. NOTE: Pursuant to Fed. Cir . R. 47.6, this disposition is not citable as precedent. It is a public record 

## United States Court of Appeals for the Federal Circuit
05-3333 STEPHEN M. BUTLER, SR.,

And NOREEN T. BUTLER, Petitioners,

v. OFFICE OF PERSONNEL MANAGEMENT, Respondent.

__________________ _________ DECIDED: February 21, 2006

__________________ _________ Before RADER, SCHALL, and GAJARSA, Circuit Judges

. RADER, Circuit Judge

. The Merit Systems Protection Board (B oard) denied petitioners’ motion to intervene in a proceeding between Theresa Butler, the former spouse of a deceased federal employee, and the Office of Personnel Management (OPM). Butler v. Merit Sys. Protection Bd. , 98 M.S.P.R. 655 (2005). Becaus e petitioners, Stephen Butler and Noreen Butler (children of t he deceased federal employee Joseph Butler), did not seek to timely intervene, this court affirms

. I. Theresa and Joseph Butler divorced in 1998. Joseph Butler died on July 29, 2002. Following his death in 2 002, Theresa Butler timely filed an application with theOPM for a Civil Servic e Retirement System (CSRS) survivor annuity. OPM denied that application because it found that the state court divorce decree did not expressly identify the CSRS s u rvivor annuity, but said only that Theresa Butler would “receiv e from [the deceased federal empl oyee] survivor benefits . . . from his pension.” On November 27, 2002, Theresa Butler timely appealed OPM’s decision to the B oard. On Decem ber 24, 2002, petitioners were c opied on and did re ceive a letter from OPM to the administ r ative j udge at the Board. This le tter advised petitioners that Theresa Butler was appealing O P M’s decis ion to deny her the CSRS surviv or annuity. The letter stated that “[s]ince . . . this appeal may affect the ri ghts and interests of [petitioners], we request that they be advised of a right to intervene .” (E mphasis in original.) As a result, on January 6, 2003, the Board s ent a Notice (the Notice) t o petitioners informing them that their rights in the underlying proceeding may be affected by the appeal to the Board. Only one pet itioner denies receiving the Notice. On March 21, 2003, the Board reversed OP M’s decis ion to deny Theresa Butler’s CSRS sur v ivor annuity claim. The Board hel d that the statute’s requirement that a divorce decree “expressly prov ide for” the CSRS surviv or annuity did not req u ire “magic words,” but only that the intent to provide the surv ivor annuit y be c l ear , definitive, explic it, plain, direct and unmistakable, not dubious or ambiguous. 5 U.S. C. § 8341(h)(1) (West 2005). Thus, the Board f ound the divorce decree sufficient to satisfy the statute. Becaus e petitioners did not intervene in the underlying proc eeding, they did not receive a copy of the B oard’s March 21, 2003 order. Howev e r, approximately fifteen months following entry of the Board order, petitioners filed a motion to in tervene, challenging Theresa Bu tler’s entitlement to the

05-3333 2CSRS survivor annuit y . Because petitioners’ motion was untimely, the Board denied it. The Board noted that the evidence on whic h Petitioners arguments relied would mak e no difference, even if it had allowed their intervention. Butler , 98 M.S.P.R. at 659. Nonetheles s , Petitioners appeal.
II. This court has jurisdiction to review t he Board’s decision pursuant to 28 U.S

. C. § 1295(a)(9). The scope of review in an appeal from a decis ion of the Board is limited. This court is required to affirm the Board’s decision unless it is: (1) arbitrary, capricious, an abuse of discr etion, or ot herwise not in acc o rdanc e with law; (2) obtained without procedures required by law, rule, or regulation having been followed; or (3) unsupported by substantial ev idence.
5 U.S.C. § 7703(c) (1988); Cheeseman v. Office of Pers. Mgm t

. , 791 F.2d 138, 140 (Fed. Cir. 1986), cert. denied , 479 U.S. 1037 (1987). The Board’s denial of petitioner’s motion to intervene was supported by substantial evidenc e, is in acc o rdance with the law, and proper pr ocedures r e quired by the law were followed. Petitioners could pet ition the administrative judge at the Board for intervention as “per missive” int e rvenors. 5 C.F.R. § 1201.34(a) (2 005). And in their motion, they had to explain the reason for in tervention. 5 C.F.R. § 1201. 34(c)(1). A motion for permission to intervene will be gr anted where the requeste r will be affected directly by the outcome of the proceeding. 5 C.F.R. § 1201.34(c)(2). Permissive intervenors have the same rights and duties as parties, except they do not have a n

05-3333 3independent right to a hearing; and they may participate onl y on the iss ues affecting them. 5 C.F.R. § 1201.34(d). In the Notice sent by the Board, the administrative judge gave the intervenors fifteen day s to intervene. They missed the fi fteen-day deadline. By the time petitioners sought to intervene, the outcom e of the underlying proceeding between T h eresa Butler and OPM was already final. Unless a petition for review of an init ial decis ion is filed by thirty-five days follo wing its issu ance, it be comes final. 5 C.F.R. § 1201. 113. The March 21, 2003 Board decis ion becam e “final” on April 25, 2003. Id. Petitioners filed their motion to intervene a pproximately fourteen months after the Board decision had become final. At that point, the Board had no further jurisdiction over the case. 5 C.F.R. § 1201.112. This cour t, therefore, affirms the dec ision of the Board.

05-3333 4