Gerda M. Horton, Petitioner v. Office of Personnel Management, Respondent, 954 F.2d 734 (Fed. Cir. 1992)

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US Court of Appeals for the Federal Circuit - 954 F.2d 734 (Fed. Cir. 1992) Jan. 22, 1992

Before PLAGER, LOURIE and CLEVENGER, Circuit Judges.


DECISION

PER CURIAM

Gerda M. Horton appeals from the May 13, 1991 Initial Decision of the Administrative Judge (AJ) in Docket No. SE08319110263, which became the final decision of the Merit Systems Protection Board (MSPB or Board) on June 17, 1991. We affirm.

DISCUSSION

In order to qualify for a survivor annuity under the Spouse Equity Act of 1984, Pub. L. No. 98-615, § 4(b) (1) (B), codified as 5 U.S.C.A. § 8341 (1988 & Supp.1991), Horton must demonstrate that she was married to the deceased for at least ten years during periods of creditable service, that she had not remarried before the age of fifty-five, that she filed an application with the Office of Personnel Management (OPM) on or before May 7, 1989, that she be at least fifty of age on May 7, 1987, and that there is no surviving spouse or other former spouse who is entitled to the annuity. Horton's first correspondence with OPM was dated November 29, 1990. Petitioner Attachment 5. OPM denied her application as untimely on January 21, 1991 and February 27, 1991. Horton appealed to the MSPB, but the denial of benefits was upheld. She now appeals the decision of the MSPB to this court, requesting that the May 7, 1989 deadline be waived in her case.

The Spouse Equity Act requires an application to be filed with OPM on or before May 7, 1989. Horton did not comply with this requirement. The fact that she did not know of that requirement prior to that date does not alter the applicability of OPM v. Richmond, 110 S. Ct. 2465, reh'g denied, 111 S. Ct. 5 (1990) and does not give this Court the authority to circumvent the explicit instructions of Congress.

We may not overturn the Board's decision unless we find it to be arbitrary, capricious, an abuse of discretion, contrary to law, or unsupported by substantial evidence. 5 U.S.C. § 7703(c). Since the MSPB correctly upheld OPM's denial of Horton's untimely application, we must affirm.

No costs.