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Estabillo v. Office of Personnel Management

Filed: July 6, 1995.

QUIRINO B. ESTABILLO, PETITIONER
v.
OFFICE OF PERSONNEL MANAGEMENT, RESPONDENT



Before Mayer, Circuit Judge, Cowen, Senior Circuit Judge, and Lourie, Circuit Judge.

Mayer

ON MOTION

MAYER, Circuit Judge.

Order

The Office of Personnel Management (OPM) moves for an extension of time to file a response brief or a motion for summary affirmance. OPM submits its motion for summary affirmance of the Merit System Protection Board's decision holding that Quirino B. Estabillo was not entitled to retirement benefits under the Civil Service Retirement Act (CSRA), 5 U.S.C. § 8331 et seq. Estabillo submits an "Informal Reply."

Estabillo was employed periodically from 1960 until 1991 by the Department of the Navy in Subic Bay, the Philippines. In 1991 Estabillo retired, and he applied for retirement benefits under the CSRA. OPM denied Estabillo's application, and he appealed OPM's denial to the Board. The Administrative Judge (AJ) determined that Estabillo had served under a series of temporary and indefinite appointments that were specifically excluded from CSRA coverage pursuant to 5 C.F.R. § 831.201(a)(1), and (a)(13). The AJ thus concluded that while Estabillo 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). Estabillo petitioned this court for review.

First, we note that 5 U.S.C. § 8347(g) specifically excludes temporary appointments from qualifying as covered service. Second, this court recently addressed whether indefinite appointments qualify as covered service in Rosete v. Office of Personnel Management, 48 F.3d 514 (Fed. Cir. 1995). The exclusion of indefinite appointments is contained in OPM's regulation that interprets § 8347(g). See 5 C.F.R. § 831.201(1)(13). We held that it was proper to defer to OPM's interpretation of § 8347(g) as excluding indefinite appointments because that interpretation was "both reasonable and of long standing." Rosete, 48 F.3d at 519. Accordingly, we concluded that an indefinite appointment in the excepted service did not constitute covered service within the meaning of the CSRA. Id. at 520.

We agree with OPM that the Board's decision that Estabillo 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 his informal reply, Estabillo 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) Each side shall bear its ...


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