UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

ANTON WILBERT JUDGE,

Appellant,

v.

OFFICE OF PERSONNEL 

MANAGEMENT,

Agency.

DOCKET NUMBER

DC-0843-15-0325-I-1

DATE: September 9, 2015

THIS FINAL ORDER IS NONPRECEDENTIAL*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 * A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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).
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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 
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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. 
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¶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).
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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:

Washington, D.C.

______________________________

William D. Spencer

Clerk of the Board