Estupito v. Office of Personnel Management ( 2002 )

ORDER

PAULINE NEWMAN, Circuit Judge.

Hilarion S. Estupito moves for leave to proceed in forma pauperis. The Office of Personnel Management (OPM) moves for summary affirmance of the decision of the Merit Systems Protection Board. Estupito opposes.

Estupito was employed by the United States Department of the Navy in the Philippines from 1945 to 1987. OPM determined that Estupito had never served in a position that was subject to the Civil Service Retirement System (CSRS) and denied his application for a retirement annuity. Estupito appealed to the Board. In the initial decision, the administrative judge sustained OPM’s decision, determining that Estupito was not entitled to a CSRS annuity because his service was pursuant to an excepted indefinite appointment. After the initial decision became the final decision of the Board, Estupito petitioned this court for review.

Summary disposition “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) . The Board correctly concluded that Estupito’s service was in a nonpermanent, indefinite appointment that was specifically excluded from coverage under the Civil Service Retirement Act. See 5 C.F.R. § 831.201(a)(13); Rosete v. Office of Personnel Management, 48 F.3d 514 (Fed.Cir. 1995) ; Casilang v. Office of Personnel Management, 248 F.3d 1381, 1383 (Fed. Cir.2001). The Board also noted that CSRS retirement deductions were never withheld from Estupito’s salary and that all of the SF-50s documenting Estupito’s service specified either that he was not covered by a retirement plan or that he was covered by a plan other than the CSRS. See 5 U.S.C. § 8334(a); Rosete v. Office of Personnel Management, 48 F.3d at 519-520. Because we agree with the Board that Estupito was not entitled to CSRS benefits and no substantial question is presented in this petition for review, summary disposition is appropriate.

Accordingly,

IT IS ORDERED THAT:

(1) Estupito’s motion for leave to proceed in forma pauperis is moot.

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

(3) Each party shall bear its own costs.