UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

JOHN V. SULLIVAN,

Appellant,

v.

OFFICE OF PERSONNEL 

MANAGEMENT,

Agency.

DOCKET NUMBER

DC-0831-21-0314-I-1

DATE: August 10, 2023

THIS FINAL ORDER IS NONPRECEDENTIAL1

Michael Sullivan, Springfield, Virginia, for the appellant.

Tanisha Elliott Evans, Esquire, Washington, D.C., for the agency.

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, Member

FINAL ORDER

¶1 The agency has filed a petition for review of the initial decision, which 

reversed the reconsideration decision of the Office of Personnel Management 

(OPM) affirming an OPM initial decision that calculated the appellant’s survivor 

annuity as 50% of his annuity. For the reasons discussed below, we GRANT the 

 

1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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

agency’s petition for review and VACATE and REVERSE the initial decision, 

finding that OPM’s calculation of the appellant’s survivor annuity as 50% of his 

annuity was correct. 

DISCUSSION OF ARGUMENTS ON REVIEW

¶2 The appellant, who had been covered by the Civil Service Retirement 

System (CSRS) for over 28 years before electing Federal Employee Retirement 

System (FERS) coverage in 1998, retired from Federal service in 20122and began 

receiving an annuity. Initial Appeal File (IAF), Tab 6 at 23, 43-50. His annuity 

was reduced by 10% pursuant to his election of a maximum survivor annuity for 

his spouse, as required under the FERS provision codified at 5 U.S.C. 

§ 8419(a)(1). Id. at 23, 43, 46. After OPM informed him that the survivor 

annuity he had provided for would be calculated as 50% of his unreduced gross 

annuity, the appellant replied that the survivor annuity should instead be 

calculated by applying the 55% rate for survivor annuities under CSRS and the 

50% rate for survivors annuities under FERS in proportion to his respective years 

of employment under those two systems, which would yield a higher sum than 

that derived by OPM. Id. at 38-42. OPM issued the appellant an initial decision

confirming that as a “FERS case with a CSRS component,” the survivor annuity

was appropriately calculated as 50% of his basic annuity. 3 Id. at 23-24. The

appellant requested reconsideration, and OPM affirmed its initial decision in a 

reconsideration decision which the appellant appealed to the Board, declining a 

hearing. Id. at 9-11, 22; IAF, Tab 1 at 2.

 

2

Though the initial decision incorrectly stated that the appellant retired in 2013, Initial 

Appeal File, Tab 16, Initial Decision at 2, this error is immaterial to the outcome of the

appeal.

3 OPM issued a separate initial decision, which is not at issue in this appeal, pertaining 

to the effect of cost-of-living adjustments on the potential survivor annuity based on the 

appellant’s service. IAF, Tab 6 at 37.
3

¶3 During the appeal, the appellant cited 5 C.F.R. § 846.304(a)(1) and (2),

which cover the computation of FERS annuities for persons with CSRS service, 

to support his argument that OPM was required to apply the CSRS survivor 

annuity provisions, including the 55% rate, to the CSRS component of his 

service. IAF, Tab 13 at 4-8. The administrative judge agreed and reversed

OPM’s reconsideration decision in the Board’s initial decision. IAF, Tab 16, 

Initial Decision (ID) at 9, 12. 

¶4 In its petition for review, OPM argues, among other things, that the Board’s 

initial decision conflicts with provisions of the Federal Employees’ Retirement 

System Act of 1986 (FERSA), 5 U.S.C. § 8331 note, including § 302(a)(4) of 

FERSA, which excludes the application of 5 U.S.C. § 8339(j)—a provision 

setting forth annuity reductions to provide for survivor annuities under 

CSRS—from the computation of annuities of CSRS-covered individuals electing 

FERS coverage. Petition for Review (PFR) File, Tab 1 at 5, 15-16 (citing 

Pub. L. No. 99-335, § 302(a), (a)(4), 100 Stat. 514, 601, 603 (1986)). The 

appellant filed a response arguing, among other things, that OPM’s argument 

invoking FERSA erroneously “conflates” the annuity reduction for a CSRS 

survivor annuity in 5 U.S.C. § 8339(j) with the 55% CSRS survivor annuity rate,

which FERSA does not exclude from the computation of the survivor annuity

based on his service. PFR File, Tab 3 at 10-11. 

OPM correctly applied the 50% FERS rate to compute the appellant’s survivor 

annuity.

¶5 The parties’ dispute centers on differing interpretations of regulations 

promulgated to implement FERSA—5 C.F.R. § 846.304(a)(1) and (2) in 

particular, see 52 Fed. Reg. 19232-33, 19237-38 (May 21, 1987)—which the 

parties do not dispute apply to the appellant’s election of FERS coverage in 1998. 

PFR File, Tab 1 at 8-9, Tab 3 at 7-8. Subsection (a)(1) of 5 C.F.R. § 846.304

states that the basic annuity of an employee who elected FERS coverage “is an 

amount equal to the sum of the accrued benefits under CSRS” and “the accrued 
4

benefits under FERS . . . .” Subsection (a)(2), meanwhile, states that the 

computation method described in subsection (a)(1) “is used in computing basic 

annuities . . . survivor annuities . . . and the basic annuities for disability 

retirement . . . .”

¶6 To reiterate, the appellant’s argument—with which the administrative judge 

agreed—is that, just as 5 C.F.R. § 846.304(a)(1) requires that his basic annuity be

computed with its CSRS and FERS components calculated under their respective 

statutes, 5 C.F.R. § 846.304(a)(2) requires that the survivor annuity based on his 

service be computed with the portion accrued while he was covered by CSRS 

calculated using the 55% rate for CSRS survivor annuities, and the portion 

accrued while he was covered by FERS calculated using the 50% rate for FERS 

survivor annuities. PFR File, Tab 3 at 4-5; ID at 9. However, the appellant’s and 

administrative judge’s interpretation of 5 C.F.R. § 846.304(a) must fail because it 

contradicts applicable provisions of FERSA.

¶7 Within § 302 of FERSA, which covers the effects of an election to become 

subject to FERS, § 302(a) states that “[a]ll provisions” of the U.S. Code covering 

FERS “including those relating to . . . survivor benefits, and any reductions to 

provide for survivor benefits” shall apply to any individual who elects FERS 

coverage, unless the FERS statutes are inconsistent with provisions articulated 

elsewhere in § 302(a). One such provision under § 302(a) which restores the 

applicability of the CSRS statutes is § 302(a)(3)(A)(i), which provides that, if an

individual electing coverage under FERS becomes entitled to an annuity or dies 

leaving a survivor entitled to benefits, the individual’s annuity “shall be equal to 

the sum of the individual’s accrued benefits under [CSRS] (as determined under 

[§ 302(a)(4)]) and the individual’s accrued benefits under [FERS] (as determined 

under [§ 302(a)(5)]).” Based on their similarity in language and effect, this is 

clearly the statutory provision which 5 C.F.R. § 846.304(a)(1) was promulgated

to implement.
5

¶8 Section 302(a)(4) of FERSA, in turn, states in relevant part that “[a]ccrued 

benefits under this paragraph shall be computed in accordance with applicable 

provisions” of the U.S. Code covering CSRS, “but without regard to” 5 U.S.C. 

§ 8339(j). Section 8339(j)(1) provides for a reduction in a CSRS annuity “in 

order to provide a survivor annuity” under 5 U.S.C. § 8341(b) at 55% of the 

decedent’s annuity. Thus, because § 302(a)(4) of FERSA declares the funding 

mechanism in 5 U.S.C. § 8339(j) for a CSRS survivor’s annuity inapplicable to

individuals electing FERS coverage, a survivor annuity based on the 55% rate 

under 5 U.S.C. § 8341(b) cannot be “provided” for the appellant’s spouse. 

¶9 It is not possible to read the described exclusion of 5 U.S.C. § 8339(j) in 

§ 302(a)(4) of FERSA as anything other than providing that, for CSRS-covered 

individuals electing FERS coverage, CSRS survivor annuities under 5 U.S.C. 

§ 8341(b)—including the 55% rate—are not available. If 5 U.S.C. § 8339(j)(1) is 

insufficiently descriptive as to the purpose of the annuity reduction it prescribes, 

5 U.S.C. § 8339(j)(5)(A) and (B) sets forth the circumstances for the termination 

of “[a]ny reduction in an annuity for the purpose of providing a survivor annuity” 

for an annuitant’s current or former spouse, respectively. Thus, having found that 

CSRS statutes covering the calculation of survivor annuities do not apply to 

CSRS-covered individuals electing FERS coverage, we are left with the statement 

in § 302(a) of FERSA—that FERS statutes relating to survivor benefits and 

reductions to provide for survivor benefits shall apply to such individuals. 

Adopting the appellant’s position that reductions to an annuity made “in order to 

provide” a CSRS survivor annuity should not be “conflated” with the 55% CSRS 

survivor annuity rate would ignore the interdependence that 5 U.S.C. § 8339(j) 

establishes between those elements, and afford his survivor a windfall that, being 

contrary to statute, we are without authority to permit. Office of Personnel 

Management v. Richmond, 496 U.S. 414, 416 (1990) (“[P]ayments of money from 

the Federal Treasury are limited to those authorized by statute . . . .”).
6

NOTICE OF APPEAL RIGHTS4

You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By 

statute, the nature of your claims determines the time limit for seeking such 

review and the appropriate forum with which to file. 5 U.S.C. § 7703(b). 

Although we offer the following summary of available appeal rights, the Merit 

Systems Protection Board does not provide legal advice on which option is most 

appropriate for your situation and the rights described below do not represent a 

statement of how courts will rule regarding which cases fall within their 

jurisdiction. If you wish to seek review of this final decision, you should 

immediately review the law applicable to your claims and carefully follow all 

filing time limits and requirements. Failure to file within the applicable time 

limit may result in the dismissal of your case by your chosen forum.

Please read carefully each of the three main possible choices of review 

below to decide which one applies to your particular case. If you have questions 

about whether a particular forum is the appropriate one to review your case, you 

should contact that forum for more information. 

(1) Judicial review in general. As a general rule, an appellant seeking 

judicial review of a final Board order must file a petition for review with the U.S. 

Court of Appeals for the Federal Circuit, which must be received by the court 

within 60 calendar days of the date of issuance of this decision. 5 U.S.C. 

§ 7703(b)(1)(A). 

If you submit a petition for review to the U.S. Court of Appeals for the 

Federal Circuit, you must submit your petition to the court at the 

following address: 

 

4

Since the issuance of the initial decision in this matter, the Board may have updated 

the notice of review rights included in final decisions. As indicated in the notice, the 

Board cannot advise which option is most appropriate in any matter.
7

U.S. Court of Appeals 

for the Federal Circuit 

717 Madison Place, N.W. 

Washington, D.C. 20439 

Additional information about the U.S. Court of Appeals for the Federal 

Circuit 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, 10, and 11. 

If you are interested in securing pro bono representation for an appeal to 

the U.S. 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 

Board neither endorses the services provided by any attorney nor warrants that 

any attorney will accept representation in a given case. 

(2) Judicial or EEOC review of cases involving a claim of 

discrimination. This option applies to you only if you have claimed that you 

were affected by an action that is appealable to the Board and that such action 

was based, in whole or in part, on unlawful discrimination. If so, you may obtain 

judicial review of this decision—including a disposition of your discrimination 

claims—by filing a civil action with an appropriate U.S. district court (not the 

U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you 

receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems 

Protection Board, 582 U.S. 420 (2017). If you have a representative in this case, 

and your representative receives this decision before you do, then you must file 

with the district court no later than 30 calendar days after your representative

receives this decision. If the action involves a claim of discrimination based on 

race, color, religion, sex, national origin, or a disabling condition, you may be 

entitled to representation by a court-appointed lawyer and to waiver of any 
8

requirement of prepayment of fees, costs, or other security. See 42 U.S.C. 

§ 2000e-5(f) and 29 U.S.C. § 794a. 

Contact information for U.S. district courts can be found at their respective 

websites, which can be accessed through the link below: 

http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx. 

Alternatively, you may request review by the Equal Employment 

Opportunity Commission (EEOC) of your discrimination claims only, excluding 

all other issues. 5 U.S.C. § 7702(b)(1). You must file any such request with the 

EEOC’s Office of Federal Operations within 30 calendar days after you receive

this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, 

and your representative receives this decision before you do, then you must file 

with the EEOC no later than 30 calendar days after your representative receives

this decision. 

If you submit a request for review to the EEOC by regular U.S. mail, the 

address of the EEOC is: 

Office of Federal Operations 

Equal Employment Opportunity Commission 

P.O. Box 77960 

Washington, D.C. 20013 

If you submit a request for review to the EEOC via commercial delivery or 

by a method requiring a signature, it must be addressed to: 

Office of Federal Operations 

Equal Employment Opportunity Commission 

131 M Street, N.E. 

Suite 5SW12G 

Washington, D.C. 20507 

(3) Judicial review pursuant to the Whistleblower Protection

Enhancement Act of 2012. This option applies to you only if you have raised 

claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or 

other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). 

If so, and your judicial petition for review “raises no challenge to the Board’s 
9

disposition of allegations of a prohibited personnel practice described in section 

2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), 

(B), (C), or (D),” then you may file a petition for judicial review either with the 

U.S. Court of Appeals for the Federal Circuit or any court of appeals of 

competent jurisdiction.5 The court of appeals must receive your petition for 

review within 60 days of the date of issuance of this decision. 5 U.S.C. 

§ 7703(b)(1)(B). 

If you submit a petition for judicial review to the U.S. Court of Appeals for 

the Federal Circuit, you must submit your petition to the court at the 

following address: 

U.S. Court of Appeals 

for the Federal Circuit 

717 Madison Place, N.W. 

Washington, D.C. 20439 

Additional information about the U.S. Court of Appeals for the Federal 

Circuit 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, 10, and 11. 

If you are interested in securing pro bono representation for an appeal to 

the U.S. 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 

Board neither endorses the services provided by any attorney nor warrants that 

any attorney will accept representation in a given case. 

 

5

The original statutory provision that provided for judicial review of certain 

whistleblower claims by any court of appeals of competent jurisdiction expired on 

December 27, 2017. The All Circuit Review Act, signed into law by the President on 

July 7, 2018, permanently allows appellants to file petitions for judicial review of 

MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals 

for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. 

The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195, 

132 Stat. 1510. 
10

Contact information for the courts of appeals can be found at their 

respective websites, which can be accessed through the link below: 

http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx. 

 

 

FOR THE BOARD:

Washington, D.C.

/s/ for

Jennifer Everling

Acting Clerk of the Board