Opinion

Mark E. Cahill v. Office of Personnel Management

Court
Merit Systems Protection Board
Filed
Nov 17, 2014
Status
Unpublished
Cited by
0 cases
Authority
More cited than 33.5%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

MARK E. CAHILL, DOCKET NUMBER

Appellant, DE-0831-13-1773-I-1

v.

OFFICE OF PERSONNEL DATE: November 17, 2014

MANAGEMENT,

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL *

Mark E. Cahill, Columbia Falls, Montana, pro se.

Cynthia Reinhold, 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

dismissed the appeal of a final decision by the Office of Personnel Management

(OPM) denying survivor annuity benefits under the Civil Service Retirement

System (CSRS) for lack of jurisdiction, finding that the appellant filed the appeal

*

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

on behalf of his mother’s estate after her death. For the following reasons, we

AFFIRM the administrative judge’s finding that the appellant cannot initiate an

appeal on behalf of his mother’s estate; however, we MODIFY the initial decision

to find that the Board has jurisdiction to consider the appellant’s individual

claims for benefits under CSRS and AFFIRM OPM’s decision denying the

appellant benefits based on his father’s federal service. Except as expressly

modified by this Final Order, we AFFIRM the initial decision.

BACKGROUND

¶2 The appellant’s father (retiree) had retired from federal service in 1978,

electing a maximum survivor annuity for his then wife, who was also the

appellant’s mother, before the couple divorced in 1981. Initial Appeal File (IAF),

Tab 1 at 5, Tab 11 at 31-33. After the death of the retiree in June 1991, IAF,

Tab 11 at 30, OPM determined that his former wife was not entitled to a former

spouse survivor annuity benefit under the divorce decree issued prior to the

enactment of the Civil Service Retirement Spouse Equity Act of 1984 (1984 Act),

id.; see IAF, Tab 11 at 5, 12. OPM determined that the retiree’s annuity should

have been adjusted from the elected reduced rate to the life rate at the time of the

divorce. IAF, Tab 1 at 5, Tab 11 at 19. Following an application for death

benefit filed by the appellant and his sister, IAF, Tab 11 at 14, 20-21, OPM

recomputed the retiree’s annuity retroactive to the date of the dissolution of the

marriage and provided the appellant and his sister a lump-sum payment, which

included the retroactive adjustment, IAF, Tab 1 at 5, Tab 11 at 17-19.

¶3 In June 2012, after his mother’s death, and more than 20 years after the

retiree’s death, the appellant contacted OPM, asserting his mother’s purported

entitlement to former spouse survivor annuity benefits. Petition for Review

(PFR) File, Tab 3 at 3-4. OPM responded that all available benefits had been

paid to the appellant and his sister and that his mother was not eligible for a

survivor annuity for the reasons provided in 1991. IAF, Tab 11 at 11-13. The

3

appellant continued to pursue additional benefits from OPM, particularly on the

grounds that OPM had erroneously denied payment of a survivor annuity to his

mother as provided for in his parents’ 1981 property settlement agreement. IAF,

Tab 13. OPM issued a final decision in June 2013, affirming its prior decisions

that all available benefits had been paid to the appellant and his sister and that the

dissolution decree and property settlement agreement between the appellant’s

parents was unacceptable for processing survivor annuity benefits. IAF, Tab 1

at 5.

¶4 The appellant filed this appeal and identified his deceased mother as the

appellant in the claim, arguing that OPM has misinterpreted the law in denying

her survivor benefits. IAF, Tab 1 at 1-2. OPM argued that the appellant’s mother

was ineligible for such benefits because the property settlement agreement

apportioning a share of the retiree’s benefits was entered prior to the enactment of

the 1984 Act, and the mother had remarried prior to the age of 55. IAF, Tab 11

at 5; see 5 C.F.R. §§ 838.802, 838.1004. The administrative judge dismissed the

appeal for lack of jurisdiction, finding that the OPM decision under appeal is

whether the estate of the appellant’s deceased mother is entitled to survivor

annuity benefits, and the estate lacked standing to file the Board appeal after the

death of the appellant’s mother. IAF, Tab 20, Initial Decision (ID) at 4-5.

¶5 On review, the appellant asserts that he did not file a claim on behalf of the

estate of his mother but rather requested payment of the accrued annuity

“pursuant to the Federal order of precedence and applicable statutes.” PFR File,

Tab 3 at 2. He asserts that OPM failed to provide adequate notice regarding

reelection rights, and claims damages from his mother’s former spouse annuity

benefits “as the natural object of [his] parents[’] bounty.” Id. at 3.

DISCUSSION OF ARGUMENTS ON REVIEW

¶6 The Board’s jurisdiction is not plenary; it is limited to those matters over

which it has been given jurisdiction by law, rule, or regulation. Maddox v. Merit

4

Systems Protection Board, 759 F.2d 9, 10 (Fed. Cir. 1985). The appellant bears

the burden of proof of establishing Board jurisdiction by a preponderance of the

evidence. 5 C.F.R. § 1201.56(a)(2)(i). The burden of proving entitlement to a

survivor annuity is on the applicant for benefits. Cheeseman v. Office of

Personnel Management, 791 F.2d 138, 140-41 (Fed. Cir. 1986); 5 C.F.R.

§ 1201.56(a)(2).

¶7 To the extent that the appellant filed the appeal on behalf of his mother for

former spouse annuity benefits, we agree with the administrative judge that the

appellant lacks standing and that the estate cannot file an appeal after the death of

the individual claiming benefits. Although the Board’s regulations permit a

properly substituted party to pursue the appeal of an appellant who dies or is

unable to pursue the appeal, 5 C.F.R. § 1201.35, they do not provide for a

substitution of a party before the appeal is filed, Glover v. Department of the

Army, 94 M.S.P.R. 534, ¶ 10 (2003). The Board has applied this prohibition

against an estate or survivor initiating an appeal in a range of claims, including

individual right of action and chapter 75 appeals, and the principle also applies to

appellants in retirement appeals. See id., ¶ 9; see also Estate of Pyc v.

Department of Veterans Affairs, 73 M.S.P.R. 326, 328 & n.2 (1997). The U.S.

Court of Appeals for the Federal Circuit has upheld the Board’s determination

that the right to file for a CSRS annuity is personal and that the wife of an

individual with the right to file for an annuity generally lacks standing to file the

application. Oshiver ex rel. Oshiver v. Office of Personnel

Management, 896 F.2d 540, 541 (Fed. Cir. 1990). The appellant made no

argument supporting his assertion that 5 C.F.R. § 1201.35 provides for an appeal

following the death of the individual with appeal rights, and the plain language of

the regulation clearly provides for a contingency “[i]f an appellant dies.” In the

present case, the appellant’s mother had not filed an appeal and thus was not an

appellant whose death would permit a substitution of a proper party. PFR File,

Tab 3 at 3. The appellant has failed to show error in the administrative judge’s

5

analysis that the regulations do not permit a substitution of party prior to the

filing of an appeal.

¶8 In his petition for review, the appellant asserts that he filed the claim on his

own behalf and not on behalf of his mother’s estate. PFR File, Tab 3 at 2. The

Board has jurisdiction to hear an appeal of a final OPM determination affecting

an individual’s right or interests under the federal retirement laws. 5 C.F.R.

§ 1201.3(a)(2). In the present case, OPM provided a final decision to the

appellant denying survivor annuity benefits based on his father’s federal service,

notifying him of his right to appeal the decision to the Board. IAF, Tab 1 at 5-6.

Although the appellant’s pleadings before the administrative judge seemed to

seek benefits on behalf of his mother’s estate, we note that the appellant also

argued that authority exists for a payment of a deceased former spouse’s share of

an annuity to one or more of the retiree’s children, IAF, Tab 18 at 4, and OPM

decided in part that all benefits had been properly paid to the appellant and his

sister upon his application, IAF, Tab 1 at 5-6, Tab 11 at 9, 11, 14, 17-19. We

thus find Board jurisdiction over the appellant’s individual claims for benefits as

asserted, despite agreeing with the administrative judge that the appellant lacks

standing to file an appeal for survivor annuity benefits on behalf of his mother’s

estate. See ID at 4-5. However, for the following reasons, we find that the

appellant has not met his burden of proving entitlement to a survivor annuity or

any other benefits.

¶9 The appellant has not made a nonfrivolous allegation that he is entitled to

any survivor benefits associated with his father’s federal service. He has made no

argument that he qualifies for a survivor annuity on his own account as the child

of the employee under 5 U.S.C. § 8341(a)(4). As for the appellant’s assertions

that he is entitled to the survivor annuity intended for his mother, he

mischaracterizes OPM’s regulations, including those concerning the death of the

former spouse receiving CSRS benefits. For instance, the appellant cites OPM’s

regulation at 5 C.F.R. § 838.1012(b)(4), which states that OPM will honor a

6

qualifying court order directing OPM to pay, after the death of the former spouse,

the former spouse’s share of the employee annuity to one or more of the retiree’s

children as defined by statute. PFR File, Tab 3 at 4. However, 5 C.F.R.

§ 838.1012(a) provides that “[u]nless the qualifying court order expressly

provides otherwise, the former spouse’s share of employee retirement benefits

terminates on the last day of the month before the death of the former spouse.”

Thus, contrary to the appellant’s assertion, the regulations establish that the

retirement benefits terminate with the death of the former spouse unless otherwise

instructed by a qualifying court order. See PFR File, Tab 3 at 4. His citation

to 5 U.S.C. § 8424(g) regarding unpaid accrued annuity benefits is irrelevant, as

the statute concerns the Federal Employees’ Retirement System and the

appellant’s father received benefits under CSRS. Id. at 3-4. To the extent that

the appellant sought to reference the order of precedence for a lump-sum payment

under CSRS pursuant to 5 U.S.C. § 8342, we note that the record indicates that

OPM paid a lump-sum to both the appellant and his sister in 1991, after their

father’s death. See IAF, Tab 11 at 17-19.

¶10 We have considered the appellant’s other arguments and find that they

pertain to whether his mother should have been entitled to a former spouse

survivor annuity based on alleged errors by OPM. See, e.g., PFR File, Tab 3 at 3.

He has not shown, and we are not aware of, any valid basis for concluding that

any such errors affected any right or interest belonging to him individually under

federal retirement law.

NOTICE TO THE APPELLANT REGARDING

YOUR FURTHER REVIEW RIGHTS

The initial decision, as supplemented by this Final Order, constitutes the

Board's final decision in this matter. 5 C.F.R. § 1201.113. You have the right to

request the United States Court of Appeals for the Federal Circuit to review this

final decision. You must submit your request to the court at the following

address:

7

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.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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