NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2009-3081
REMEDIOS LABRADOR,
Petitioner,
v.
OFFICE OF PERSONNEL MANAGEMENT,
Respondent.
Remedios Labrador, of Libertad, San Narcisco, Phillipines, pro se.
Douglas G. Edelschick, Trial Attorney, Commercial Litigation Branch, Civil
Division, United States Department of Justice, of Washington, DC, for respondent. With
him on the brief were Jeanne E. Davidson, Director, and Bryant S. Snee, Deputy
Director.
Appealed from: Merit Systems Protection Board
NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2009-3081
REMEDIOS LABRADOR,
Petitioner,
v.
OFFICE OF PERSONNEL MANAGEMENT,
Respondent.
Petition for review of the Merit Systems Protection Board in SF-0831080337-I-1.
DECIDED: May 5, 2009
Before SCHALL, GAJARSA, and MOORE, Circuit Judges.
PER CURIAM.
DECISION
Remedios Labrador petitions for review of the final decision of the Merit Systems
Protection Board (“Board”) that affirmed the Office of Personnel Management’s (“OPM”)
denial of her application to make a survivor deposit into the Civil Service Retirement
System (“CSRS”). Labrador v. Office of Pers. Mgmt., 110 M.S.P.R. 306 (Table) (2008)
(“Final Decision”). We affirm.
DISCUSSION
I.
Ms. Labrador’s late husband, Vincent R. Labrador, worked for twenty-six years
as a civilian employee of the U.S. Department of the Navy (“Navy”) at the Navy Public
Works Center in the Philippines. During his service, Mr. Labrador did not contribute to
CSRS retirement benefits. Rather, he was subject to a negotiated retirement plan
according to a collective bargaining agreement (“CBA”). Following Mr. Labrador’s death
in 1991, the Navy notified his beneficiaries that they would receive various benefits
pursuant to the CBA.
In November 2007, Ms. Labrador submitted an application to OPM, requesting to
make a survivorship deposit into the CSRS based on Mr. Labrador’s civil service. OPM
denied her application and her subsequent request for reconsideration in December
2007 and February 2008, respectively. Ms. Labrador then appealed to the Board. In an
initial decision dated July 10, 2008, the administrative judge (“AJ”) to whom the appeal
was assigned found that, although Mr. Labrador had been in federal service, he was not
covered by CSRS, but instead was covered by the CBA. Thus, because Mr. Labrador
was not covered under CSRS, Ms. Labrador was ineligible for CSRS benefits and could
not deposit into the CSRS fund. The AJ thus affirmed OPM’s reconsideration decision.
See Labrador v. Office of Pers. Mgmt., No. SF-0831-08-0337-I-1 (M.S.P.B. July 10,
2008) (“Initial Decision”). The Initial Decision became the Final Decision on November
13, 2008, when the Board denied Ms. Labrador’s petition for review. This appeal
followed. We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(9).
2009-3081 2
II.
Our scope of review in an appeal from a decision of the Board is limited.
Specifically, we must affirm the Board’s decision unless we find it to be (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); Kewley v. Dep’t of Health &
Human Servs., 153 F.3d 1357, 1361 (Fed. Cir. 1998).
On appeal, Ms. Labrador does not seriously contest that her late husband 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 CBA. Rather, she primarily makes legal
arguments, taking the position that she is still entitled to make a deposit into the CSRS,
regardless of whether her husband was covered by the CSRS.
The law is clear, however. Although a survivor of an employee may make a
deposit into the CSRS, see 5 U.S.C. § 8334(h), a survivor may only do so if the
employee was covered by CSRS, see Quiocson v. Office of Pers. Mgmt., 490 F.3d
1358, 1360 (Fed. Cir. 2007). An employee is excluded from the CSRS, however, if they
were “subject to another retirement system.” 5 US.C. § 8331(1)(ii); see Quiocson, 490
F.3d at 1360 (“Mr. Quiocson was covered by a different retirement system” and
therefore “his service was not covered under the CSRS”). Importantly, there is
substantial evidence that Mr. Labrador’s retirement was covered by a retirement system
other than CSRS—namely, the CBA. In fact, Ms. Labrador does not challenge this
evidence. Thus, she is not entitled to make survivor deposits. See Quiocson, 490 F.3d
at 1360-61 (affirming the Board’s denial of a survivorship annuity because the employee
2009-3081 3
never served in a position covered by CSRS). Accordingly, the Board’s determination
was in accordance with law and supported by substantial evidence.
For the foregoing reasons, the final decision of the Board is affirmed.
No costs.
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