                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     ANTON WILBERT JUDGE,                            DOCKET NUMBER
                 Appellant,                          DC-0843-15-0325-I-1

                  v.

     OFFICE OF PERSONNEL                             DATE: September 9, 2015
       MANAGEMENT,
                   Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL *

           Anton Wilbert Judge, Oxon Hill, Maryland, pro se.

           Roxann Johnson, Washington, D.C., for the agency.


                                           BEFORE

                              Susan Tsui Grundmann, Chairman
                                 Mark A. Robbins, Member


                                       FINAL ORDER

¶1         The appellant has filed a petition for review of the initial decision, which
     affirmed the final decision of the Office of Personnel Management (OPM)
     denying the appellant’s request for payment of his brother’s lump sum death
     benefit under the Federal Employees’ Retirement System (FERS). Generally, we


     *
        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     grant petitions such as this one only when: the initial 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).

                     DISCUSSION OF ARGUMENTS ON REVIEW
¶2        The appellant’s brother (the decedent), a former Federal employee covered
     under FERS, passed away on July 18, 2014, prior to filing a written designation
     of beneficiary with OPM. Initial Appeal File (IAF), Tab 6 at 15, 19-25. On
     August 11, 2014, the Probate Division of the Superior Court of the District of
     Columbia granted the appellant unlimited powers as the personal representative
     and administrator of the decedent’s estate.     Id. at 9.   Shortly thereafter, the
     appellant filed an application with OPM seeking payment of the decedent’s lump
     sum death benefit. Id. at 10-13. In the application, the appellant indicated that he
     and his other living brother were the decedent’s only heirs and provided a copy of
     their mother’s death certificate.   Id. at 10, 14.   In a December 2, 2014 final
     decision, OPM determined that the appellant was not eligible to receive the
     decedent’s lump sum death benefit because, pursuant to the order of precedence
                                                                                     3

     established by 5 U.S.C. § 8432, the decedent’s father, if living, took precedence
     over the appellant. Id. at 6.
¶3         The appellant appealed OPM’s final decision to the Board, asserting again
     that he was the decedent’s only heir and that he and his siblings never knew their
     biological father. IAF, Tab 1. The appellant did not indicate that he wanted a
     hearing. Id. The administrative judge informed the appellant of his burden to
     establish his entitlement to the decedent’s lump sum death benefit and allowed
     the parties time to submit closing evidence and argument; the appellant did not
     make an additional submission. IAF, Tab 8 at 1-2. In an initial decision, the
     administrative judge affirmed OPM’s final decision, finding that the decedent’s
     father’s claim to the lump sum death benefit took precedence over the appellant’s
     claim and that unless the father’s death was established by provision of a death
     certificate, OPM had no authority to grant the appellant’s claim for benefits.
     IAF, Tab 9, Initial Decision (ID). The appellant has filed a petition for review,
     and OPM has responded in opposition. Petition for Review (PFR) File, Tabs 3, 6.
¶4         Under 5 U.S.C. § 8342(d), a lump sum annuity benefit is paid according to
     the order of precedence set forth in section 8342(c). The order of precedence in
     the payment of a lump sum benefit is: (1) the designated beneficiaries; (2) a
     widow or widower; (3) children and descendants of deceased children by
     representation; (4) parents or the survivor of them; (5) executor or administrator
     of the estate; and (6) other next of kin. See 5 U.S.C. § 8342(c). The parties do
     not contend, nor is there any evidence to suggest, that the appellant designated a
     beneficiary prior to his death or that he had a spouse or children. Thus, pursuant
     to section 8342(c), the decedent’s parents have the next highest claim to the
     benefit.   The appellant, as the administrator of the decedent’s estate, is only
     eligible to receive the lump sum benefit if the decedent’s parents were both
     deceased on the date their title to the payment arose, i.e., the date of the
     decedent’s death. See id.
                                                                                     4

¶5        As noted above, the appellant has submitted the decedent’s mother’s death
     certificate but has not furnished evidence that the decedent’s father is deceased.
     On review, the appellant states again that he and the decedent never knew their
     biological father and that he is the only heir and personal representative of the
     decedent’s estate. PFR File, Tab 3 at 1-3. Although we sympathize with the
     appellant’s situation, the administrative judge correctly explained that OPM has
     no authority to exercise discretion in its application of the order of precedence
     established by statute.   ID at 2-3 (citing Landsberger v. Office of Personnel
     Management, 50 M.S.P.R. 13, 17 (1991), aff’d, 956 F.2d 1174 (Fed. Cir. 1992)
     (Table)). Therefore, pursuant to 5 U.S.C. § 8342(c), in the absence of a death
     certificate showing that the decedent’s father predeceased him, OPM correctly
     determined that the appellant is not eligible to receive payment of the decedent’s
     lump sum death benefit.     Accordingly, we find no basis to disturb the initial
     decision affirming OPM’s final decision.

                     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).
                                                                                     5

     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 an appeal to the
United States Court of Appeals for the Federal Circuit, you may visit our website
at   http://www.mspb.gov/probono for          information   regarding     pro     bono
representation for Merit Systems Protection Board appellants before the Federal
Circuit. 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.
