846 F.2d 77
Mariano D. UNTALAN, Petitioner,
OFFICE OF PERSONNEL MANAGEMENT, Respondent.
United States Court of Appeals, Federal Circuit.
March 3, 1988.
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issue preclusion, judicial estoppel, law of the case or the like based on a decision of the Court rendered in a nonprecedential opinion or order.
Before FRIEDMAN, PAULINE NEWMAN and ARCHER, Circuit Judges.
Petitioner, Mariano D. Untalan, seeks review of the final decision of the Merit Systems Protection Board (board), Docket No. SE08318510212, denying his claim of entitlement to a retirement annuity. We affirm the decision of the board.
Although petitioner established that he had more than five years of creditable service for civil service retirement purposes, the board noted that petitioner admitted he had not been employed by the U.S. Government in a position covered by the Civil Service Retirement Act (Act), 5 U.S.C. Sec. 8331, et seq. As he contended below, petitioner argues that creditable service should be treated as covered service, referring to 5 U.S.C. Sec. 8333 (1982). However, subsection (b) of 5 U.S.C. Sec. 8333 specifically provides that, in addition to having at least five years of creditable service as required by subsection (a), an employee "must complete, within the last 2 years before any separation from service, ... at least 1 year of creditable civilian service during which he is subject to [the Act]." (Emphasis added.) Since petitioner has not established that he occupied a position that was "subject to" or covered by the Act, the decision of the board must be affirmed.