United States Court of Appeals 

for the Federal Circuit ______________________ 

ROBERT C. DEVLIN,

Petitioner,

v.

OFFICE OF PERSONNEL MANAGEMENT,

Respondent.

______________________ 

2014-3018

______________________ 

Petition for review of the Merit Systems Protection 

Board in No. SF0843130210-I-1.

______________________ 

Decided: September 12, 2014 

______________________ 

 JASON M. WILCOX, Kirkland & Ellis LLP, of Washington, DC, argued for petitioner. 

DOMENIQUE KIRCHNER, Senior Trial Counsel, Commercial Litigation Branch, Civil Division, United States 

Department of Justice, of Washington, DC, argued for 

respondent. With her on the brief were STUART F.

DELERY, Assistant Attorney General, ROBERT E.

KIRSCHMAN JR., Director, and STEVEN J. GILLINGHAM, 

Assistant Director. 

______________________ 

Before NEWMAN, MOORE, and REYNA, Circuit Judges.
2 DEVLIN v. OPM

MOORE, Circuit Judge. 

Robert Devlin appeals from the decision of the Merit 

Systems Protection Board (Board) denying his application 

for Basic Employee Death Benefits (BEDB) pursuant to 5 

U.S.C. § 8442(b)(1)(A) submitted on behalf of his mother’s 

estate. Because the Board properly interpreted 5 U.S.C. 

§ 8442(b)(1)(A) and the Office of Personnel Management’s 

(OPM) implementing regulations, we affirm. 

BACKGROUND

Darlene Devlin had been married for over forty years 

when her husband died. At the time of his death, Mrs. 

Devlin’s husband had been a civilian federal employee for 

nearly six years, entitling Mrs. Devlin to BEDB should 

she submit an application. See 5 U.S.C. §§ 8442(b)(1)(A), 

8466(b). However, Mrs. Devlin died before she could sign 

or file an application for BEDB. Following Mrs. Devlin’s 

death, her son, Mr. Devlin, completed, signed, and filed

an application for BEDB on her behalf. 

OPM denied Mr. Devlin’s application, concluding that

Mrs. Devlin was not entitled to BEDB because she failed 

to submit an application for those benefits before her 

death. Mr. Devlin sought reconsideration, asserting that 

his appointment as a co-administrator of his mother’s 

estate permitted him to sign and file the application for 

BEDB on her behalf. OPM affirmed, and Mr. Devlin 

appealed to the Board. The administrative judge and, 

subsequently, the Board, affirmed. The Board concluded

that, under 5 U.S.C. § 8442(b)(1)(A) and the implementing 

OPM regulations, while the spouse of a federal employee 

may be entitled to BEDB upon the employee’s death, that

spouse’s estate may not apply for those benefits on her 

behalf. Devlin v. Office of Pers. Mgmt., 120 M.S.P.R. 78, 

80-81 (2013). The Board concluded that Mr. Devlin could 

not apply for BEDB on Mrs. Devlin’s behalf. Id. Mr. 

Devlin appeals. We have jurisdiction pursuant to 28 

U.S.C. § 1295(a)(9).
DEVLIN v. OPM 3

DISCUSSION

We must affirm the Board’s holding unless it is “(1) 

arbitrary, capricious, an abuse of discretion, or otherwise 

not in accordance with 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). 

We agree with both parties that 5 U.S.C. 

§ 8442(b)(1)(A) does not clearly answer the question of 

whether a surviving spouse’s estate may apply for BEDB 

on her behalf. The relevant portion of that statute provides: “[i]f an employee dies after completing at least 18 

months of civilian service creditable under section 8411 

and is survived by a widow or widower, the widow or 

widower is entitled to [BEDB].” 5 U.S.C. § 8442(b)(1)(A) 

(emphases added). There is no indication in the statute 

whether Congress intended to limit entitlement to BEDB 

to only the surviving “widow or widower” or to also include the surviving spouse’s estate. 

Given the statute’s silence, we look to the interpretation provided by OPM, the agency Congress charged with 

prescribing regulations to carry out the provisions of 5 

U.S.C. § 8442, to interpret the statute. See 5 U.S.C. 

§ 8461(g). The OPM regulations implementing 5 U.S.C. 

§ 8442 provide that a “current spouse” who meets certain 

requirements “is entitled to the basic employee death 

benefit . . . .” 5 C.F.R. § 843.309. As to the application for 

those benefits, 5 C.F.R. § 843.302 provides: 

A current or former spouse of a deceased retiree, 

employee, or separated employee may file an application for benefits under this subpart, personally or through a representative, at any time within 

30 years after the death of the retiree, employee, 

or separated employee.
4 DEVLIN v. OPM

(emphasis added). A “current spouse” is defined as “a 

living person who is married to the employee . . . at the 

time of the employee’s . . . death.” 5 C.F.R. § 843.102. 

Inserting this definition of current spouse into 5 C.F.R. 

§ 843.302: “[a living person who is married to the employee . . . at the time of the employee’s . . . death] may file an 

application for benefits . . . .” The plain language of the

regulation requires the current spouse to be living at the 

time of his or her application for BEDB.1 We reject Mr. 

Devlin’s contention that this definition only requires the 

current spouse to be living at the time of the employee’s 

death.2 As written, the “living person” requirement is 

separate and distinct from the “married to the employee” 

requirement. While it is true that the regulation allows 

the current spouse to file for benefits “through a representative,” 5 C.F.R. § 843.302, it nonetheless requires the 

representative to be of the current spouse—i.e., of a living 

person. The executor or administrator of an estate is not 

the representative of a living person and thus cannot 

apply for BEDB on behalf of a surviving spouse under 

5 C.F.R. § 843.302. 

1 A “former spouse” is defined as “a living person 

who was married . . . to an employee . . . an whose marriage to the employee . . . was terminated before the death 

of the employee.” 5 C.F.R. § 843.102. Thus, a former 

spouse must also be living at the time of his or her application for BEDB. 

2 Mr. Devlin’s interpretation would be proper if the 

regulation defined current spouse as “a person who is 

married to the employee and is living at the time of the 

employee’s death.” But it does not. His interpretation is 

not consistent with the plain language of the regulation 

and would render the “living person” requirement superfluous: you could not be married to the employee at the 

time of his death unless you were alive at the time of the 

employee’s death. 

 
DEVLIN v. OPM 5

We disagree with Mr. Devlin that OPM’s interpretation is inconsistent with our decision in Cushman v. 

Shinseki, 576 F.3d 1290 (Fed. Cir. 2009). There, we held 

that “[a] veteran is entitled to disability benefits upon a 

showing that he meets the eligibility requirements set 

forth in the governing statute and regulations.” Id. at 

1298 (emphasis added). We concluded that “such entitlement to benefits is a property interest protected by the 

Due Process Clause of the Fifth Amendment to the United 

States Constitution.” Id. In this case, however, Mrs. 

Devlin did not show that she was eligible for BEDB—she 

failed to file an application that would have established 

her eligibility. And filing the application for BEDB was a 

necessary prerequisite for entitlement to those benefits. 

See 5 U.S.C. § 8466 (benefits “shall not be paid . . . unless 

an application therefor is received by the Office”); 5 C.F.R. 

§ 8442(b)(2)(a) (“No benefit is payable under [5 U.S.C. 

§ 8442], until after the claimant has applied for the benefit in the form prescribed by OPM.”). Because she did not 

file the necessary application, Mrs. Devlin was not entitled to BEDB and thus had no protected property interest 

in those benefits. As such, Mrs. Devlin’s estate could have 

no protected property interest in the BEDB. 

We conclude that OPM’s interpretation of 5 U.S.C. 

§ 8442(b)(1)(A), as reflected in its implementing regulations, is reasonable and not contrary to the plain meaning 

of the statute. 

CONCLUSION

We hold that the Board properly interpreted 5 U.S.C. 

§ 8442(b)(1)(A) and OPM’s implementing regulations and

thus affirm. 

AFFIRMED