Opinion

Ann Vayd v. Office of Personnel Management

Court: Merit Systems Protection Board
Filed: Feb 21, 2024
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 15.3%

holding that, if a putative spouse who is able to testify and fails to prove by clear and convincing evidence the 3 establishment of the marriage contract through the exchange of verba in praesenti (i.e., words in the present tense

How later courts described this case

holding that, if a putative spouse who is able to testify and fails to prove by clear and convincing evidence the 3 establishment of the marriage contract through the exchange of verba in praesenti (i.e., words in the present tense

Written by the judges who cited it.

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

ANN M. VAYDA, DOCKET NUMBER

Appellant, PH-0831-18-0246-I-1

OFFICE OF PERSONNEL DATE: February 21, 2024

MANAGEMENT,

Agency,

and

ROSEMARY E. HUDAK,

Intervenor.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Ann M. Vayda , Philadelphia, Pennsylvania, pro se.

Carla Robinson , Washington, D.C., for the agency.

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, Member

FINAL ORDER

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

affirmed the reconsideration decision of the Office of Personnel Management

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

(OPM) denying her claim for survivor benefits under the Civil Service Retirement

System (CSRS). 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. Except as expressly MODIFIED to

supplement the administrative judge’s analysis and to find that the appellant

cannot prove an entitlement to a lump-sum benefit as the decedent’s “widow”

under 5 U.S.C. § 8342(c), we AFFIRM the initial decision.

On petition for review, the appellant challenges the administrative judge’s

finding that she failed to prove her entitlement to survivor benefits as the

decedent’s widow because she did not prove that she and the decedent entered

into a common law marriage. Petition for Review (PFR) File, Tab 1; Initial

Appeal File (IAF), Tab 24, Initial Decision (ID) at 16. After considering the

appellant’s arguments on review and reviewing the record, we discern no reason

to disturb the thorough and well-reasoned initial decision. Specifically, we agree

with the administrative judge’s finding that the appellant did not meet her heavy

burden of proving that she and the decedent expressed a present intention to enter

into the legal relationship of marriage. ID at 12-16; see Staudenmayer v.

Staudenmayer, 714 A.2d 1016, 1021 (Pa. 1998) (holding that, if a putative spouse

who is able to testify and fails to prove by clear and convincing evidence the

establishment of the marriage contract through the exchange of verba in praesenti

(i.e., words in the present tense), then that party has not met its “heavy” burden to

prove a common law marriage because it does not enjoy any presumption based

on evidence of constant cohabitation and reputation of marriage). We further

agree with the administrative judge’s finding that, even if he were to consider

evidence of a reputation of marriage for purposes of a rebuttable presumption of a

common law marriage, such evidence of a broad and general reputation of

marriage between the appellant and the decedent is lacking. ID at 15-16; see,

e.g., Giant Eagle v. Workers’ Compensation Appeal Board , 602 A.2d 387, 389

(Pa. Commw. Ct.) (finding that the evidence suggesting that the claimant and the

decedent’s reputation of marriage was confined to very few people was not

sufficient to give rise to the presumption of marriage), appeal denied, 618 A.2d

403 (Pa. 1992) (Table).

Although we agree with the administrative judge’s conclusion that the

appellant did not prove that she was entitled to survivor benefits as the decedent’s

widow, we modify the initial decision to supplement his analysis, as follows. ID

at 16. The administrative judge correctly addressed the appellant’s potential

entitlement to a survivor annuity as the decedent’s “widow” under 5 U.S.C.

§ 8341(d), but he did not explicitly decide her potential entitlement to a

lump-sum benefit as the decedent’s “widow” under 5 U.S.C. § 8342(c). ID at 3;

IAF, Tab 12 at 1-2; see Clark v. Office of Personnel Management, 40 M.S.P.R.

517, 519-20 (1989) (considering the possibility that the appellant was eligible for

a survivor annuity as a “current spouse” and also was entitled to a lump-sum

benefit under 5 U.S.C. § 8342(c) as the decedent’s widow). If a survivor annuity

is not payable, lump-sum benefits are to be paid according to the order of

precedence set forth at 5 U.S.C. § 8342(c). See 5 U.S.C. § 8342(d); Canelo v.

Office of Personnel Management, 56 M.S.P.R. 217, 219 (1993) (explaining that a

lump-sum benefit is to be paid, based on the service of a deceased Federal

employee, if that service does not entitle anyone to a survivor annuity at the time

of the decedent’s death, or if, before a claim for a survivor annuity is filed, the

survivor’s right to the annuity has terminated); Narvasa v. Office of Personnel

Management, 47 M.S.P.R. 152, 154 (1991) (observing that, if no survivor annuity

is payable, and if the deceased employee served in a position covered by the

CSRS, 5 U.S.C. § 8342(d) provides for payment of a lump-sum benefit) .

Section 8342(c) provides that lump-sum benefits shall be paid first to the

designated beneficiary, and second, if there is no designated beneficiary, to the

“widow or widower” of the employee. Here, it is undisputed that the decedent

did not designate a beneficiary for payment of a lump-sum benefit. ID at 3.

Because we agree with the administrative judge’s finding that the appellant failed

to prove that she was the decedent’s “widow” based on a common law marriage

for purposes of a survivor annuity under 5 U.S.C. § 8341(d), ID at 3-4, 16, we

find that she cannot prove an entitlement to a lump-sum benefit as the decedent’s

“widow” under 5 U.S.C. § 8342(c).

The appellant further asserts on review that she was not prepared to present

her case at the hearing because a legal specialist at the Board allegedly told her

that the hearing would proceed in a question-and-answer format. PFR File, Tab 1

at 3. We discern no reason to disturb the initial decision on such a basis when

she has failed to describe how her substantive rights have been harmed. See

Karapinka v. Department of Energy, 6 M.S.P.R. 124, 127 (1981) (finding that an

administrative judge’s procedural error is of no legal consequence unless it is

shown to have adversely affected a party’s substantive rights) .

Accordingly, we affirm OPM’s reconsideration decision.

NOTICE OF APPEAL RIGHTS 2

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 may obtain

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.

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 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)(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. 3 The court of appeals must

receive your petition for 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