ROBERT C. DEVLIN, Petitioner,
OFFICE OF PERSONNEL MANAGEMENT, Respondent
Petition for review of the Merit Systems Protection Board in No. SF0843130210-I-1.
JASON M. WILCOX, Kirkland & Ellis LLP, of Washington, DC, argued for petitioner.
DOMENIQUE KIRCHNER, Senior Trial Counsel, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, argued for respondent. With her on the brief were STUART F. DELERY, Assistant Attorney General, ROBERT E. KIRSCHMAN JR., Director, and STEVEN J. GILLINGHAM, Assistant Director.
Before NEWMAN, MOORE, and REYNA, Circuit Judges.
Moore, Circuit Judge.
Robert Devlin appeals from the decision of the Merit Systems Protection Board (Board) denying his application for Basic Employee Death Benefits (BEDB) pursuant to 5 U.S.C. § 8442(b)(1)(A) submitted on behalf of his mother's estate. Because the Board properly interpreted 5 U.S.C. § 8442(b)(1)(A) and the Office of Personnel Management's(OPM) implementing regulations, we affirm.
Darlene Devlin had been married for over forty years when her husband died. At the time of his death, Mrs. Devlin's husband had been a civilian federal employee for nearly six years, entitling Mrs. Devlin to BEDB should she submit an application. See 5 U.S.C. § § 8442(b)(1)(A), 8466(b). However, Mrs. Devlin died before she could signor file an application for BEDB. Following Mrs. Devlin's death, her son, Mr. Devlin, completed, signed, and filed an application for BEDB on her behalf.
OPM denied Mr. Devlin's application, concluding that Mrs. Devlin was not entitled to BEDB because she failed to submit an application for those benefits before her death. Mr. Devlin sought reconsideration, asserting that his appointment as a co-administrator of his mother's estate permitted him to sign and file the application for BEDB on her behalf. OPM affirmed, and Mr. Devlin appealed to the Board. The administrative judge and, subsequently, the Board, affirmed. The Board concluded that, under 5 U.S.C. § 8442(b)(1)(A) and the implementing OPM regulations, while the spouse of a federal employee
may be entitled to BEDB upon the employee's death, that spouse's estate may not apply for those benefits on her behalf. Devlin v. Office of Pers. Mgmt., 120 M.S.P.R. 78, 80-81 (2013). The Board concluded that Mr. Devlin could not apply for BEDB on Mrs. Devlin's behalf. Id. Mr. Devlin appeals. We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(9).
We must affirm the Board's holding unless it is " (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) ...