The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
LEO A. CICCOLO, JR., DOCKET NUMBER
Appellant, PH-0843-14-0540-I-1
v.
OFFICE OF PERSONNEL DATE: April 2, 2015
MANAGEMENT,
Agency.
THIS FINAL ORDER IS NO NPRECEDENTIAL ∗
Leo A. Ciccolo, Jr., Malden, Massachusetts, pro se.
Cynthia Reinhold, Washington, D.C., for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Mark A. Robbins, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
affirmed the Office of Personnel Management’s (OPM’s) reconsideration decision
denying his request to elect survivor annuity benefits for his current spouse.
Generally, we grant petitions such as this one only when: the initial decision
∗
A nonprecedential order is one that the Board has determined does not add
sign ificantly 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 Parties may cite nonprecedential orders,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).
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contains erroneous findings of material fact; the 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).
DISCUSSION OF ARGUMENTS ON REVIEW
¶2 The appellant retired, effective February 28, 2006, from federal service
under the Federal Employees’ Retirement System (FERS). Initial Appeal File
(IAF), Tab 4, Subtab 5 at 2. At the time of his retirement, the appellant was
unmarried and, on his retirement application, he elected an annuity payable only
during his lifetime. Id. According to the appellant, he married his current spouse
on September 2, 2008. Id. at 1. The evidence provided by OPM reflects that, in
December 2008 and December 2009, it sent notices to the appellant informing
him that if he married subsequent to his retirement he had 2 years from the date
of his marriage to elect a survivor annuity for his new spouse. Id. at 8, 11, 13.
Nearly 5 years after the marriage, on May 17, 2013, the appellant requested
waiver of the filing deadline to elect a survivor annuity, asserting that he applied
for health insurance for his spouse subsequent to the marriage but was not aware
that he also needed to elect survivor annuity benefits in order for her to continue
to receive health insurance benefits if he predeceased her. Id. at 1. OPM denied
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the appellant’s waiver request and his request for reconsideration. IAF, Tab 4,
Subtabs 2, 4.
¶3 The appellant filed a timely appeal with the Board. IAF, Tab 1. After
holding a hearing, the administrative judge affirmed OPM’s reconsideration
decision, finding that the appellant did not make a timely election of survivor
annuity benefits and that there was no basis to waive the statutory deadline. IAF,
Tab 10, Initial Decision (ID). The appellant has petitioned for review, and OPM
has responded in opposition. Petition for Review (PFR) File, Tabs 1, 4.
¶4 The applicable statute and regulations provide that, when a federal
annuitant is unmarried at the time of his retirement under FERS but marries after
retirement, he may elect to provide a survivor annuity for his spouse within 2
years after his marriage. 5 U.S.C. § 8416(c)(1); 5 C.F.R. § 842.612. In the
instant case, it is undisputed that the appellant did not elect a survivor annuity for
his spouse before the end of the 2-year deadline. See IAF, Tab 4, Subtabs 4-6. It
is also undisputed that the appellant received the required annual notices sent to
all annuitants by OPM informing him of his right to make an election for a
survivor annuity within the statutory 2-year deadline under FERS. Id., Subtab 5
at 8, 11, 13. However, the appellant requests waiver of the filing deadline on the
ground that OPM did not timely inform him that, in order for his spouse to
continue to receive health insurance benefits after his death, he must have elected
a survivor annuity for her within 2 years of the marriage. See PFR File, Tab 1.
¶5 The Board has recognized three bases for waiving a filing deadline
prescribed by statute or regulation: (1) the statute or regulation may provide for a
waiver under specified circumstances; (2) an agency’s affirmative misconduct
may preclude enforcement of the deadline under the doctrine of equitable
estoppel; and (3) an agency’s failure to provide a notice of rights and the
applicable filing deadline, where such notice is required by statute or regulation,
may warrant a waiver of the deadline. Perez Peraza v. Office of Personnel
Management, 114 M.S.P.R. 457, ¶ 7 (2010). Under the FERS statutes and
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regulations, however, there is no allowance for waiver under the circumstances
present here, nor is there any requirement that OPM provide notice to FERS
annuitants concerning health care benefits rights for surviving spouses. See
Larson v. Office of Personnel Management, 93 M.S.P.R. 433, ¶¶ 3, 8 (2003); see
also 5 U.S.C. chapter 84. Further, the appellant does not allege, and the record
does not show, that OPM misled him into believing that his spouse’s health care
benefits would continue after his death without making a survivor annuity
election. See PFR File, Tab 1; see also IAF, Tab 4. While we are sympathetic to
the appellant’s situation, it is well established that the government cannot be
estopped from denying benefits not otherwise permitted by law even if the denial
of benefits may seem unfair to the individual. See Office of Personnel
Management v. Richmond, 496 U.S. 414, 416, 434 (1990). Thus, as correctly
determined by the administrative judge, the appellant has failed to establish any
basis for waiver of the 2-year filing deadline under 5 U.S.C. § 8416(c)(1). See ID
at 3.
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
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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
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.