Aurora M. Guiang v. Office of Personnel Management

907 F.2d 159 Unpublished Disposition NOTICE: Federal Circuit Local Rule 47.8(b) states that opinions and orders which are designated as not citable as precedent shall not be employed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issue preclusion, judicial estoppel, law of the case or the like based on a decision of the Court rendered in a nonprecedential opinion or order. Aurora M. GUIANG, Petitioner, v. OFFICE OF PERSONNEL MANAGEMENT, Respondent. No. 90-3061. United States Court of Appeals, Federal Circuit. June 25, 1990. Before RICH, Circuit Judge, COWEN, Senior Circuit Judge, and PAULINE NEWMAN, Circuit Judge. PER CURIAM. DECISION [1] On reconsideration, the Office of Personnel Management (OPM), denied petitioner's application for survivor benefits under the Civil Service Retirement Act, based on the service of her husband. She appealed to the Merit Systems Protection Board (MSPB), which upheld the determination of OPM (MSPB Docket No. SE08318910086). We affirm the decision of the MSPB. OPINION [2] Although Mrs. Guiang claims that her husband had twenty-six years and eleven months of federal civilian service at the time his employment was terminated, she was unable to prove that he had ever been employed in a position subject to the Civil Service Retirement Act. As the administrative judge found, 11 of the Personnel Action Forms affecting Mr. Guiang between the years 1956 and 1983, showed that none of the positions was subject to civil service retirement coverage. In addition, the MSPB found that several of the Personnel Forms from 1958 and 1959 revealed that Mr. Guiang held excepted indefinite appointments and temporary appointments, limited to one year or less, during that portion of his service. [3] The law is well settled that length of service without regard to the nature of an employee's service, is not a sufficient basis for an award of retirement benefits. See Cubacub v. Department of the Navy, 230 Ct.Cl. 908 (1982). It is also well established that benefits under the Civil Service Retirement Act may not be received on the basis of service under temporary or excepted indefinite appointments. See Herrera v. United States, 849 F.2d 1416 (Fed.Cir.1988).