                      NOTE: This disposition is nonprecedential.

 United States Court of Appeals for the Federal Circuit
                                       2009-3123

                                  LINDA K. FERRIS,

                                                           Petitioner,

                                           v.

                     OFFICE OF PERSONNEL MANAGEMENT,

                                                           Respondent.


      Linda K. Ferris, of Roanoke, Virginia, pro se.

       Robert C. Bigler, Trial Attorney, Commercial Litigation Branch, Civil Division,
United States Department of Justice, of Washington, DC, for respondent. With him on
the brief were Tony West, Assistant Attorney General, Jeanne E. Davidson, Director,
and Deborah A. Bynum, Assistant Director. Of counsel was Earl A. Sanders, 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                        NOTE: This disposition is nonprecedential.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
                                        2009-3123

                                    LINDA K. FERRIS,

                                                                 Petitioner,

                                            v.

                        OFFICE OF PERSONNEL MANAGEMENT,

                                                                 Respondent.


  Petition for review of the Merit Systems Protection Board in DC-0831-08-0555-I-1.

                             __________________________

                             DECIDED: July 10, 2009
                             __________________________


Before MAYER and BRYSON, Circuit Judges, and SPENCER, Chief District Judge.*

PER CURIAM.

          Linda Ferris appeals the decision of the Merit Systems Protection Board, which

affirmed the decision of the Office of Personnel Management (OPM) denying her

request for a Civil Service Retirement System (CSRS) former spouse death benefit. We

affirm.

______________________


          ∗
              The Honorable James R. Spencer, Chief Judge, United States District
Court for the Eastern District of Virginia, sitting by designation.
      Mrs. Ferris was married to Clyde Richard Ferris, an employee of the Department

of Veterans Affairs, until their divorce in April 2002. She then remarried in June 2002 at

the age of 48. This second marriage ended with the death of her spouse. After Mr.

Ferris died, Mrs. Ferris applied for CSRS survivor benefits in December 2007. Pursuant

to 5 U.S.C. § 8341(h)(3), OPM denied the application, finding that her remarriage prior

to reaching the age of 55 permanently terminated any benefits based upon Mr. Ferris’s

federal service.   She appealed to the board contending that if OPM had properly

informed her of this provision when she requested information between the time of her

divorce and her remarriage, she would not have remarried.           Because Mrs. Ferris

remarried before the age of 55 and OPM had to comply with the applicable statutory

provision, the board affirmed OPM’s decision denying her survivor benefits.

      This court must affirm decisions of the Merit Systems Protection Board unless

the decision is (1) arbitrary, capricious, an abuse of discretion, or otherwise not in

accordance with the 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). Pursuant to section 8341(h)(3), an annuitant is divested of survivor

benefits upon remarriage prior to becoming 55 years of age. 5 U.S.C. § 8341(h)(3)(B)(i).

Although Mrs. Ferris argues that OPM did not inform her of the termination condition,

she does not dispute that she entered her second marriage before reaching the age of

55. The board was correct in finding that OPM cannot waive the statutory requirement

and grant the annuity. See Office of Pers. Mgmt. v. Richmond, 496 U.S. 414, 416

(1990). Furthermore, even if OPM failed to inform her of the remarriage termination

provision, the board cannot grant survivor benefits based on equitable consideration.




2009-3123                                   2
See Holder v. Office of Pers. Mgmt., 47 F.3d 412, 414 (Fed. Cir. 1995) (“[The survivor]

could not obtain relief even if . . . OPM provided her with unclear or faulty information

concerning whether she need to apply for the annuity.”). Mrs. Ferris argues that her

former husband intended for her to receive survivor benefits, but this intent does not

empower the board to grant her benefits when she is statutorily ineligible to receive

them. Substantial evidence supports the board’s finding that she remarried before the

age of 55.    The board correctly determined that she did not meet the statutory

requirements to receive the survivor annuity.     Therefore, the board’s decision is in

accordance with the law.




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