Ann Marie Valinoti-Carcione v. Office of Personnel Management

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

ANN MARIE VALINOTI-CARCIONE, DOCKET NUMBER

Appellant, PH-0831-14-0072-I-1

v.

OFFICE OF PERSONNEL DATE: August 28, 2014

MANAGEMENT,

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Ann Marie Valinoti-Carcione, Manahawkin, New Jersey, pro se.

Linnette Scott, Washington, D.C., for the agency.

BEFORE

Susan Tsui Grundmann, Chairman

Anne M. Wagner, Vice Chairman

Mark A. Robbins, Member

FINAL ORDER

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

upheld the Office of Personnel Management’s (OPM) final decision to deny her

application for a survivor annuity. Generally, we grant petitions such as this one

only when: the initial decision contains erroneous findings of material fact; 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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

initial decision is based on an erroneous interpretation of statute or regulation or

the erroneous application of the law to the facts of the case; the judge’s rulings

during either the course of the appeal or the initial decision were not consistent

with required procedures or involved an abuse of discretion, and the resulting

error affected the outcome of the case; or new and material evidence or legal

argument is available that, despite the petitioner’s due diligence, was not

available when the record closed. See Title 5 of the Code of Federal Regulations,

section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this

appeal, and based on the following points and authorities, we conclude that the

petitioner has not established any basis under section 1201.115 for granting the

petition for review. Therefore, we DENY the petition for review and AFFIRM

the initial decision, which is now the Board’s final decision. 5 C.F.R.

§ 1201.113(b).

¶2 The following facts are undisputed. The appellant’s father, Mr. Carcioni,

retired under the Civil Service Retirement System (CSRS) in 1975 and elected a

maximum survivor annuity in favor of his wife. Initial Appeal File (IAF), Tab 7

at 89-92. Mr Carcioni’s wife predeceased him. Petition for Review (PFR) File,

Tab 4 at 2. On July 12, 2011, Mr. Carcioni and the appellant wrote OPM a letter

requesting that the survivor annuity be paid to the appellant as a disabled

dependent child upon Mr. Carcioni’s death. IAF, Tab 7 at 89-90. OPM denied

the request on the basis that the appellant is married. Id. at 10, 88. Mr. Carcioni

passed away on June 7, 2012. Id. at 86. After several additional rounds of

communication, id. at 14-35, 86-87, OPM issued a final decision denying the

survivor annuity request on the same basis, id. at 8-9.

¶3 The appellant filed a Board appeal, and the administrative judge issued an

initial decision affirming OPM’s final decision. IAF, Tab 1, Tab 11, Initial

Decision (ID) at 1, 4. He found that, because the appellant was married, she

was not eligible for a survivor annuity under the statute and that he was not

authorized to make an exception based on the equities of the case. ID at 3-4.

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¶4 The appellant has filed a petition for review, arguing that Mr. Carcioni

intended for his wife to look after the appellant upon his death but that

Mrs. Carcioni unexpectedly predeceased him, thus frustrating his plans. PFR

File, Tab 4 at 2. She also states that Mr. Carcioni’s intention and understanding

was that his annuity benefits would pass to the appellant based on her disabling

condition. Id. at 3. The appellant explains that her health is deteriorating and

that her private disability insurance payments are scheduled to stop in April 2014.

Id. at 2. She states that she is being discriminated against based on her marital

status. Id. OPM has filed a response. PFR File, Tab 6.

¶5 Although we sympathize with the appellant, we agree with the

administrative judge that she is not eligible for a survivor annuity under the

statute and that the Board lacks authority to make an exception for her. ID at 3-4.

The right of a child to a CSRS survivor annuity based on her parent’s service

arises under 5 U.S.C. § 8341(e). See Cleland v. Office of Personnel Management,

984 F.2d 1193, 1194-95 (Fed. Cir. 1993). That section provides in relevant part

as follows:

If the employee or Member is not survived by a spouse or a former

spouse who is the natural or adoptive parent of a surviving child of

the employee or Member, that surviving child is entitled to

an annuity . . . .

5 U.S.C. § 8341(e)(2). The key question in this case is whether the appellant is a

“child” within the meaning of the statute. The term “child” is defined at 5 U.S.C.

§ 8341(a)(4)(A)-(C). Because the appellant is more than 22 years of age, IAF,

Tab 7 at 10, she meets the definition, if at all, under 5 U.S.C. § 8341(a)(4)(B).

Under that subparagraph, “child” means:

such unmarried dependent child regardless of age who is incapable

of self-support because of mental or physical disability incurred

before age 18.

Thus, to meet the definition of “child” and be entitled to a survivor annuity under

5 U.S.C. § 8341(e)(2), the appellant must show, among other things, that she is

unmarried. Rajbhandary v. Office of Personnel Management, 91 M.S.P.R. 192,

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¶ 14 n.2 (2002); see Cheeseman v. Office of Personnel Management, 791 F.2d

138, 140-41 (Fed. Cir. 1986) (the burden of proving entitlement to a survivor

annuity is on the applicant for benefits). In this case, it is undisputed that the

appellant is married. IAF, Tab 7 at 10; ID at 3. Therefore, she does not meet the

definition of “child” under 5 U.S.C. § 8341(a)(4), and she is not entitled to a

child’s survivor annuity under 5 U.S.C. § 8341(e)(2).

¶6 On review, the appellant appears to concede that she is not eligible for an

annuity under the language of the statute. PFR File, Tab 4 at 2. She appeals

chiefly to the equities of the situation and the financial difficulties that she will

face in the absence of the annuity. Id. at 2-3. Equitable considerations, however,

do not empower OPM or the Board to award monetary benefits in the absence of

statutory authorization. A claim for payment of money from the public treasury

that is contrary to a statutory appropriation is prohibited by the Appropriations

Clause of the Constitution, art. I, § 9, cl. 7, and the government cannot be

estopped from denying benefits not otherwise permitted by law. Office of

Personnel Management v. Richmond, 496 U.S. 414, 424, 434 (1990); Devlin v.

Office of Personnel Management, 120 M.S.P.R. 78, ¶ 9 (2013).

¶7 The appellant also appears to argue that the denial of benefits is based on

marital status discrimination. PFR File, Tab 4 at 2. The appellant’s argument is

correct as far as it goes, but it still provides no basis to disturb OPM’s final

decision because the statute itself provides that married individuals will be

treated differently than unmarried individuals regardless of whether they

otherwise meet the statutory criteria for a survivor annuity under 5 U.S.C.

§ 8341(e)(2). 2 5 U.S.C. § 8341(a)(4).

2

Like the administrative judge, we decline to reach the issue of whether the appellant

meets the remaining criteria. ID at 3.

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NOTICE TO THE APPELLANT REGARDING

YOUR FURTHER REVIEW RIGHTS

You have the right to request review of this final decision by the

United States Court of Appeals for the Federal Circuit. You must submit your

request to the court at the following address:

United States Court of Appeals

for the Federal Circuit

717 Madison Place, N.W.

Washington, DC 20439

The court must receive your request for review no later than 60 calendar

days after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff.

Dec. 27, 2012). If you choose to file, be very careful to file on time. The court

has held that normally it does not have the authority to waive this statutory

deadline and that filings that do not comply with the deadline must be dismissed.

See Pinat v. Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).

If you need further information about your right to appeal this decision to

court, you should refer to the federal law that gives you this right. It is found in

Title 5 of the United States Code, section 7703 (5 U.S.C. § 7703) (as rev. eff.

Dec. 27, 2012). You may read this law as well as other sections of the

United States Code, at our website, http://www.mspb.gov/appeals/uscode.htm.

Additional information 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, and 11.

If you are interested in securing pro bono representation for your court

appeal, you may visit our website at http://www.mspb.gov/probono for a list of

attorneys who have expressed interest in providing pro bono representation for

Merit Systems Protection Board appellants before the court. The Merit Systems

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Protection Board neither endorses the services provided by any attorney nor

warrants that any attorney will accept representation in a given case.

FOR THE BOARD: ______________________________

William D. Spencer

Clerk of the Board

Washington, D.C.