Cubacub v. Department of the Navy

This is an appeal from a decision of the Merit Systems Protection Board (mspb) holding petitioner is not entitled to retirement benefits under the Civil Service Retirement System (csrs), 5 U.S.C. §8331 (1976) et seq. Respondent has moved for summary judgment. After careful consideration of the parties’ submissions and without oral argument, we affirm the decision of the mspb .

Petitioner, a citizen of the Republic of the Philippines, was a civilian employee of the United States Department of the Navy for over 21 years. The mspb found, and a review of the record clearly demonstrates, that petitioner’s appointment was at all times specifically excluded from csrs coverage. Petitioner therefore does not meet the requirement of 5 U.S.C. §8333(a) that he have completed 5 years of creditable service to qualify for benefits under csrs. Guevara v. United States, 229 Ct. Cl 595 (1981).

Petitioner argues that his appointment must qualify him for csrs benefits because he worked for the Navy for 21 years. Due to the length of his appointment, he contends his *909appointment was not properly classified "Excepted Appointment - Indefinite.” There is simply no support for petitioner’s position. Petitioner also claims, without documentary support, that others in excepted, indefinite appointments have received csrs benefits. This does not present a triable issue of fact. Those individuals may well have held positions qualifying them for csrs benefits prior to their retirement from an excepted position.

it is therefore ordered that the decision of the Merit Systems Protection Board be and is hereby affirmed.