Case: 20-1651    Document: 19    Page: 1   Filed: 09/09/2020




        NOTE: This disposition is nonprecedential.


   United States Court of Appeals
       for the Federal Circuit
                  ______________________

                   RITA M. GIBSON,
                       Petitioner

                            v.

      OFFICE OF PERSONNEL MANAGEMENT,
                    Respondent
              ______________________

                        2020-1651
                  ______________________

    Petition for review of the Merit Systems Protection
 Board in No. PH-0831-20-0011-I-1.
                 ______________________

                Decided: September 9, 2020
                  ______________________

    RITA M. GIBSON, Havre de Grace, MD, pro se.

     RICHARD PAUL SCHROEDER, Commercial Litigation
 Branch, Civil Division, United States Department of Jus-
 tice, Washington, DC, for respondent. Also represented by
 ETHAN P. DAVIS, LISA LEFANTE DONAHUE, ROBERT EDWARD
 KIRSCHMAN, JR.
                  ______________________
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 2                                             GIBSON   v. OPM



 Before NEWMAN, O’MALLEY, and TARANTO, Circuit Judges.
 PER CURIAM.
     Rita Gibson sought survivor-annuity benefits, assert-
 ing that she was a “widow” of a retired federal employee. 5
 U.S.C. § 8341(b)(1). To qualify as a “widow,” she had to
 have been married to her husband “for at least 9 months
 immediately before his death.”

mar-
 riage lasted from May 21, 2018, to the date of her husband’s
 death, February 15, 2019—a total of 270 days, but six days
 shy of the 9-month “anniversary.” The Office of Personnel
 Management (OPM) concluded that she had not been mar-
 ried for at least 9 months before February 15, 2019, and
 denied the benefits claims. The Merit Systems Protection
 Board affirmed. We now affirm the Board’s decision.
                              I
     Ms. Gibson’s husband, Gerald Gibson, had timely
 elected a survivor annuity for Ms. Gibson, pursuant to 5
 U.S.C. §§ 8339(j)(3), 8341(h)(1). About a month after Mr.
 Gibson died, Ms. Gibson filed an Application for Death
 Benefits with OPM. OPM denied Ms. Gibson’s request for
 a monthly annuity, concluding that Ms. Gibson’s marriage
 lasted for only 8 months and 24 days, which was less than
 the statutorily required period of 9 months.
     Ms. Gibson appealed OPM’s final decision to the Board,
 which—through an initial decision of an administrative
 judge that became the Board’s final decision—affirmed
 OPM’s denial of benefits. The Board recognized that “[i]t
 is undisputed that the appellant and Mr. Gibson were mar-
 ried for eight full months, June 2018–January 2019, but
 they were married for only 10 days in May 2018 and 15
 days in February 2019.” S.A. 4. Because “[n]either [the
 Board] nor the parties uncovered any law, regulation, or
 precedential decision explaining how the nine months of
 marriage required by section 8341 are to be calculated,” the
 Board used a “common sense approach”—“counting the full
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 GIBSON   v. OPM                                            3



 months and combining the remaining days to determine
 whether they equal a month (30 days, as discussed below).”
 S.A. 4. By that method, the Board found that Ms. Gibson
 and Mr. Gibson “were married for eight month[s] and 25
 days” (counting the day of Mr. Gibson’s death). S.A. 4.
    That decision became final. S.A. 7. Ms. Gibson timely
 appealed to this court. We have jurisdiction under 28
 U.S.C. § 1295(a)(9).
                              II
     We must affirm the Board’s decision unless it is “(1) ar-
 bitrary, capricious, an abuse of discretion, or otherwise not
 in accordance with law; (2) obtained without procedures re-
 quired by law, rule, or regulation having been followed; or
 (3) unsupported by substantial evidence.”           5 U.S.C.
 § 7703(c); see also Montelongo v. Office of Personnel Mgmt.,
 

, 1353 (Fed. Cir. 2019). We review the
 Board’s legal determinations, “such as statutory interpre-
 tation, de novo.” Stephenson v. Office of Personnel Mgmt.,
 

, 1326 (Fed. Cir. 2013).
     The question presented is whether the undisputed pe-
 riod of the Gibsons’ marriage—from May 21, 2018, to Feb-
 ruary 15, 2019—meets the statutory condition that they
 were married “for a least 9 months immediately before” Mr.
 Gibson’s death on February 15, 2019. 5 U.S.C. § 8341(a)(1).
 The statutory reference to 9 months was adopted in 1984,
 when Congress reduced the marriage-duration require-
 ment from 1 year to 9 months. Civil Service Retirement
 Spouse Equity Act of 1984, Pub. L. No. 98-615, § 2(4), 98
 Stat. 3195, 3199. We conclude that the Gibsons’ marriage
 did not last “9 months,” a phrase whose “ordinary public
 meaning,” Bostock v. Clayton County, 

, 1738
 (2020), counts time using calendar months as the unit.
 Contrary to Ms. Gibson’s contention, counting days and
 treating each “month” as having 30 days is not a proper
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 4                                             GIBSON   v. OPM



 interpretation of section 8341(a)(1)’s simple use of
 “months.” 1
       In 1864, the Supreme Court explained: “The term
 [month] is not technical, and when the parties have not
 themselves given to it a definition, it must be construed in
 its ordinary and general sense, and there can be no doubt
 that in this sense calendar months are always understood.”
 Sheets v. Selden’s Lessee, 

, 190 (1864). In 1891,
 the Supreme Court emphasized that “[i]t is the settled law
 . . . that the word ‘month,’ when used in contracts or stat-
 utes, must be construed, where the parties have not them-
 selves given to it a definition, and there is no legislative
 provision on the subject, to mean calendar, and not lunar,
 months.” Guar. Tr. & Safe-Deposit Co. v. Green Cove
 Springs & Melrose R. Co., 

, 145 (1891); see Fo-
 gel v. Comm’r, 

, 349 (5th Cir. 1953) (“But the
 term is not a technical one, and when undefined, as here,
 it is commonly understood to mean a calendar month.”). By
 1979, Black’s Law Dictionary stated: The “[w]ord ‘month,’
 unless otherwise defined, means ‘calendar month.’” Month,
 Black’s Law Dictionary (5th ed. 1979); see also

ed.
 1990) (same).
     Given that counting in days is self-evidently different
 in ordinary meaning from counting in months (which vary
 in length from 28 to 31 days), the congressional choice in
 the present context to use the simple term “months” to de-
 fine a statutory period is not properly transformed into a
 quite different choice to use “days.” Indeed, in this very
 statutory scheme, Congress elsewhere repeatedly used


     1   Although OPM counted 8 months and 24 days and
 the Board counted 8 months and 25 days, that difference is
 immaterial here. It is likewise immaterial in this case
 whether one counts the day of marriage or the day of death
 or both. No matter how one makes those choices, the period
 at issue in the present case falls short of “9 months.”
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 GIBSON   v. OPM                                               5



 multiples of 30 days instead of months. E.g., 5 U.S.C.
 § 8332(k)(1) (“within 60 days”);

(c), (d)
 (“at least 60 days”);

later than
 180 days”). For § 8341(a)(1), in contrast, Congress chose “9
 months,” rather than “270 days.” We see no justification
 for erasing the clear distinction between familiar counting
 methods. See Wisconsin Cent. Ltd. v. United States, 138 S.
 Ct. 2067, 2071 (2018) (“We usually ‘presume differences in
 language like this convey differences in meaning.’”); Anto-
 nin Scalia & Bryan Garner, Reading Law: The Interpreta-
 tion of Legal Texts 170 (2012) (“[W]here the document has
 used one term in one place, and a materially different term
 in another, the presumption is that the different term de-
 notes a different idea.”). 2
     Ms. Gibson points to Begley v. Office of Personnel
 Mgmt., 

(Fed. Cir. 1995), for support, but Begley
 does not justify adoption of Ms. Gibson’s reading of the stat-
 ute at issue here. Begley involved a retirement-benefits re-
 quirement of five years of certain federal service, and the
 pertinent statute addressed how to calculate the time: “The



     2    A different result for “months” in 5 U.S.C.
 § 8341(a)(1) is not supported by the “365 days” interpreta-
 tion of a statutory reference to a “‘term of imprisonment [of]
 at least one year’” that the Ninth Circuit adopted in Habibi
 v. Holder, 

, 1086 (9th Cir. 2011) (alteration
 in original), based on a number of contextual considera-
 tions. Nor is a different result here supported by authority
 in at least one State “that a ‘month’ means a solar month,
 that is, thirty days, not a calendar month, when the term
 is not defined by statute and is used in assessing punish-
 ment for a criminal offense.” Lopez v. State, 

, 932 (Tex. App. 1983) (emphasis added). The criminal-
 law interest in “equality in punishment,” Yeary v. State, 

, 1108 (Tex. Crim. App. 1902), does not apply to
 the present setting.
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 6                                                GIBSON   v. OPM



 total service of an employee . . . is the full years and twelfth
 parts thereof, excluding from the aggregate the fractional
 part of a month, if any.” 5 U.S.C. § 8332(a). We first noted
 that the use of “month” in conjunction with the reference
 to “twelfth parts” of “full years” left the provision ambigu-
 ous. 

–06. We then explained that
 OPM had published a methodology—“consider[ing] a year
 to have 360 days and each month to have 30 days,”

tried to capture “the relationship between the
 [ambiguous] statutory terms ‘twelfth part[]’ of a year and
 ‘a month,’”

(second brackets in original). In that
 situation, invoking Chevron U.S.A. Inc. v. Natural Re-
 sources Defense Council, Inc., 

(1984), we de-
 ferred to OPM’s “somewhat contrived” formula because it
 was “a reasonable way of accommodating the statutory ref-
 erences to ‘twelfth parts’ and ‘month[].’” 

. On that basis, we upheld OPM’s calculation that Mr.
 Begley fell a week short of five years’ service.

     The statutory provision at issue in the present matter
 is quite different. It does not contain the unusual lan-
 guage, such as “twelfth parts,” that caused ambiguity as to
 “month” in the provision under consideration in Begley.
 Moreover, the parties and the Board have not pointed to
 any deference-warranting OPM pronouncement setting
 forth an interpretation of “month” in 5 U.S.C. § 8341(a). 3
 Accordingly, “the best reading of the text” controls. Encino
 Motorcars, LLC v. Navarro, 

, 1140 (2018).




     3   A regulation states: “For satisfying the 9-month
 marriage requirement of paragraph (a)(1) of this section,
 the aggregate time of all marriages between the spouse ap-
 plying for a current spouse annuity and the employee,
 Member, or retiree is included.” 5 C.F.R. § 831.642(b). The
 regulation does not address the meaning of “month.”
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 GIBSON   v. OPM                                            7



 Under that reading, as we have indicated, “month” in this
 statute refers to a calendar month.
     Ms. Gibson also notes that because calendar months
 are of different lengths, some 9-month intervals will be
 longer, in number of days, than others. See Memo in Lieu
 of Argument at 1. That result is inherent in Congress’s
 choice to measure a statutory period simply in terms of
 “months,” which has a familiar, ordinary, long-settled
 meaning that Congress said nothing to alter. We give ef-
 fect to that meaning and leave it to Congress to make any
 changes it deems warranted in the definition of the lines
 that determine eligibility for the benefits at issue.
                             III
     For the foregoing reasons, we affirm the Board’s deci-
 sion.
    The parties shall bear their own costs.
                        AFFIRMED