Vivencio B. Alvior v. Office of Personnel Management

17 F.3d 1443, 1994 U.S. App. LEXIS 14485, 1994 WL 5359

• Court: Court of Appeals for the Federal Circuit
• Decided: January 11, 1994
• Docket: 93-3375
• Status: Published

Opinion

17 F.3d 1443
NOTICE: Federal Circuit Local Rule 47.6(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issue preclusion, judicial estoppel, law of the case or the like based on a decision of the Court rendered in a nonprecedential opinion or order.

Vivencio B. ALVIOR, Petitioner,
v.
OFFICE OF PERSONNEL MANAGEMENT, Respondent.

No. 93-3375.

United States Court of Appeals, Federal Circuit.

Jan. 11, 1994.

Before NEWMAN, LOURIE, and SCHALL, Circuit Judges.

PER CURIAM.

DECISION

Vivencio B. Alvior petitions for review of the April 9, 1993 final decision of the Merit Systems Protection Board, Docket No. SE0831920325-I-1, affirming the reconsideration decision of the Office of Personnel Management (OPM) denying Mr. Alvior's application for an annuity under the Civil Service Retirement Act (CSRA). Because the Board's determination that Mr. Alvior did not meet the statutory requirements for eligibility for a retirement annuity was supported by substantial evidence, we affirm.

DISCUSSION

Mr. Alvior applied for a retirement annuity based on his service in Guam, Marianas Islands, for the Department of the Navy from 1948 to 1961. OPM denied his application on the ground that there was no evidence showing that Mr. Alvior had ever been employed by the government in a position that would qualify him to receive an annuity under the CSRA. Affirming the OPM's decision, the Administrative Judge (AJ) determined that the evidence established that Mr. Alvior served in Guam, not as a government employee, but as an employee of a private contractor under contract with the government. The AJ's decision became the final decision of the Board on April 9, 1993.

Our review of the Board's decision is limited by statute. We can reverse the decision only if it was arbitrary, capricious, an abuse of discretion, unlawful, procedurally deficient, or unsupported by substantial evidence. 5 U.S.C. Sec. 7703(c) (1988). Under this standard of review, we will not overturn an agency decision if it is supported by "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Brewer v. United States Postal Serv., 647 F.2d 1093, 1096 (Ct.Cl.1981), cert. denied, 454 U.S. 1144 (1982) (quoting Consolidated Edison Co. v. National Labor Relations Bd., 305 U.S. 197, 229 (1938)). We conclude that there was substantial evidence to support the determination that Mr. Alvior served in Guam as an employee of a private contractor; thus, the Board did not err in concluding that he was not eligible for an annuity under the CSRA.