Aragon v. Office of Personnel Management , 407 F. App'x 474 ( 2011 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
__________________________
ELIZABETH ARAGON,
Petitioner,
v.
OFFICE OF PERSONNEL MANAGEMENT,
Respondent.
__________________________
2010-3078
__________________________
Petition for review of the Merit Systems Protection
Board in case no. SF0831090824-I-1.
__________________________
Decided: January 19, 2011
__________________________
ELIZABETH ARAGON, of San Juan, Philippines, pro se.
WILLIAM J. GRIMALDI, Trial Attorney, Commercial
Litigation Branch, Civil Division, United States Depart-
ment of Justice, of Washington, DC, for respondent. With
him on the brief were TONY WEST, Assistant Attorney
General, JEANNE E. DAVIDSON, Director, and ALAN J. LO
RE, Assistant Director.
__________________________
ARAGON v. OPM 2
Before NEWMAN, MAYER, and BRYSON, Circuit Judges.
PER CURIAM.
Elizabeth Aragon appeals a decision of the Merit Sys-
tems Protection Board affirming the reconsideration
decision of the Office of Personnel Management (“OPM”)
that denied her application to make a deposit under the
Civil Service Retirement System (“CSRS”). See Aragon v.
Office of Pers. Mgmt., No. SF-0831-09-0824-I-1, 2009
MSPB LEXIS 7359 (MSPB Nov. 5, 2009). We affirm.
Mrs. Aragon seeks CSRS survivor benefits based upon
the federal service of her late husband, Saturnino Aragon,
Jr. In December 1954, Mr. Aragon received an excepted
indefinite appointment to a position with the Navy’s
public works department. He served in that position until
his resignation in December 1959. The Standard Form 50
issued in connection with his appointment indicates that
he was not covered by the CSRS.
On May 25, 1966, Mr. Aragon received an excepted
indefinite appointment to another position with the Navy.
He served in this position until his death in 1989. The
Standard Form 50 issued in connection with this ap-
pointment specifically states that Mr. Aragon’s position
was in the excepted service, rather than the competitive
service, and that he had no retirement coverage.
As the board correctly determined, Mrs. Aragon has
no right to make a CSRS deposit because her husband
was not covered by the CSRS. Her late husband’s posi-
tions with the Navy were excepted indefinite appoint-
ments and such positions are not eligible for CSRS
retirement benefits. See Carreon v. Office of Pers. Mgmt.,
321 F.3d 1128, 1131 (Fed. Cir. 2003).
“Since 1920 Congress has authorized OPM and its
predecessors to exclude certain categories of employees
3 ARAGON v. OPM
from coverage under the Civil Service Retirement Act.”
Tizo v. Office of Pers. Mgmt., 325 F.3d 1378, 1381 (Fed.
Cir. 2003) (citing 5 U.S.C. § 8347(g)). As we explained in
Rosette v. Office of Pers. Mgmt., OPM is authorized by
statute to exclude persons serving under indefinite ap-
pointments from eligibility for CSRS benefits. 48 F.3d
514, 518-19 (Fed. Cir. 1995). Even where an individual is
employed by the federal government for many years, he is
not eligible for CSRS benefits if he was appointed to his
position under an excepted indefinite appointment. See
id. (concluding that an employee who served under an
indefinite appointment for nearly twenty-six years was
not eligible for CSRS benefits). Because Mr. Aragon’s
federal service was rendered exclusively under excepted
indefinite appointments, Mrs. Aragon is not entitled to
make a deposit for purposes of obtaining CSRS retirement
benefits.
On appeal, Mrs. Aragon argues that spouses of federal
employees who die while employed by the government are
entitled to CSRS benefits under 5 U.S.C. § 8333(b). This
argument is foreclosed by our decision in Quiocson v.
Office of Pers. Mgmt., 490 F.3d 1358, 1360 (Fed. Cir.
2007). There we explained that section 8333(b) waives
the requirement that an employee covered by the CSRS
complete one year of covered service within the two-year
period before his separation from government employ-
ment in situations where an employee dies or becomes
disabled. Id. This provision does not, however, eliminate
the requirement that the surviving spouse of a govern-
ment employee may receive CSRS retirement benefits
only if that employee was covered by the CSRS. Id.We have considered Mrs. Aragon’s remaining argu-
ments, but find them unpersuasive.
No costs.