NOTE: This disposition is nonprecedential.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 , AttorneyAdvisor, United States Office of Pers onnel Management, of Washington, DC. Appealed from: Merit S ystems Protection BoardNOTE: This disposition is nonprecedential.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 Meri t 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 dec ision of the Merit Systems Protection Board (the “Board”) affirming her ineligibility to make a deposit under the Civil Service Retirement System (“CSRS”). Laz arte 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. Laz arte, was employed as a machinist in an excepted service position at a U.S. Nava l Station in the Philippines beginning in1966. His one-year appointment was extended several time s 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 contri bute to any CSRS retirement fund. On June 5, 1990, Mr. Lazarte died while employ ed 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 co llective bargaining agree ment of January 17, 1990. On June 26, 2007, Ms. Lazarte submi tted an application to the Office of Personnel Management (“OPM”) to make a depos it under the CSRS. OPM denied the application on the ground that Mr. Lazarte’s re cord 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 adm inistrative judge (“AJ”) affirmed OPM’s decision. The AJ found that, for a civilian em ployee to be eligible for a civil service retirement annuity, he must complete five years of qualified ci vilian service, ending wit h 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 indefinit e appointments are generally excluded from CSRS retirement coverage. Further, acco rding 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

2009-3102 -2-the AJ found that no evidence demonstrated t hat deductions were ever withheld from his pay. Finally, the AJ reasoned that Mr. Laz arte’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 retroac tively 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 t he AJ’s decision. In a decision issued on December 4, 2008, the Boar d denied the petition, concludi ng 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 c ourt. 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 decisi on only if it was “(1) arbitrary, capricious, an abuse of discretion, or otherwis e 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) (q uotation marks omitted).

2009-3102 -3-Ms. Lazarte primarily makes legal argum ents 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 ar gues 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 c ontest 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 Pers onnel Instructions and collective bargaining agreement. The government responds that, for purposes of the CSRS, an “employee” is defined broadly but does not include an employ ee subject to another retirement system for government employees. Thus, the gov ernment argues that Mr. Lazarte was correctly excluded from CSRS coverage and t hat Ms. Lazarte could not make a CSRS deposit. We agree with the government that the law is clear t hat Ms. Lazarte is not entitled to make a CSRS deposit. Mr. Lazar te 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 ci vilian 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 syst em, the Filipino Employment Personnel Instructions and collective bargaining agreem ent. Thus, Mr. Lazarte was not an “employee” for purposes of the CSRS. Ms. Laz arte is therefore not a survivor of an

2009-3102 -4-2009-3102 -5- “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 surv ivorship 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.