             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

                                       06-3108


                              DOMINADOR J. GORDO,

                                                Petitioner,

                                           v.

                      OFFICE OF PERSONNEL MANAGEMENT,

                                                Respondent.


                          ____________________________

                              DECIDED: July 12, 2006
                          ____________________________


Before LOURIE, Circuit Judge, PLAGER, Senior Circuit Judge, and LINN, Circuit Judge.

PER CURIAM.

                                      DECISION

      Dominador J. Gordo (“Gordo”) appeals from the final decision of the Merit

Systems Protection Board (the “Board”) affirming the decision of the Office of Personnel

Management (“OPM”) denying his application for Civil Service Retirement System

(“CSRS”) retirement annuity benefits under the Civil Service Retirement Act (“CSRA”).

Gordo v. Office of Pers. Mgmt., SF-0831-05-0499-I-1 (M.S.P.B. Nov. 7, 2005) (“Final

Decision”). We affirm.
                                      BACKGROUND

       Gordo worked for the Department of the Navy at Subic Bay in the Philippines

from 1967 to 1992. Gordo v. Office of Pers. Mgmt., SF-0831-05-0499-I-1, slip op. at 2

(M.S.P.B. July 28, 2005) (“Initial Decision”). From May 5, 1967, to June 23, 1970,

Gordo’s appointments were excepted appointments: all were temporary appointments

with not-to-exceed (“NTE”) dates, except for one that was an intermittent appointment.

Id.   On June 23, 1970, Gordo’s position was converted to an excepted, indefinite

appointment, in which he served until his retirement in lieu of a separation through a

reduction in force on September 30, 1992. Id. On August 5, 2003, Gordo filed an

application with the OPM requesting CSRS retirement annuity benefits. Id. The OPM

denied that application for benefits in a December 8, 2004 initial decision, and Gordo

requested reconsideration. Id., slip op. at 2-3. On February 14, 2005, the OPM issued

its final decision affirming its initial decision finding that Gordo was not eligible for CSRS

retirement annuity benefits.

       Gordo appealed the final decision of the OPM to the Board.                  Id.   The

Administrative Judge (“AJ”) affirmed the OPM’s denial of Gordo’s application for CSRS

retirement annuity benefits. Id., slip op. at 6. The AJ held that all of Gordo’s service

was rendered under temporary, intermittent, and excepted appointments, and as such

those periods of service were excluded from coverage under the CSRA by 5 C.F.R.

§§ 831.201(a)(1), (6), (12) and (13).      Id., slip op. at 3.   The Board noted that the

Standard Forms 50 (“SF-50”) in the administrative record, which documented Gordo’s

service, reflected that he had never served in a CSRA covered position. Id., slip op. at

4-5. The Board also determined that the conversion of Gordo’s NTE appointments to




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an excepted, indefinite appointment did not entitle him to CSRS retirement annuity

benefits. Id., slip op. at 5-6.

       Gordo sought review by the full Board, the Board denied his petition, and the

AJ’s decision became the final decision of the Board. See 5 C.F.R. § 1201.113(b)

(2006). Gordo timely appealed to this court, and we have jurisdiction pursuant to 28

U.S.C. § 1295(a)(9).

                                      DISCUSSION

       The scope of our review in an appeal from a decision of the Board is limited. We

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); see Briggs v. Merit Sys. Prot. Bd.,

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

       On appeal, Gordo argues that the actual nature of his service rather than the

characterization of his service as reflected in various SF-50 forms dictated his eligibility

for CSRS retirement annuity benefits. He also asserts that the Department of Navy

entered the codes describing his retirement eligibility status in his SF-50 forms, and that

Congress authorized the OPM, not employing agencies, to administer retirement law

and to promulgate retirement regulations. In addition, Gordo contends that he became

a permanent employee at the end of a one-year probationary period on June 23, 1971,

because his tenure group status was elevated at that time. Finally, Gordo argues that

the designation of his work schedule was “F” (for full-time), indicating that he was a

permanent employee and therefore outside the scope of 5 C.F.R. § 831.201(a)(13)




06-3108                                  -3-
(excluding coverage of “nonpermanent employees” under the CSRA).

      The government responds that substantial evidence supports the Board’s

determination that Gordo’s appointments were excluded from CSRA coverage, and that

Gordo is not eligible for CSRS retirement annuity benefits. The government points out

that Gordo has not provided any evidence suggesting that the nature of his appointment

was anything other than temporary, intermittent, or indefinite. The government also

asserts that the change in Gordo’s tenure group does not establish that his appointment

was permanent rather than indefinite. Finally, the government argues that the fact that

Gordo may have worked full-time does not mean his service was covered under the

CSRA.

      We agree with the government that the Board’s decision was supported by

substantial evidence and in accordance with the law. To be eligible for a CSRS annuity,

an employee must complete five years of what is called “creditable” service. 5 U.S.C. §

8333(a) (2006). In addition, one of the last two years of the employee’s service must

qualify as “covered” service. 5 U.S.C. § 8333(b) (2006); see Rosete v. Office of Pers.

Mgmt., 48 F.3d 514, 516-17 (Fed. Cir. 1995). Here, the Board correctly determined that

Gordo’s civilian service was “creditable,” but that none of his service qualified as

“covered.”

      Whether or not civilian service is “covered” is determined by the OPM’s

regulations. See 5 U.S.C. §§ 8347(a), (g) (2006) (giving the OPM authority to exclude

certain groups of employees from CSRA coverage).           Those regulations explicitly

exclude several types of employees from CSRA coverage, including those “serving

under appointments limited to one year or less,” “[i]ntermittent alien employees engaged




06-3108                                -4-
on work outside the continental limits of the United States,” and those “serving under

nonpermanent appointments, designated as indefinite, made after January 23, 1955.” 5

C.F.R. §§ 831.201(a)(1), (6), (13) (2006).       Here, substantial evidence of record

establishes that Gordo’s appointments to federal service were excepted temporary

appointments with NTE dates, a temporary intermittent appointment, and an indefinite

appointment. As the Board pointed out, the SF-50 forms denote Gordo’s retirement

status as “not applicable,” “other,” or “none,” indicating that he was never in a position

covered by the CSRA, and it is undisputed that retirement deductions were never taken

from Gordo’s pay. Initial Decision, slip op. at 4. All of Gordo’s service was therefore

excluded from coverage under the CSRA. Because Gordo did not complete one year of

covered service during the two-year period immediately preceding his retirement, as

required by 5 U.S.C. § 8333(b), we affirm the Board’s conclusion that he is not eligible

for CSRS retirement annuity benefits.

      We reject Gordo’s argument that the Board failed to consider the nature of his

appointment. The Board did consider his arguments, but there is no evidence in the

record suggesting that his appointment was not indefinite, intermittent, or temporary. In

addition, that Gordo’s tenure group status was elevated does not establish that his

appointment was permanent rather than indefinite. See Rosete, 48 F.3d at 519-20

(holding that Rosete’s service was not covered under the CSRA even though she held a

tenure status that was inconsistent with an indefinite appointment). Further, that Gordo

worked full-time does not create entitlement to benefits.

      We have considered Gordo’s remaining arguments and find them unpersuasive.

We therefore affirm the Board’s decision.




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