                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     MARGARET M. BRADLEY,                            DOCKET NUMBER
                  Appellant,                         CH-0831-13-4538-I-1

                  v.

     OFFICE OF PERSONNEL                             DATE: August 6, 2014
       MANAGEMENT,
                   Agency.



                THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Margaret M. Bradley, Euclid, Ohio, pro se.

           Cynthia Reinhold, Washington, D.C., for the agency.


                                           BEFORE

                              Susan Tsui Grundmann, Chairman
                              Anne M. Wagner, Vice Chairman
                                 Mark A. Robbins, Member


                                       FINAL ORDER

¶1         The appellant has filed a petition for review of the initial decision, which
     affirmed the Office of Personnel Management (OPM)’s reconsideration decision
     finding that the appellant was not entitled to a survivor annuity as a former
     spouse. Generally, we grant petitions such as this one only when: the initial

     1
        A nonprecedential order is one that the Board has determined does not add
     significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
     but such orders have no precedential value; the Board and administrative judges are not
     required to follow or distinguish them in any future decisions. In contrast, a
     precedential decision issued as an Opinion and Order has been identified by the Board
     as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
                                                                                       2

     decision contains erroneous findings of material fact; the initial decision is based
     on an erroneous interpretation of statute or regulation or the erroneous application
     of the law to the facts of the case; the judge’s rulings during either the course of
     the appeal or the initial decision were not consistent with required procedures or
     involved an abuse of discretion, and the resulting error affected the outcome of
     the case; or new and material evidence or legal argument is available that, despite
     the petitioner’s due diligence, was not available when the record closed.       See
     Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R.
     § 1201.115). After fully considering the filings in this appeal, and based on the
     following points and authorities, we conclude that the petitioner has not
     established any basis under section 1201.115 for granting the petition for review.
     Therefore, we DENY the petition for review and AFFIRM the initial decision,
     which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
¶2        The appellant filed an initial appeal challenging OPM’s reconsideration
     decision, which found that she was not entitled to a survivor annuity under the
     Civil Service Retirement System (CSRS) as the former spouse of the late Leroy
     Bradley. Initial Appeal File (IAF), Tab 1. In particular, the decision indicated
     that the appellant was not eligible for a survivor annuity because Mr. Bradley was
     not eligible for retirement at the time of his death in April 1978, and the Bradleys
     divorced in 1974, when “divorced spouses of deceased employees were not
     eligible for annuity benefits.” Id. at 8. In her appeal, the appellant alleged that
     she “deserve[d]” a survivor annuity because:       (1) “Leroy was active with the
     government for 22 years”; (2) “[h]e was eligible to retire”; (3) she worked until
     she was 75 years old; and (4) she is in need of the benefits to pay for medical
     expenses.   Id. at 1-2, 5.    In response, OPM affirmed its position from the
     reconsideration decision.    IAF, Tab 4 at 4.    The appellant did not request a
     hearing, IAF, Tab 1; see IAF, Tab 5, but submitted letters and other evidence in
     support of her arguments, see IAF, Tab 1, Tab 8.
                                                                                         3

¶3         In his initial decision, the administrative judge based his finding on the
     following undisputed facts: the appellant married Leroy Bradley in 1953; they
     were divorced in 1974; Mr. Bradley was shot and killed in April 1978; at the time
     of his death, Mr. Bradley was 51 years old and employed by the United States
     Postal Service; and Mr. Bradley had 22 years of CSRS service credit.           Initial
     Decision (ID) at 2. The administrative judge found that, because Mr. Bradley did
     not qualify for retirement due to his age and length of creditable CSRS service at
     the time of his death, the appellant, likewise, was ineligible to receive a survivor
     annuity. ID at 3. Because OPM correctly denied the appellant’s application for a
     survivor annuity as a former spouse, the administrative judge affirmed OPM’s
     reconsideration decision. ID at 4.
¶4         In her timely filed petition for review, the appellant reasserts her claims that
     she is entitled to a survivor annuity as a former spouse of Mr. Bradley. Petition
     for Review (PFR) File, Tab 1 at 3-6. Specifically, the appellant alleges that she
     “deserves” the annuity because: (1) “Leroy was a 22 year employee at the [Post
     Office] and also spent 3 years in the army”; (2) Leroy’s age at the time of his
     death should not have been considered in determining her entitlement to an
     annuity; and (3) she is in need of the annuity to cover her medical expenses. Id.
     at 4, 6, 10. OPM did not respond. See PFR File.
¶5         As the administrative judge correctly identified, the appellant has the
     burden of proving her entitlement to a survivor annuity by preponderant evidence.
     See Cheeseman v. Office of Personnel Management, 791 F.2d 138, 141 (Fed. Cir.
     1986); Gilliam v. Office of Personnel Management, 91 M.S.P.R. 352, ¶ 9 (2002);
     5 C.F.R. § 1201.56(a)(2).      Based upon our review of the relevant statutory
     provisions and case law, we agree with the administrative judge that the appellant
     has not shown that she is legally entitled to a survivor annuity.
¶6         The Spouse Equity Act, Pub. L. No. 98-615, § 4(b)(1), as amended,
     provides that “a former spouse of an employee or Member who retired before
     May 7, 1985, or who died after becoming eligible to retire before such date . . . ”
                                                                                             4

     is entitled to a survivor annuity. 2        See 5 U.S.C. § 8341 note.            As the
     administrative judge correctly stated, OPM’s regulations mirror the statutory
     provisions of the Spouse Equity Act.        See 5 C.F.R. § 831.683(a).       In order to
     perfect a claim to an annuity as a former spouse, the appellant must have been the
     spouse of an “employee” who “retired” before May 7, 1985, or an “employee”
     who died before May 7, 1985, after becoming “eligible to retire.” 3 Dickerson v.
     Office of Personnel Management, 47 M.S.P.R. 109, 112 (1991). To be eligible to
     retire under the CSRS, the “employee” must be: (1) age 55 with at least 30 years
     of service; (2) age 60 with at least 20 years of service; or (3) age 62 with at least
     5 years of service. See 5 U.S.C. § 8336(a), (b), (f).
¶7         By the appellant’s own evidence, she does not meet these basic eligibility
     requirements. Because Mr. Bradley was only age 51 with 22 years of service
     when he died, PFR File, Tab 1 at 4, he was not retirement eligible. 4



     2
      The Civil Service Retirement Spouse Equity Act of 1984, Pub. L. No. 98-615, 98 Stat.
     3195, as amended by The Federal Employees Benefits Improvement Act, Pub. L.
     No. 99-251, § 201, 100 Stat. 14, 20 (1986).
     3
       On February 27, 1986, Congress amended the Act, which eliminated the requirement
     that the dissolution of the marriage had to occur after September 14, 1978, if certain
     conditions were met. See Pub. L. No. 99-251, § 201(b), 100 Stat. 22; Heffield v. Office
     of Personnel Management, 32 M.S.P.R. 94, 95-96 (1987). Therefore, applicants like
     the appellant, who divorced in 1974, are no longer per se barred from receiving benefits
     based solely on the date of divorce.
     4
       As below, IAF, Tab 1 at 5, the appellant argues on review that Mr. Bradley’s 3 years
     of military service should be credited for retirement purposes, see PFR File, Tab 1 at 4.
     The agency did not refute this argument below or on review, and the administrative
     judge did not address it in his initial decision. We briefly address this claim now
     because, under certain circumstances, military service can constitute creditable service,
     see, e.g., McCarthy v. Office of Personnel Management, 41 M.S.P.R. 327, 329 (1989).
     However, even assuming for the sake of argument that Mr. Bradley’s military service
     qualified and raises his years of service to 25, his years of creditable service are still
     below the required 30 years, and he lacked the requisite age to retire at the time of his
     death. See 5 U.S.C. § 8336(a), (b), (f). Thus, we find that the administrative judge’s
     failure to consider the effect of Mr. Bradley’s military service on his retirement
     eligibility did not prejudice the appellant’s substantive rights.        See Panter v.
     Department of the Air Force, 22 M.S.P.R. 281, 282 (1984) (an adjudicatory error that is
                                                                                               5

     Consequently, because he was ineligible to receive retirement benefits, by
     extension, the appellant is ineligible to receive a survivor annuity based on those
     benefits. As a result, we agree with the administrative judge that the appellant is
     not entitled to a survivor annuity as a former spouse of Mr. Bradley, under the
     provisions of the Spouse Equity Act.
¶8         While we are mindful of the appellant’s unfortunate situation, equitable
     considerations cannot justify payment of an annuity benefit when the applicant
     fails to the meet the statutory requirements, which are established by Congress.
     See Office of Personnel Management v. Richmond, 496 U.S. 414, 416, 434
     (1990). Therefore, we agree with the administrative judge that OPM correctly
     denied the appellant’s application for a survivor annuity as a former spouse, and
     we find that the appeal was properly dismissed on that basis.

                      NOTICE TO THE APPELLANT REGARDING
                         YOUR FURTHER REVIEW RIGHTS
           You have the right to request review of this final decision by the United
     States Court of Appeals for the Federal Circuit. You must submit your request to
     the court at the following address:
                                 United States Court of Appeals
                                     for the Federal Circuit
                                   717 Madison Place, N.W.
                                    Washington, DC 20439

           The court must receive your request for review no later than 60 calendar
     days after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec.
     27, 2012). If you choose to file, be very careful to file on time. The court has
     held that normally it does not have the authority to waive this statutory deadline
     and that filings that do not comply with the deadline must be dismissed. See
     Pinat v. Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).


     not prejudicial to a party’s substantive rights provides no basis for reversal of an initial
     decision).
                                                                                  6

     If you need further information about your right to appeal this decision to
court, you should refer to the federal law that gives you this right. It is found in
Title 5 of the United States Code, section 7703 (5 U.S.C. § 7703) (as rev. eff.
Dec. 27, 2012). You may read this law as well as other sections of the United
States     Code,   at   our   website,   http://www.mspb.gov/appeals/uscode.htm.
Additional information is available at the court's website, www.cafc.uscourts.gov.
Of particular relevance is the court's "Guide for Pro Se Petitioners and
Appellants," which is contained within the court's Rules of Practice, and Forms 5,
6, and 11.
         If you are interested in securing pro bono representation for your court
appeal, you may visit our website at http://www.mspb.gov/probono for a list of
attorneys who have expressed interest in providing pro bono representation for
Merit Systems Protection Board appellants before the court. The Merit Systems
Protection Board neither endorses the services provided by any attorney nor
warrants that any attorney will accept representation in a given case.




FOR THE BOARD:                            ______________________________
                                          William D. Spencer
                                          Clerk of the Board
Washington, D.C.
