NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2009-3102
TERESITA LAZARTE,
Petitioner,
v.
OFFICE OF PERSONNEL MANAGEMENT,
Respondent.
Teresita Lazarte, of San Juan, San Narciso, Philippines, pro se.
Leslie Cayer Ohta, Trial Attorney, Commercial Litigation Branch, Civil Division,
United States Department of Justice, of Washington, DC, for respondent. With her on
the brief were Tony West, Assistant Attorney General, Jeanne E. Davidson, Director,
and Kenneth M. Dintzer, Assistant Director. Of counsel was Jo Ann Chabot, Attorney-
Advisor, United States Office of Personnel Management, of Washington, DC.
Appealed from: Merit Systems Protection Board
NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2009-3102
TERESITA LAZARTE,
Petitioner,
v.
OFFICE OF PERSONNEL MANAGEMENT,
Respondent.
Petition for review of the Merit Systems Protection Board in
SF0831080468-I-1.
____________________________
DECIDED: July 9, 2009
____________________________
Before LOURIE, RADER, and MOORE, Circuit Judges.
PER CURIAM.
Theresita Lazarte appeals from the final decision of the Merit Systems Protection
Board (the “Board”) affirming her ineligibility to make a deposit under the Civil Service
Retirement System (“CSRS”). Lazarte v. Office of Pers. Mgmt., SF-0831-08-0468-I-1
(M.S.P.B. Final Order Dec. 4, 2008; Initial Decision July 29, 2008). Because the Board
correctly determined that Ms. Lazarte’s deceased husband was not in a position
covered by the CSRS, we affirm.
BACKGROUND
Ms. Lazarte’s late husband, Solomon B. Lazarte, was employed as a machinist in
an excepted service position at a U.S. Naval Station in the Philippines beginning in
1966. His one-year appointment was extended several times until, in 1970, it was
converted to an indefinite appointment. The Standard Form 50 for each of his
appointments shows that his positions were not subject to the Civil Service Retirement
Act (“CSRA”), and Mr. Lazarte did not contribute to any CSRS retirement fund. On
June 5, 1990, Mr. Lazarte died while employed as a machined parts inspector at the
same duty station. At the time of his death, Mr. Lazarte’s estate was paid death
benefits and severance pay, not by the CSRS, but in accordance with the Filipino
Employment Personnel Instructions and a collective bargaining agreement of January
17, 1990.
On June 26, 2007, Ms. Lazarte submitted an application to the Office of
Personnel Management (“OPM”) to make a deposit under the CSRS. OPM denied the
application on the ground that Mr. Lazarte’s record of employment did not entitle Ms.
Lazarte to survivor benefits under the CSRS. Ms. Lazarte requested reconsideration,
and OPM again found her ineligible to make a deposit.
Ms. Lazarte then appealed OPM’s decision to the Board. In an initial decision
issued on July 29, 2008, the administrative judge (“AJ”) affirmed OPM’s decision. The
AJ found that, for a civilian employee to be eligible for a civil service retirement annuity,
he must complete five years of qualified civilian service, ending with at least one out of
the last two years in a position covered by the CSRA. The AJ noted that temporary,
intermittent, term, and excepted indefinite appointments are generally excluded from
CSRS retirement coverage. Further, according to the AJ, a Standard Form 50 that
shows no retirement coverage has consistently been held to establish that an individual
was not employed in covered service; Mr. Lazarte’s forms all showed no coverage, and
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the AJ found that no evidence demonstrated that deductions were ever withheld from
his pay. Finally, the AJ reasoned that Mr. Lazarte’s receipt of a lump sum under the
Filipino Employment Personnel Instructions indicates that he was covered under a
retirement system other than the CSRS and is probative that he was not in covered
service. Thus, because Mr. Lazarte was not employed in covered service, the AJ
determined that Ms. Lazarte could not retroactively convert a non-covered position into
a covered position and could not make a deposit under the CSRS.
Ms. Lazarte then petitioned for review of the AJ’s decision. In a decision issued
on December 4, 2008, the Board denied the petition, concluding that there was no new,
previously unavailable evidence and that the AJ made no error in law or regulation that
affected the outcome. Thus, the AJ’s initial decision became final.
Ms. Lazarte timely appealed to this court. We have jurisdiction pursuant to
28 U.S.C. § 1295(a)(9).
DISCUSSION
The scope of our review in an appeal from a Board decision is limited. We can
set aside the Board’s decision only if 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) (2006); see Briggs v. Merit Sys. Prot. Bd.,
331 F.3d 1307, 1311 (Fed. Cir. 2003). Substantial evidence is “such relevant evidence
as a reasonable mind might accept as adequate to support a conclusion.” McEntee v.
Merit Sys. Prot. Bd., 404 F.3d 1320, 1325 (Fed. Cir. 2005) (quotation marks omitted).
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Ms. Lazarte primarily makes legal arguments on appeal, taking the position that
she is entitled to make a deposit into the CSRS, even though Mr. Lazarte was not
covered by the CSRS. Ms. Lazarte argues that Congress intended to allow all
“creditable service,” which includes Mr. Lazarte’s service, to amount to service covered
by the CSRS. She does not contest that Mr. Lazarte was not subject to the CSRS, that
he never made contributions to the CSRS fund, or that his retirement was alternatively
provided for by the Filipino Employment Personnel Instructions and collective bargaining
agreement.
The government responds that, for purposes of the CSRS, an “employee” is
defined broadly but does not include an employee subject to another retirement system
for government employees. Thus, the government argues that Mr. Lazarte was
correctly excluded from CSRS coverage and that Ms. Lazarte could not make a CSRS
deposit.
We agree with the government that the law is clear that Ms. Lazarte is not
entitled to make a CSRS deposit. Mr. Lazarte was not covered by the CSRS. The
CSRS defines an “employee” as excluding “an employee subject to another retirement
system for Government employees.” 5 U.S.C. § 8331(1)(ii); see Quiocson v. Office of
Pers. Mgmt., 490 F.3d 1358, 1360 (Fed. Cir. 2007) (holding that civilian employee of the
Navy in the Philippines “was covered by a different retirement system” and therefore
“his service was not covered under the CSRS”). Ms. Lazarte does not dispute that her
husband was covered by another retirement system, the Filipino Employment Personnel
Instructions and collective bargaining agreement. Thus, Mr. Lazarte was not an
“employee” for purposes of the CSRS. Ms. Lazarte is therefore not a survivor of an
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“employee” and may not make a deposit into the CSRS. See Quiocson, 490 F.3d at
1360-61 (affirming the Board’s denial of a survivorship annuity because the employee
never served in a position covered by the CSRS); cf. 5 U.S.C. § 8334(h) (“[D]eposits
authorized by . . . this section may also be made by a survivor of an employee.”).
We have considered Ms. Lazarte’s remaining arguments and find them
unpersuasive. Accordingly, we affirm the Board’s decision.
COSTS
No costs.
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