Diaz v. Office of Personnel Management , 191 F. App'x 964 ( 2006 )

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
06-3166
AGNES C. DIAZ,
Petitioner,
v.
OFFICE OF PERSONNEL MANAGEMENT,
Respondent.
__________________________
DECIDED: September 11, 2006
__________________________
Before LOURIE, Circuit Judge, PLAGER, Senior Circuit Judge, and RADER, Circuit
Judge.
PER CURIAM.
The Office of Personnel Management (OPM) denied Agnes C. Diaz’s application
for a survivor annuity under the Civil Service Retirement System (CSRS). The Merit
Systems Protection Board (Board) affirmed OPM’s decision.1 Because the Board’s
decision that Ms. Diaz is not entitled to a CSRS survivor annuity is supported by
substantial evidence and is not arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with the law, we affirm.
1
Diaz v. Office of Pers. Mgmt., No. SF-0831-05-0664-I-1 (M.S.P.B. Sept.
21, 2005) (Initial Decision); Diaz v. Office of Pers. Mgmt., No. SF-0831-05-0664-I-1
(M.S.P.B. Jan. 20, 2006) (Final Order).
Ms. Diaz seeks survivor benefits based on the federal service of her late
husband, Emilio A. Diaz. She is eligible for a CSRS survivor annuity only if Mr. Diaz
completed five years of “creditable” service and if one of the last two years of service
before he retired was “covered” service. See 5 U.S.C. § 8333(a), (b); Rosete v. Office
of Pers. Mgmt., 48 F.3d 514, 516 (Fed. Cir. 1995). While most federal government
service is creditable, covered service is more limited in scope, requiring an appointment
subject to the Civil Service Retirement Act (CSRA) and, typically, the withdrawal of
retirement contributions from the employee’s pay. Rosete, 48 F.3d at 516.
The administrative record shows that Mr. Diaz worked continuously for the
Department of the Navy at Subic Bay in the Philippines from September 1, 1959, to
September 18, 1987. Although Mr. Diaz completed more than five years of creditable
service, that service was pursuant to a series of indefinite appointments in the excepted
service and is excluded from coverage under the CSRA. See 5 C.F.R. § 831.201(a)(13)
(excluding from coverage employees serving under indefinite appointments made after
January 23, 1955). This conclusion is supported by the SF-50 personnel forms in Mr.
Diaz’s record, which indicate his retirement coverage as “none,” “other,” or blank.
These forms also reveal that retirement contributions were not withheld from Mr. Diaz’s
paycheck and state that he was entitled to retirement pay in accordance with a
collective bargaining agreement, i.e., a retirement plan other than one covered by the
CSRA.
Ms. Diaz contends on appeal that the Administrative Judge failed to consider Mr.
Diaz’s service prior to September 1, 1959, which she alleges is documented in an SF-
50 and a property clearance form that were not included in the record before the Board.
06-3166 2
Even if we were to consider those additional documents, which ordinarily we would not
do, the Board’s conclusion that Ms. Diaz was not entitled to a CSRS survivor annuity
remains correct.
The newly submitted property clearance form appears to show that Mr. Diaz
separated from federal service on August 28, 1959. Because that alleged separation
occurred after August 31, 1954, Ms. Diaz is eligible for an annuity based on this earlier
period of Mr. Diaz’s service only if one of the last two years of service before the August
28, 1959, separation was covered by the CSRA. See Tizo v. Office of Pers. Mgmt., 325
F.3d 1378, 1379-80 (Fed. Cir. 2003) (stating that Congress added the “covered” service
requirement effective Aug. 31, 1954).
The newly submitted SF-50, however, indicates that Mr. Diaz’s federal service
beginning on Dec. 14, 1954, was pursuant to an indefinite appointment in the excepted
service. Although indefinite appointments during this time period were not excluded
from CSRA coverage by regulation, they were excluded from coverage by a series of
Executive Orders. See Casilang v. Office of Pers. Mgmt., 248 F.3d 1381, 1382-83
(Fed. Cir. 2001). Therefore, Ms. Diaz has not established that any of Mr. Diaz’s service
prior to September 1, 1959, was “covered” service, and thus she is not eligible for a
survivor annuity based on this earlier period of Mr. Diaz’s service.
We have considered Ms. Diaz’s other arguments and find them to be without
merit. Because the Board’s decision that Ms. Diaz is not entitled to a CSRS survivor
annuity is supported by substantial evidence and is not arbitrary, capricious, an abuse
of discretion, or otherwise not in accordance with the law, we affirm. See 5 U.S.C.
§ 7703(c).
06-3166 3