                 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).

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