Opinion

Hildaura Quiros v. Office of Personnel Management

Court: Merit Systems Protection Board
Filed: Feb 2, 2024
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 15.0%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

HILDAURA QUIROS, DOCKET NUMBER

Appellant, AT-0831-18-0214-I-1

OFFICE OF PERSONNEL DATE: February 2, 2024

MANAGEMENT,

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Hildaura Quiros , Miami, Florida, pro se.

Alison Pastor , Washington, D.C., for the agency.

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, Member

FINAL ORDER

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

affirmed the final decision of the Office of Personnel Management (OPM),

denying her application for a Civil Service Retirement System (CSRS) survivor

annuity. On petition for review, the appellant reasserts that she is entitled to a

CSRS survivor annuity because she was the decedent’s common law wife, the

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

decedent designated her as the beneficiary of his estate, and they had three

children together, two of which were “underage.” Petition for Review (PFR) File,

Tab 1 at 4-6. She also argues, for the first time on review, that the decedent “sent

in” a “survivor benefit election change form,” in which he “chang[ed] the option

of having [his former spouse] as his survivor beneficiary before his death” and

that OPM discriminated against her in denying her a survivor annuity. Id. She

further claims that she mailed the referenced change of election form, court order,

and “documentation” supporting her status as the decedent’s common law wife to

the Board in support of her petition for review. PFR File, Tab 1 at 4-6, Tab 5

at 3.

¶2 Generally, we grant petitions such as this one only in the following

circumstances: the 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 administrative

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. 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, 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).

¶3 The appellant bears the burden of proving her entitlement to the survivor

annuity that she seeks by a preponderance of the evidence. 5 C.F.R.

§ 1201.56(b)(2)(ii). As the administrative judge assumed without finding that the

decedent and the appellant were legally married, the relevant dispute is whether

the administrative judge erred in finding that the decedent did not elect a survivor

annuity in the appellant’s favor. Initial Appeal File (IAF), Tab 11, Initial

Decision (ID) at 3-4. The appellant argues that the evidence she mailed to the

Board with her petition for review proves that he made such an election. PFR

File, Tab 1 at 4-6. However, the Board has no record of receiving the referenced

mailing. On review, the Board has received the appellant’s electronically filed

petition for review and reply to the agency’s response, neither of which contains

the referenced documents. PFR File, Tabs 1, 5. The appellant contends that the

tracking information she submits with her reply shows that the Board received the

mailing. PFR File, Tab 5 at 3. We disagree. The tracking receipt merely reflects

that a package was mailed from Panama City, Panama, to Washington, D.C.; it

does not contain a delivery address, or any other recipient information showing

the package was mailed to the Board. Id. at 4; see Gaydon v. U.S. Postal Service,

62 M.S.P.R. 198, 202-03 (1994) (finding that the appellant was not entitled to the

rebuttable presumption that his petition for review was received by the Board

because he failed to present specific, credible evidence that it was properly

addressed to the Board with postage prepaid and placed in the U.S. Postal Service

mail stream).

¶4 Moreover, the appellant failed to provide the purported evidence below,

despite being notified of her burden and being afforded an opportunity to

supplement the record before it closed. IAF, Tab 10. Under 5 C.F.R. § 1201.115,

the Board generally will not consider evidence submitted for the first time with

the petition for review absent a showing that it was unavailable before the record

was closed despite the party’s due diligence. Avansino v. U.S. Postal Service,

3 M.S.P.R. 211, 214 (1980). The appellant has not explained why she failed to

submit the documentation before the close of the record, even though she asserts

they were in her possession before the decedent’s death. PFR File, Tab 1 at 4.

Furthermore, although the appellant apparently was aware that the additional

documents were not in the record, she did not attach them to her reply or file a

motion for leave to supplement the record on review. PFR File, Tab 5 at 3; see

5 C.F.R. § 1201.114(a)(5), (k). We therefore find that the appellant has not acted

with due diligence in attempting to provide this additional evidence.

Accordingly, the appellant’s arguments do not provide a basis for review. 2

¶5 As for the appellant’s discrimination claim, she raises it for the first time on

review. PFR File, Tab 1 at 5. Generally, the Board will not consider an argument

raised for the first time in a petition for review absent a showing that it is based

on new and material evidence not previously available despite the party’s due

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

We find that the appellant has not made that necessary showing and decline to

consider this new allegation.

NOTICE OF APPEAL RIGHTS 3

You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By

statute, the nature of your claims determines the time limit for seeking such

review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).

Although we offer the following summary of available appeal rights, the Merit

Systems Protection Board does not provide legal advice on which option is most

appropriate for your situation and the rights described below do not represent a

In finding that the appellant was not entitled to a survivor annuity, the administrative

judge relied on the definition of a widow under the Federal Employee Retirement

System (FERS), 5 U.S.C. § 8441(2)(A), rather than the provision under CSRS, 5 U.S.C.

§ 8341(a)(1). ID at 3. The FERS and CSRS provisions are indistinguishable. Compare

5 U.S.C. § 8341(a), with 5 U.S.C. § 8441(2)(A). Nevertheless, whether the appellant

qualifies as a widow is irrelevant in the absence of a valid election for a survivor

annuity in her favor, as explained above. See 5 U.S.C. § 8341(b)(1). Thus, we find that

the administrative judge’s error in relying on provisions applicable to FERS was not

prejudicial to the appellant’s substantive rights and does not form a basis for reversing

the initial decision. See Panter v. Department of the Air Force , 22 M.S.P.R. 281, 282

(1984); see also Larson v. Office of Personnel Management, 93 M.S.P.R. 433, ¶¶ 6-7

(2003) (finding that an administrative judge’s error in applying a CSRS legal standard,

when the appellant was covered under FERS, did not form a basis for reversing the

initial decision when the error did not affect the appellant’s substantive rights).

Since the issuance of the initial decision in this matter, the Board may have updated

the notice of review rights included in final decisions. As indicated in the notice, the

Board cannot advise which option is most appropriate in any matter.

statement of how courts will rule regarding which cases fall within their

jurisdiction. If you wish to seek review of this final decision, you should

immediately review the law applicable to your claims and carefully follow all

filing time limits and requirements. Failure to file within the applicable time

limit may result in the dismissal of your case by your chosen forum.

Please read carefully each of the three main possible choices of review

below to decide which one applies to your particular case. If you have questions

about whether a particular forum is the appropriate one to review your case, you

should contact that forum for more information.

(1) Judicial review in general . As a general rule, an appellant seeking

judicial review of a final Board order must file a petition for review with the U.S.

Court of Appeals for the Federal Circuit, which must be received by the court

within 60 calendar days of the date of issuance of this decision. 5 U.S.C.

§ 7703(b)(1)(A).

If you submit a petition for review to the U.S. Court of Appeals for the

Federal Circuit, you must submit your petition to the court at the

following address:

U.S. Court of Appeals

for the Federal Circuit

717 Madison Place, N.W.

Washington, D.C. 20439

Additional information about the U.S. Court of Appeals for the Federal

Circuit 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, 10, and 11.

If you are interested in securing pro bono representation for an appeal to

the U.S. 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. The

Board neither endorses the services provided by any attorney nor warrants that

any attorney will accept representation in a given case.

(2) Judicial or EEOC review of cases involving a claim of

discrimination . This option applies to you only if you have claimed that you

were affected by an action that is appealable to the Board and that such action

was based, in whole or in part, on unlawful discrimination. If so, you may obtain

judicial review of this decision—including a disposition of your discrimination

claims —by filing a civil action with an appropriate U.S. district court ( not the

U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you

receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems

Protection Board, 582 U.S. 420 (2017). If you have a representative in this case,

and your representative receives this decision before you do, then you must file

with the district court no later than 30 calendar days after your representative

receives this decision. If the action involves a claim of discrimination based on

race, color, religion, sex, national origin, or a disabling condition, you may be

entitled to representation by a court-appointed lawyer and to waiver of any

requirement of prepayment of fees, costs, or other security. See 42 U.S.C.

§ 2000e-5(f) and 29 U.S.C. § 794a.

Contact information for U.S. district courts can be found at their respective

websites, which can be accessed through the link below:

http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .

Alternatively, you may request review by the Equal Employment

Opportunity Commission (EEOC) of your discrimination claims only, excluding

all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the

EEOC’s Office of Federal Operations within 30 calendar days after you receive

this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,

and your representative receives this decision before you do, then you must file

with the EEOC no later than 30 calendar days after your representative receives

this decision.

If you submit a request for review to the EEOC by regular U.S. mail, the

address of the EEOC is:

Office of Federal Operations

Equal Employment Opportunity Commission

P.O. Box 77960

Washington, D.C. 20013

If you submit a request for review to the EEOC via commercial delivery or

by a method requiring a signature, it must be addressed to:

Office of Federal Operations

Equal Employment Opportunity Commission

131 M Street, N.E.

Suite 5SW12G

Washington, D.C. 20507

(3) Judicial review pursuant to the Whistleblower Protection

Enhancement Act of 2012 . This option applies to you only if you have raised

claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or

other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).

If so, and your judicial petition for review “raises no challenge to the Board’s

disposition of allegations of a prohibited personnel practice described in

section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)

(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either

with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of

competent jurisdiction. 4 The court of appeals must receive your petition for

The original statutory provision that provided for judicial review of certain

whistleblower claims by any court of appeals of competent jurisdiction expired on

December 27, 2017. The All Circuit Review Act, signed into law by the President on

July 7, 2018, permanently allows appellants to file petitions for judicial review of

MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals

for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.

The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,

132 Stat. 1510.

review within 60 days of the date of issuance of this decision. 5 U.S.C.

§ 7703(b)(1)(B).

If you submit a petition for judicial review to the U.S. Court of Appeals for

the Federal Circuit, you must submit your petition to the court at the