                 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


                                       05-3354

                                 LIDUVINA GAJETE,
                          (substituted for Alfredo L. Gajete),

                                                      Petitioner,


                                           v.


                     OFFICE OF PERSONNEL MANAGEMENT,

                                                      Respondent.


                          ____________________________

                          DECIDED: May 16, 2006
                          ____________________________


Before MICHEL, Chief Judge, SCHALL, and DYK, Circuit Judges.

PER CURIAM.


                                      DECISION

      Liduvina Gajete petitions for review of the final decision of the Merit Systems

Protection Board (“Board”) that sustained the reconsideration decision of the Office of

Personnel Management (“OPM”) denying her deceased husband’s application for a

deferred annuity under the Civil Service Retirement Act (“CSRA”), Gajete v. Office of
Pers. Mgmt., No. SF0831040598-I-1, slip op. (M.S.P.B. July, 22, 2005) (“Final

Decision”). We affirm.

                                     DISCUSSION

                                           I

        Mr. Gajete was a Filipino national who was employed in civilian service by the

Department of the Navy in the Philippines from August 14, 1967, until January 8, 1988.

Mr. Gajete was appointed indefinitely to the excepted service and continued to serve

under that indefinite appointment during the entire period of his employment with the

Navy.

        On June 23, 2002, Mr. Gajete submitted to OPM an application for a deferred

retirement annuity. Upon concluding that the positions in which Mr. Gajete had been

employed were not covered by the CSRA, OPM denied the application. Mr. Gajete

sought reconsideration of that decision, and on February 18, 2004, OPM issued a

reconsideration decision, again denying Mr. Gajete’s application. Mr. Gajete appealed

the reconsideration decision to the Board. Mr. Gajete died on June 27, 2004. On

October 14, 2004, the administrative judge (“AJ”) to whom the case was assigned

ordered Mrs. Gajete substituted for Mr. Gajete. In an initial decision dated October 19,

2004, the AJ affirmed OPM’s ruling.            Gajete v. Office of Pers. Mgmt., No.

SF0831040598-I-1, slip op. (M.S.P.B. Oct., 19, 2004) (“Initial Decision”). The Initial

Decision became the final decision of the Board when the Board denied Mrs. Gajete’s

petition for review for failure to meet the criteria for review set forth at 5 C.F.R.

§ 1201.115(d). Final Decision. This appeal followed.




05-3354                                    2
                                            II

      We have jurisdiction over appeals from the Board under 28 U.S.C. § 1295(a)(9).

The decision of the Board will be affirmed unless it is arbitrary, capricious, an abuse of

discretion, or otherwise not in accordance with law; obtained without procedures

required by law, rule, or regulation having been followed; or unsupported by substantial

evidence. 5 U.S.C. § 7703(c).

      To receive an annuity under the CSRA, an individual must meet the requirements

of the law in effect at the time the individual was separated. Esteban v. Office of Pers.

Mgmt., 978 F.2d 700, 701 (Fed. Cir. 1992). Because Mr. Gajete was separated in

1988, his claim is governed by the Retirement Act of August 31, 1954. See 5 U.S.C.

§ 8333. Section 8333(a) provides: “An employee must complete at least 5 years of

civilian service before he is eligible for an annuity under this subchapter.” At the same

time, section 8333(b) requires in relevant part that “[a]n employee or Member 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 this subchapter before he or

his survivors are eligible for annuity . . . .” There is no dispute that Mr. Gajete served

well in excess of five years. His entitlement to an annuity turns upon whether the

covered service requirement of section 8333(b) was satisfied.

      The Board found that Mr. Gajete received an indefinite appointment in the

excepted service and that the Standard Form 50 “Notification of Personnel Action” (“SF-

50”) documenting Mr. Gajete’s appointment stated that his retirement plan was “4” or

“none.” Initial Decision, slip op. at 2. In fact, all of Mr. Gajete’s SF-50 forms indicate

that his retirement status was “none” or “other,” and no SF-50 indicates that he was



05-3354                                     3
covered by the CSRA. Id., slip op. at 3. The Board also found that despite numerous

intervening personnel actions including reassignments, promotions, and within-grade

salary increases, Mr. Gajete continued to serve under his original indefinite appointment

until his resignation. Id., slip op. at 2. The Board further found that, upon his retirement,

Mr. Gajete received a lump-sum benefit under the U.S. Forces Early Retirement Plan in

accordance with the Filipino Employment Personnel Instructions (“FIPI”). Id., slip op. at

2, 4. Notably, the Board found that no documentation in the record indicates that any

retirement contributions were ever withheld from Mr. Gajete’s pay. Id., slip op. at 4.

Furthermore, while the Board found that Mr. Gajete at some point became classified in

“tenure group 1,” which indicated that he was a “permanent” employee, because Mr.

Gajete’s records appeared complete, the Board determined that the tenure group

designation was insufficient to overcome the other evidence of record. Id., slip op. at 5.

Lastly, the Board found that Mr. Gajete failed to submit sufficient evidence to

demonstrate that he acquired “competitive” status as the result of being promoted. Id.

       We see no error in the Board’s decision that Mr. Gajete was not subject to the

CSRA. Mr. Gajete served under an indefinite appointment in the excepted service for

the duration of his career, and 5 C.F.R. § 831.201(a)(13) provides that indefinite

appointments are specifically excluded from CSRA coverage. See Rosete v. Office of

Pers. Mgmt., 48 F.3d 514, 520 (Fed. Cir. 1995) (upholding the exclusion in 5 C.F.R.

§ 831.201(a) of employees holding indefinite appointments from receiving CSRA

retirement benefits). Significantly, all SF-50s ever issued concerning Mr. Gajete reflect

that his retirement status was “none” or “other,” namely other than the CSRA.

Moreover, the relevant documents indicate that no retirement contributions were ever



05-3354                                      4
withheld from Mr. Gajete’s pay. See id. at 516 (“Covered service only includes an

appointment . . . for which an employee must deposit part of his or her pay into the Civil

Service Retirement and Disability Fund.”). It is also significant that Mr. Gajete received

a lump-sum retirement benefit under the U.S. Forces Early Retirement Plan in

accordance with the FIPI, which is a retirement system other than the CSRA. Initial

Decision, slip. op. at 4.     Employees subject to another retirement system for

government employees are excluded from coverage under the CSRA. 5 U.S.C.

§ 8331(1)(ii); see De Guzman v. Dep’t of Navy, 231 Ct. Cl. 1005 (1982) (“5 U.S.C.

§ 8331(1)(ii) provides that the Retirement Act does not include an employee subject to

another retirement system for Government workers.”).

      The Board also correctly determined that the fact that Mr. Gajete’s records

indicate that he was in “tenure group 1” does not affect the determination of whether he

was a permanent employee. Initial Decision, slip op. at 4-5. The Board reasoned that

the tenure group status is used primarily to determine an employee’s rights in a

reduction in force, but is not determinative of either appointment or retirement rights.

Id., slip op. at 4. The Board noted DeJesus v. Office of Personnel Management, 63

M.S.P.R. 586, 593 (1994), aff’d, 62 F.3d 1431 (Fed. Cir. 1995) (Table) and Fredeluces

v. Office of Personnel Management, 57 M.S.P.R. 598, 602 n.4 (1993), aff’d, 16 F.3d 421

(Fed. Cir. 1993), as standing for the proposition that tenure groups may be considered

in determining the nature of the underlying appointment “if the personnel records are

incomplete and the employee was at any time subject to the CSRA.” Initial Decision,

slip op. at 4-5. Because the Board found that Mr. Gajete’s personnel records appear

complete and because it was not shown that he was ever covered under the CSRA, the



05-3354                                     5
Board found that the tenure group designation was insufficient to overcome the other

evidence in the record. Id., slip op. at 5. We see no error in this finding. Also, because

Mr. Gajete failed to sufficiently demonstrate that he acquired “competitive” status as the

result of being promoted, the Board correctly determined that his promotions did not

create retirement coverage under the CSRA. Id. Lastly, Executive Order 10577 is

inapposite. As we held in Casilang v. Office of Pers. Mgmt., 248 F.3d 1381, 1383 (Fed.

Cir. 2001), “Executive Order No. 10,577 did not convert all indefinite appointments

made under Executive Order No. 10,180 into appointments covered by the CSRA . . . .”

We have considered the remainder of the arguments advanced by Mrs. Gajete and

have found them to be without merit.

      For the foregoing reasons, the final decision of the Board is affirmed.

      Each party shall bear its own costs.




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