                      NOTE: This disposition is nonprecedential.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                       NOTE: This disposition is nonprecedential.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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                                         -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-
“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.




2009-3102
                                       -5-
