                  NOTE: Pursuant to Fed. Cir. R. 47.6, this disposition
                    is not citable as precedent. It is a public record.

     United States Court of Appeals for the Federal Circuit


                                         05-3109

                                   PEDRO M. MAPA,

                                                       Petitioner,

                                            v.

                      OFFICE OF PERSONNEL MANAGEMENT,

                                                        Respondent.

                           ___________________________

                           DECIDED: July 18, 2005
                           ___________________________

Before RADER, Circuit Judge, FRIEDMAN, Senior Circuit Judge, and PROST, Circuit
Judge.

RADER, Circuit Judge.

                                            I.

      The Merit Systems Protection Board (Board) denied Pedro M. Mapa’s request for

a Civil Service Retirement Service (CSRS) annuity.        The Board reasoned that Mr.

Mapa’s intermittent and non-permanent employment did not meet the requirements for

an annuity. Because the Board’s finding was not arbitrary, capricious, or an abuse of

discretion, and was in accordance with law, this court affirms.

                                            II.

      Mr. Mapa served the Department of the Navy in the Philippines over two

separate time periods. In the first period, Mr. Mapa worked intermittently under a series
of appointments from December 29, 1947, until his separation due to a reduction-in-

force on February 28, 1977.      On December 8, 1977, Mr. Mapa applied for CSRS

annuity benefits. The Civil Service Commission’s Bureau of Retirement, Insurance, and

Occupational Health (BRIOH) denied the application on October 3, 1978. The Board’s

San Francisco Field Office denied Mr. Mapa’s appeal of this decision because none of

Mr. Mapa’s appointments during this initial period was covered by the retirement

system. Mapa v. U.S. Civil Service Comm’n., No. SF-0831-00-229 (M.S.P.B. June 24,

1980) (Mapa I).

       On January 30, 1978, Mr. Mapa began a second series of appointments for the

Department of the Navy. This service continued until his retirement on March 17, 1989.

Mr. Mapa’s service from 1978 to 1989 was not considered in the 1978 decision of

BRIOH or the 1980 decision of the Board’s Field Office. On July 7, 2004, Mr. Mapa

asked the Board to review the Field Office’s decision in light of his second series of

appointments. The Board denied his request on January 3, 2005, because it could not

find clear error in the original Field Office decision; and, further, it could not consider

evidence of Mr. Mapa’s second series of appointments that was not in the original

record. Mapa v. Office of Pers. Mgmt., No. SF-0831-80-5263-O-1 (M.S.P.B. Jan. 3,

2005) (Mapa II).

       Because Mr. Mapa’s application was filed prior to January 11, 1979, the effective

date of the Civil Service Reform Act (“CSRA”), the provisions of the “old system”

governed the appeal. See, e.g., Kieser v. Office of Pers. Mgmt., 6 M.S.P.B. 245, 247-

48, 6 M.S.P.R. 287 (1981). Under the provisions of the “old system,” the Board treated

Mr. Mapa’s 2004 request as a petition for reopening and reconsideration under 5 C.F.R.




05-3109                                     2
§§ 772.310 and 772.312 (1978). These regulations provide that the Board may reopen

and reconsider a previous decision when the party submitting the request submits,

within a reasonable time after receipt of the decision, written argument or evidence

tending to establish that:

       (1) New and material evidence is available that was not readily available
           when the decision was issued;

       (2) The decision involves an erroneous interpretation of law or regulation,
           or a misapplication of established policy;

       (3) The decision is of a precedential nature involving new or unreviewed
           policy considerations that may have an effect beyond the case at
           hand; or

       (4) The decision involves policy implications extending beyond the case at
           hand of such significance as to merit personal attention of the Board
           members.

See id. The Board found the second factor dispositive because Mr. Mapa did not show

any error in the Board’s Field Office decision that, based upon his service from

December 29, 1947 to February 28, 1977, he had not met the requirements for a CSRS

annuity. Nor did Mr. Mapa submit any other evidence or argument which could have

met any of the “old system’s” remaining factors for reopening his original case. This

appeal followed.

                                       III.

       This court must affirm the Board’s decision unless it was: “(1) arbitrary,

capricious, an abuse of discretion, or otherwise not in accordance with law; (2) obtained

without procedures required by law, rule, or regulation having been followed; or (3)

unsupported by substantial evidence.” 5 U.S.C. § 7703(c) (2000); McLaughlin v. Office




05-3109                                       3
of Pers. Mgmt., 353 F.3d 1363 (Fed. Cir. 2004); see Briggs v. Merit Sys. Prot. Bd., 331

F.3d 1307, 1311 (Fed. Cir. 2003).

       Mr. Mapa contends that the Board did not consider his second period of service

to the Government, from 1978 to 1989. However, the Board was cognizant of this

second period of service. The Board correctly determined that this service did not

support his motion, because the 1980 decision concerned only his first period of service

to the Government from 1947 to 1977. Mapa II at 4 (2005). The Board determined that

Mr. Mapa’s first period of Government service did not meet the requirements for

entitlement under the provisions of the “old system” because Mr. Mapa alleged no error

in the Board’s Field Office decision. In contrast, any consideration of his second period

of service must be adjudicated under a post-CSRA framework.

       This court concurs with the Board’s determination that this new evidence may be

properly considered in a new application before OPM, so that OPM can fully develop

the record pertaining to Mr. Mapa’s service from 1978 to 1989. In sum, Mr. Mapa can

seek annuity benefits by requesting a new final decision based on his service from 1978

to 1989.

       Because this court finds that the Board reviewed the record appropriately and

applied the proper law, this court affirms the decision of the Board.




05-3109                                      4
