Alvin Lewis Fuell v. Office of Personnel Management

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

ALVIN LEWIS FUELL, DOCKET NUMBER

Appellant, PH-0831-15-0029-I-1

v.

OFFICE OF PERSONNEL DATE: August 4, 2015

MANAGEMENT,

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Alvin Lewis Fuell, Baltimore, Maryland, pro se.

Karla W. Yeakle, 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 final decision denying

the appellant’s application for a Civil Service Retirement System (CSRS)

survivor annuity. Generally, we grant petitions such as this one only when: the

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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

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initial decision 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).

¶2 The appellant is the surviving spouse of a CSRS annuitant. 2 Initial Appeal

File (IAF), Tab 6 at 13, 24. On May 29, 2002, the appellant’s wife executed a

Standard Form 2801 retirement application, indicating that she was electing an

unreduced annuity payable only during her lifetime. Id. at 19-21. With her

retirement application, she submitted a Spouse’s Consent to Survivor Election

form, which appeared to have been signed by the appellant on April 17, 2002.

Id. at 22. The appellant’s wife indicated on part 1 of the form that she elected

“[n]o regular or insurable interest survivor annuity for my current spouse.” Id.

Above the appellant’s signature in part 2 is the statement, “I freely consent to the

survivor annuity election described in part 1. I understand that my consent is

final (not revocable).” Id. The appellant’s signature is notarized. Id. The

appellant’s wife retired from Federal service effective June 3, 2002. Id. at 24.

¶3 The appellant’s wife died on May 19, 2014, and the appellant applied for a

survivor annuity. Id. at 8-12. On September 23, 2014, OPM issued a final

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The appellant and his late spouse separated in 1999, but they remained married until

her death. Hearing Compact Diskette (testimony of the appellant).

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decision denying the appellant’s application. Id. at 4-5. OPM explained that it

had determined that the appellant’s wife had elected not to provide him with a

survivor annuity, and that the appellant had irrevocably waived his right to this

benefit by signing the Spouse’s Consent to Survivor Election form. Id. at 6.

¶4 The appellant filed a Board appeal, challenging OPM’s final decision on the

basis that his signature was forged. IAF, Tab 1 at 5, 12. After a telephonic

hearing, the administrative judge issued an initial decision affirming OPM’s final

decision. IAF, Tab 17, Initial Decision (ID) at 1, 4. He considered the

appellant’s argument that he never waived his right to a survivor annuity because

his alleged signature on the consent form is a forgery, but he found that the

appellant submitted insufficient evidence to support this claim. ID at 4. The

appellant filed a petition for review, and OPM filed a response in opposition.

Petition for Review (PFR) File, Tabs 2, 5.

¶5 Generally, a current spouse of a retired CSRS employee is entitled to a

survivor annuity unless he waived his right to a survivor annuity in writing at the

time of his spouse’s retirement. 5 U.S.C. §§ 8339(j)(1), 8341(b)(1); 5 C.F.R.

§ 831.614. Such a waiver is irrevocable. 5 U.S.C. § 8339(j)(1). In this case, the

issue is whether the appellant’s signature on the consent form is genuine. The

appellant bears the burden of proof on this issue. 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).

¶6 As the administrative judge correctly found, a notary’s certificate of

acknowledgment, regular on its face, carries a presumption of genuineness and

due execution. ID at 4; see Butler v. Encyclopedia Brittanica, 41 F.3d 285

(7th Cir. 1994); 2 Am. Jur. 2d Acknowledgments § 66 (2015). However, a

notary’s certificate is ultimately a form of hearsay evidence that must be weighed

against any evidence to the contrary. Luten v. Office of Personnel Management,

110 M.S.P.R. 667, ¶ 12 (2009). In this case, the administrative judge considered

the appellant’s evidence and argument but found it insufficient to show that the

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notary’s certificate was false and the appellant’s signature was forged. ID at 4.

For the following reasons, we find that the appellant has not presented a

sufficient basis for us to disturb the administrative judge’s finding on review.

¶7 The appellant alleges that his wife forged his signature using a copy of their

1974 marriage license. PFR File, Tab 2 at 4-5, 7, 16, 18, 21-22. He argues that

nobody’s signature remains unchanged for 30 years, id. at 5, 16, 22-23, and that

the signature on the consent form does not match the signature on his marriage

license, id. at 5, 16. We find that these arguments are contradictory, and we

are not certain whether the appellant is arguing that the similarity or the

dissimilarity of the signatures is indicative of forgery. We have reviewed the

copies of the signatures that the appellant submitted on petition for review—one

from his 1974 marriage license and one from the 2002 consent form—and we find

no reason to conclude that the latter was a forgery. Id. at 26-27. The signatures

are not identical, but they appear to have been formed in roughly the same

manner. Id. It does not appear that the signature on the consent form was traced

from the signature on the marriage certificate, as the appellant alleges. Id. at 23,

26-27.

¶8 The appellant also alleges, for the first time on review, that he was busy

moving on April 17, 2002, when he supposedly executed the consent form.

Id. at 24. In support of his allegation, he has attached a copy of a lease agreement

beginning April 15, 2002. Id. at 28-29. However, the Board generally will not

consider evidence and argument submitted for the first time on petition for review

absent a showing that it was previously unavailable despite the party’s due

diligence. Banks v. Department of the Air Force, 4 M.S.P.R. 268, 271 (1980);

Avansino v. U.S. Postal Service, 3 M.S.P.R. 211, 214 (1980). Moreover, the

appellant’s lease was for an apartment in Baltimore, Maryland -- the same city

indicated on the notary’s certificate. PFR File, Tab 2 at 28-29; IAF, Tab 6 at 22.

We find it inherently probable that the appellant could have executed this

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document before a notary in Baltimore around the time that he was moving in the

same city.

¶9 The appellant further argues that he had no reason to waive his survivor

annuity rights, in particular because he was separated from his wife at the time.

PFR File, Tab 2 at 16-20, 22-23. However, there are many reasons, both personal

and financial, that an individual in the appellant’s situation might have chosen to

waive his right to a survivor annuity. We will not speculate as to what the

appellant’s personal, legal, and financial circumstances might have been on

April 17, 2002, but we do not find it inherently improbable that he had some

reason for waiving his survivor annuity right notwithstanding the separation.

¶10 The appellant also argues that notaries sometimes do favors for friends and

family, and he attaches a list of elements for lawful notarization as published by

the American Society of Notaries. Id. at 5, 30-31. The appellant, though, has not

given us a sufficient basis to find that the notarization in this case was a forgery

done as a favor for his wife or that the requirements for a lawful notarization

were not met.

¶11 Finally, the appellant argues that the outcome of the initial decision was

unjust in light of his 40 years of marriage. Id. at 4, 22. However, the equities of

the situation 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, Article I, Section 9, Clause 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).

¶12 Base on the foregoing, we find that the appellant has not provided a basis

for disturbing the initial decision affirming OPM’s final decision.

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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 appeal to

the Court of Appeals for the Federal Circuit, you may visit our website at

http://www.mspb.gov/probono for information regarding pro bono representation

for Merit Systems Protection Board appellants before the Federal Circuit.

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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.