Evelyn Almaden v. Office of Personnel Management

NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2009-3300
EVELYN ALMADEN,
Petitioner,
v.
OFFICE OF PERSONNEL MANAGEMENT,
Respondent.
Evelyn Almaden, of Garden Grove, California, pro se.
Stacey K. Grigsby, Trial Attorney, Commercial Litigation Branch, Civil Division,
United States Department of Justice, of Washington, DC, for respondent. With her on the
brief were Tony West, Assistant Attorney General, Jeanne E. Davidson, Director, and
Steven J. Gillingham, Assistant Director. Of counsel on the brief was Paul St. Hillaire,
Attorney, Office of Personnel Management, of Washington, DC.
Appealed from: Merit Systems Protection Board

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NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2009-3300
EVELYN ALMADEN,
Petitioner,
v.
OFFICE OF PERSONNEL MANAGEMENT,
Respondent.
Petition for review of the Merit Systems Protection Board in
SF-0843-09-0468-I-1.
___________________________
DECIDED: January 15, 2010
___________________________
Before RADER, GAJARSA, and DYK, Circuit Judges.
PER CURIAM.
Evelyn Almaden (“Mrs. Almaden”) appeals the final order of the Merit Systems
Protection Board (“Board”). The Board affirmed the Office of Personnel Management’s
(“OPM’s”) denial of survivor annuity benefits under the Federal Employees Retirement
System (“FERS”), 5 U.S.C. § 8442(b)(1). See Almaden v. Office of Pers. Mgmt., No.
SF-0843-09-0468-I-1 (M.S.P.B. Sept. 9, 2009). We affirm.
BACKGROUND
Mrs. Almaden is the widow of the late Manuel D. Almaden (“Mr. Almaden”). Mr.
Almaden had been employed by multiple federal agencies before his accidental death

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on August 25, 2008. Mrs. Almaden applied for death benefits under FERS on or about
October 17, 2008. In a February 19, 2009 initial decision, OPM found Mrs. Almaden
ineligible for a survivor annuity under FERS because Mr. Almaden had not completed
ten years of creditable civilian service. At the time of his death, Mr. Almaden had
completed a total of nine years, 11 months, and 17 days of creditable federal service
under FERS. After Mrs. Almaden requested reconsideration, OPM affirmed its initial
decision.
Mrs. Almaden then appealed to the Board. In an initial decision dated June 23,
2009, an Administrative Judge affirmed OPM’s decision. Almaden v. Office of Pers.
Mgmt., No. SF-0843-09-0468-I-1 (M.S.P.B. June 23, 2009). On September 9, 2009, the
Board denied Mrs. Almaden’s petition for review, and the initial decision became the
final decision of the Board. Mrs. Almaden timely petitioned for review in this court, and
we have jurisdiction pursuant to 28 U.S.C. § 1295(a)(9) and 5 U.S.C. § 7703(b)(1).
DISCUSSION
The scope of our review in an appeal from a Board decision is limited. We must
affirm the Board’s decision 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); see also Kievenaar v. Office of Pers. Mgmt., 421 F.3d
1359, 1362 (Fed. Cir. 2005). The burden of establishing deficiencies in an
administrative decision is on the petitioner. Cheeseman v. Office of Pers. Mgmt., 791
F.2d 138, 140 (Fed. Cir. 1986).
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In order for a widow to qualify for a survivor annuity under FERS, the widow must
establish that her spouse had completed at least ten years of creditable service before
his death. 5 U.S.C. §§ 8441(1)(A), 8442(b)(1)(B); 5 C.F.R. § 843.310. Mrs. Almaden
acknowledges that her spouse’s length of federal service fell short of the ten year
threshold requirement by thirteen days. Mrs. Almaden’s central argument on appeal is
that OPM should consider Mr. Almaden’s overtime hours when determining whether she
is entitled to survivor death benefits, while also giving weight to the financial and
physical hardships she faces due to her struggles with cancer. However, an
employee’s creditable service does not include overtime. See 5 C.F.R. § 842.402
(“Full-time service means any actual service in which the employee is scheduled to
work the number of hours and days required by the administrative workweek for his or
her grade or class (normally 40 hours).”). And annuities under FERS cannot be granted
based on equitable grounds. See Rahman v. Office of Pers. Mgmt., 63 M.S.P.R. 219,
222 (M.S.P.B. 1994); see also Office of Pers. Mgmt. v. Richmond, 496 U.S. 414, 426
(1990) (explaining that “judicial use of the equitable doctrine of estoppel cannot grant
respondent a money remedy that Congress has not authorized”).
Beyond Mrs. Almaden’s overtime and hardship arguments, she presents three
questions in her appellate brief: (1) “Is there a way we can remedy this short days if all
by granting a waiver of all the 13 days deficit, so as to grant my late husband Manuel,
the full 10 years of government service ?”; (2) Just as federal civil service employees,
who have served in the U.S. Armed Forces, have been allowed to “buy back” years of
military service and credit them to their total federal civil service time (military and
civilian time combined), “[i]s there a similar program that allows me, as the surviving
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2009-3300 4
widow, to buy back the 13 days, so as to give the full 10 years of service Manuel had ?”;
and (3) “The outstanding balance Manuel’s annual and sick leave, may they not be
used to overcome the 13 days deficit ?” OPM failed to discuss, or even acknowledge,
these three issues in its brief. Nonetheless, we are unaware of any statutory provisions
that present a ground for reversal with regard to any of them.
In summary, we agree with the Board that Mr. Almaden did not complete ten
years of service creditable under FERS. While we sympathize with Mrs. Almaden’s
unfortunate circumstances, we are compelled to affirm.
COSTS
No costs.

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