals, Federal Circuit.
Nov. 29, 1995.
Before PLAGER, Circuit Judge, NIES, Senior Circuit Judge, and RADER, Circuit Judge.
PLAGER, Circuit Judge.
ON MOTION
ORDER
The Office of Personnel Management (OPM) moves for summary affirmance of the Merit Systems Protection Board's decision holding that Virgilio I. Manalaysay was not entitled to retirement benefits under the Civil Service Retirement Act (CSRA), 5 U.S.C. Sec. 8331 et seq.* The court accepts Manalaysay's untimely opposition.
Manalaysay was employed by the Department of the Navy in Subic Bay, Philippines from 1967 until 1992. In 1992, Manalaysay was separated when the base closed, and he applied for retirement benefits under the CSRA. OPM denied Manalaysay's application, and he appealed OPM's denial to the Board. The Administrative Judge (AJ) determined that Manalaysay had served under a series of temporary or excepted, indefinite appointments, all of which were specifically excluded from CSRA coverage pursuant to 5 C.F.R. Sec. 831.201(a)(12)-(13). Accordingly, the AJ concluded that Manalaysay had never been employed in a position covered by the CSRA and thus was not entitled to retirement benefits. See 5 U.S.C. Sec. 8333(b); 5 U.S.C. Sec. 8347(g). Manalaysay petitioned this court for review.
This court recently considered the issues raised by Manalaysay's petition for review. In Rosete v. Office of Personnel Management, 48 F.3d 514 (Fed.Cir.1995), 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 Manalaysay 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. Manalaysay 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. Sec. 8347(g). Further, the Board found that there was no evidence that Manalaysay made contributions to the civil service retirement fund or that he was otherwise subject to the CSRA.
In his opposition, Manalaysay 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) Each side shall bear its own costs.
We grant OPM leave to file an overlong motion