NOTE: This disposition is nonprecedential.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 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 NOTE: This disposition is nonprecedential.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 

2009-3102 

 -2- 
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). 

2009-3102 

 -3- 
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 

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 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.