767 F.3d 1285 (Fed. Cir. 2014), 2014-3018, Devlin v. Office of Personnel Management

Docket Nº:2014-3018
Citation:767 F.3d 1285
Opinion Judge:Moore, Circuit Judge.
Party Name:ROBERT C. DEVLIN, Petitioner, v. OFFICE OF PERSONNEL MANAGEMENT, Respondent
Attorney: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, Assi...
Judge Panel:Before NEWMAN, MOORE, and REYNA, Circuit Judges.
Case Date:September 12, 2014
Court:United States Courts of Appeals, Court of Appeals for the Federal Circuit
 
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Page 1285

767 F.3d 1285 (Fed. Cir. 2014)

ROBERT C. DEVLIN, Petitioner,

v.

OFFICE OF PERSONNEL MANAGEMENT, Respondent

2014-3018

United States Court of Appeals, Federal Circuit

September 12, 2014

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.

OPINION

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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.

Background

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

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may be entitled to BEDB upon the employee's death, that spouse's estate may not apply for those...

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