Anonas v. Office of Personnel Management

ORDER GAJARSA, Circuit Judge. Virginia M. Anonas and the Office of Personnel Management (OPM) respond to the issue of whether Anonas’ petition for review should be dismissed as frivolous. Anonas petitions this court for review of a Merit Systems Protection Board decision denying her request for a survivor annuity under the Civil Service Retirement System (CSRS). In the initial decision, the administrative judge determined that Anonas was not entitled to a CSRS survivor annuity because her late husband’s service was pursuant to excepted indefinite or temporary appointments. In her response, Anonas argues that Rósete does not apply because her husband received an indefinite appointment in 1952, before 5 C.F.R. § 831.201 was promulgated. Anonas also argues that Executive Order 10,180 applies only to citizens of the United States. Anonas’ arguments are without merit. Although Anonas’ husband received an indefinite appointment before the promulgation of 5 C.F.R. § 831.201, Executive Order 10,180 was in effect in 1952. As the court noted in Rósete, Executive Order 10,180 “specifically excluded employees with ‘nonpermanent appointments,’ including indefinite appointments, from coverage under the CSRA.” Rosete v. Office of Personnel Management, 48 F.3d 514, 519 (Fed.Cir.1995). In addition, there is no authority to support Anonas’ contention that Executive Order 10,180 applies only to citizens of the United States. As OPM notes in its response, the court in Rosete relied upon Guevara v. United States, 229 Ct.Cl. 595 (1981), which held that a Filipino citizen who received an indefinite appointment in the Philippines was excluded from CSRA coverage. [827] Thus, because Anonas’ petition seeks review of issues that were conclusively decided in Rósete, and because her attempts to distinguish Rósete are without merit, Anonas’ petition must be dismissed. Accordingly, IT IS ORDERED THAT: (1) Anonas’ petition for review is dismissed. (2) Anonas’ motion for leave to proceed in forma pauperis is moot.