Opinion

Christine Varad v. Office of Personnel Management

Court: Merit Systems Protection Board
Filed: May 8, 2024
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 16.0%

explaining that an application for a CSRS survivor annuity must be affirmatively filed

How later courts described this case

explaining that an application for a CSRS survivor annuity must be affirmatively filed

Written by the judges who cited it.

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

CHRISTINE VARAD, DOCKET NUMBER

Appellant, PH-0831-18-0477-I-1

OFFICE OF PERSONNEL DATE: May 8, 2024

MANAGEMENT,

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Christine Varad , Scituate, Massachusetts, pro se.

Jane Bancroft , Washington, D.C., for the agency.

BEFORE

Cathy A. Harris, Chairman

Raymond A. Limon, Vice Chairman

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

(OPM) denying as untimely her application for Civil Service Retirement System

(CSRS) survivor annuity benefits. Generally, we grant petitions such as this one

only in the following circumstances: the initial decision contains erroneous

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

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. We MODIFY the initial

decision to supplement the administrative judge’s finding that OPM properly

determined that the appellant’s application was untimely filed more than 30 years

after the death of her father and to VACATE the portion of the initial decision

addressing whether the appellant showed that she is a disabled dependent child as

defined in 5 U.S.C. § 8341(a)(4)(B). Except as expressly modified, we AFFIRM

the initial decision, still affirming OPM’s reconsideration decision denying the

appellant’s application.

BACKGROUND

The appellant’s father, a former Federal civilian employee, retired in 1974

and passed away in 1975. Initial Appeal File (IAF), Tab 11 at 22, 24-27. On his

1973 application for retirement, he listed the appellant as an unmarried child

under the age of 22, but he did not indicate that she was disabled. IAF, Tab 1

at 8, Tab 11 at 25. Following the appellant’s father’s death, the appellant’s

mother timely filed an application for CSRS death benefits wherein she listed the

appellant as a dependent student child; however, she did not indicate that the

appellant was disabled. IAF, Tab 1 at 10-11, Tab 13 at 8-9.

On March 7, 2017, the appellant filed an application for CSRS survivor

benefits as a disabled dependent child survivor of her father. IAF, Tab 11

at 16-21. In her application, the appellant averred that she became permanently

disabled in 1971 at the age of 16. Id. at 16, 24.

On April 11, 2017, OPM issued an initial decision finding the appellant

ineligible for CSRS survivor benefits. Id. at 14. OPM explained that, pursuant to

5 U.S.C. § 8345(i)(2), 2 her application was untimely because she had filed it more

than 30 years after the death of her father. Id. Thereafter, on April 14, 2017,

May 22, 2017, and December 27, 2017, the appellant requested reconsideration of

OPM’s initial decision. Id. at 9-12. The appellant explained that, at the time of

her father’s death, she was unaware of any “survivor rights [she] might have had

as a disabled child associated with [her] father’s [CSRS benefits].” Id. at 12.

The appellant averred that she did not become aware of her potential claim to

benefits until February 2017. Id. On September 7, 2018, 3 OPM issued a

reconsideration decision on the matter, affirming the initial decision on the basis

of untimeliness. IAF, Tab 1 at 6-7, Tab 11 at 7-8. Thereafter, the appellant filed

an appeal with the Board. IAF, Tab 1. She did not request a hearing on the

matter. Id. at 2.

The administrative judge issued an initial decision on the written record

affirming OPM’s reconsideration decision. IAF, Tab 16, Initial Decision (ID).

The administrative judge found that the appellant failed to prove her entitlement

to CSRS survivor annuity benefits by a preponderance of the evidence. ID at 2-4.

Specifically, he found that the appellant failed to prove that she “was diagnosed

or even considered disabled before reaching age 18 or that her application was

timely.” ID at 4.

OPM’s initial decision erroneously reads “Title 5, Code of Federal Regulations,

§8345 (i) (2).” IAF, Tab 11 at 14 (emphasis added) (punctuation as in original).

The reconsideration decision is erroneously dated September 7, 2017. IAF, Tab 1 at 3,

Tab 16, Initial Decision at 1-2 n.1; Petition for Review File, Tab 5 at 9.

DISCUSSION OF ARGUMENTS ON REVIEW

The appellant’s application was untimely.

The appellant contends on review that an application for survivor benefits

was timely filed but that her disabled status was omitted inadvertently from both

her father’s 1973 application for retirement and her mother’s 1975 application for

death benefits. Petition for Review (PFR) File, Tab 1 at 8. The appellant asserts

that these “inadvertent and minor errors never intended to deny any rights and

interests.” Id. The appellant also contends that she sought clarity “as to her

rights” from OPM “in the years following the death of her father” but that OPM

did not respond. PFR File, Tab 5 at 9. We hereby supplement the initial decision

to address these arguments and explain further why the appellant’s application

was untimely.

In order to receive an annuity, the survivor of a deceased Federal annuitant

must file an application for benefits either personally or through a representative

within 30 years of the death of the Federal annuitant or other event giving rise to

the benefit. 5 U.S.C. § 8345(i)(2); 5 C.F.R. § 831.643(a). Here, the appellant’s

father, the Federal annuitant, passed away on December 11, 1975; thus, her

application for survivor benefits was due not later than December 11, 2005. 4 IAF,

Tab 11 at 22; see 5 U.S.C. § 8345(i)(2).

The appellant’s assertion that her father’s 1973 retirement application

constituted a timely application for disabled dependent child survivor benefits is

unavailing because the application was filed during her father’s lifetime; thus,

any claim for survivor benefits would have been premature. PFR File, Tab 1 at 8;

IAF, Tab 11 at 22, 25-26. Although the appellant’s mother filed an application

for benefits in 1975 shortly after the death of the appellant’s father, IAF, Tab 13

at 8-9, she did not list the appellant as a disabled dependent despite being

Although OPM’s reconsideration decision correctly states that the appellant’s

application was untimely because she did not file it within 30 years of the death of her

father, it also erroneously states that her application “should have been filed no later

than January 11, 1976.” IAF, Tab 1 at 7, Tab 11 at 8.

provided an opportunity to do so. As such, the first and only application for the

benefits sought was not filed until March 7, 2017. ID at 4; IAF, Tab 11 at 16-21.

Thus, the appellant’s application was untimely by more than 11 years. See

5 U.S.C. § 8345(i)(2). 5

Although the appellant alleges on review that, following the death of her

father, she attempted to contact OPM regarding her potential entitlement to

benefits, she does not specify in what years she did so, and we find that her

general allegations of “phon[ing] the OPM and writ[ing] letters to the OPM

asking for clarification” are too vague to evince that she filed an application for

survivor benefits as a disabled dependent child survivor of her father within

30 years of his death. PFR File, Tab 5 at 9; see Davis v. Office of Personnel

Management, 918 F.2d 944, 946 (Fed. Cir. 1990) (explaining that an application

for a CSRS survivor annuity must be affirmatively filed). Moreover, these

allegations contradict her assertion that she was altogether unaware of her

potential claim to benefits until February 2017. IAF, Tab 11 at 12. Thus, the

record substantiates the administrative judge’s conclusion that the appellant failed

to timely file her application for benefits. ID at 4.

We discern no basis to waive the prescribed filing time limit.

The appellant also contends that she was unaware of her potential right to

survivor annuity benefits within the 30-year statutory timeframe, and she avers

that she acted promptly as soon as she became aware of such rights. IAF, Tab 11

at 12; PFR File, Tab 5 at 4. We construe this assertion as a request for the Board

to waive the prescribed filing time limit for equitable considerations.

Prior to the enactment of 5 U.S.C. § 8345(i), the Civil Service Commission, OPM’s

predecessor agency, retained records pertaining to unclaimed retirement benefits in

perpetuity, which eventually became “a large and unnecessary recordkeeping problem.”

S. Rep. No. 94-540 (1975), reprinted in 1975 U.S.C.C.A.N. 2141, 2142, 2144, 2146.

The express legislative purpose of 5 U.S.C. § 8345(i) was to eliminate this cumbersome

recordkeeping burden by enabling the Civil Service Commission to “destroy retirement

records when no claim for a benefit [had] been received within the periods specified by

law.” 1975 U.S.C.C.A.N. at 2142.

The Board has recognized three possible bases for waiving a filing time

limit prescribed by statute or regulation: (1) the statute or regulation provides for

a waiver under specified circumstances; (2) an agency’s affirmative misconduct

precludes enforcement of the time limit under the doctrine of equitable estoppel;

and (3) an agency fails to provide a notice of rights and the applicable filing time

limit when such notice is required by statute or regulation. Perez Peraza v.

Office of Personnel Management, 114 M.S.P.R. 457, ¶ 7 (2010).

Here, neither the statute nor its implementing regulations provide any basis

for waiver of the 30-year time limit. 6 5 U.S.C. § 8345(i)(2); 5 C.F.R.

§ 831.643(a). Although the appellant seemingly alleges that OPM fraudulently

concealed her mother’s 1975 application from her, such misconduct, even if

assumed true, does not give rise to equitable estoppel because the 1975

application neither indicated that the appellant was disabled nor sought disabled

dependent child survivor benefits on her behalf; thus, the application is

immaterial to the issue of timeliness. PFR File, Tab 5 at 4-9; see Perez Peraza,

114 M.S.P.R. 457, ¶ 9 (explaining that to invoke equitable estoppel the appellant

must have reasonably and detrimentally relied on an agency misrepresentation).

Additionally, OPM had no statutory or regulatory duty to notify the appellant of

the requirement to file a claim for a survivor annuity within 30 years. See Davis,

918 F.2d at 946-47. Thus, we discern no basis to waive the 30-year filing time

limit. See Perez Peraza, 114 M.S.P.R. 457, ¶ 7.

The appellant’s contentions regarding discovery are unavailing.

Finally, the appellant makes a series of arguments on review suggesting

that OPM withheld material evidence and that the Board erroneously denied her

Although the appellant avers that she became permanently disabled as the result of a

work accident in 1971, she does not allege that her disabilities impacted her ability to

timely file her application with OPM. IAF, Tab 11 at 9, 12, 16. Moreover, even if the

appellant intended to levy this allegation, we discern no authority permitting either

OPM or the Board to waive the 30-year time limit on this basis. Cf. 5 U.S.C. § 8453

(giving OPM the authority to grant a waiver of the 1-year time limit for filing a

disability retirement application on the basis of mental incompetence).

discovery requests for this evidence. PFR File, Tab 1 at 6-8, Tab 5 at 4-9.

Although unclear, the “material evidence” to which the appellant refers seemingly

again concerns her mother’s 1975 application for death benefits. 7 PFR File,

Tab 1 at 6, 8, Tab 5 at 6-9.

To the extent the appellant argues that OPM failed to provide her with

either information about her mother’s 1975 application or the application itself in

discovery, we find her contention without merit. PFR File, Tab 1 at 6, 8, Tab 5

at 6-9. Here, the record is devoid of any discovery disputes. 8 Because the

appellant failed to file a motion to compel before the administrative judge, she is

precluded from raising discovery issues for the first time on review. See Szejner

v. Office of Personnel Management, 99 M.S.P.R. 275, ¶ 5 (2005), aff’d, 167 F.

App’x 217 (Fed. Cir. 2006); 5 C.F.R. § 1201.73(c). Moreover, as stated, the 1975

application is immaterial to the issue of the appellant’s timeliness. Thus, even

assuming the administrative judge committed an adjudicatory error as related to

the 1975 application or any documents associated therewith, the appellant has

failed to show that her substantive rights were adversely affected. See Lee v.

Environmental Protection Agency, 115 M.S.P.R. 533, ¶ 7 (2010) (explaining 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); see also Vincent v.

Federal Deposit Insurance Corporation, 41 M.S.P.R. 637, 640 (1989) (finding

unavailing the appellant’s allegations of discovery -related adjudicatory errors

Despite her argument in this regard, the record reflects that the appellant herself twice

submitted a copy of her mother’s 1975 application into the record; in fact, she

submitted this document along with her initial appeal form. IAF, Tab 1 at 10-11,

Tab 13 at 8-9.

The appellant filed her discovery requests into the record both in this proceeding and

in a separate appeal pertaining to her claim of survivor’s benefits. IAF, Tab 8; Varad v.

Office of Personnel Management, MSPB Docket No. PH-0831-18-0130-I-1, Initial

Appeal File, Tab 12. In this proceeding, the administrative judge issued a notice

explaining that, in accordance with 5 C.F.R. § 1201.71, the Board does not participate

in the discovery process until there is a failure or refusal to fully reply to a discovery

request and a motion to compel is filed. IAF, Tab 8. The appellant never filed such a

motion in either proceeding.

when the appellant neither clearly identified the evidence he was precluded from

obtaining nor explained how his rights were prejudiced by the alleged denial of

such evidence).

We vacate the portion of the initial decision finding that the appellant failed to

establish that she was disabled prior to the age of 18.

Neither OPM’s initial decision nor its reconsideration decision considered

whether the appellant qualified as a disabled dependent child as defined in

5 U.S.C. § 8341(a)(4)(B); rather, both decisions denied her application for

survivor annuity benefits on the basis of her untimeliness alone. IAF, Tab 1

at 6-7, Tab 11 at 7-8, 14. Because OPM never rendered an initial disability

determination, the administrative judge should not have analyzed the issue on

appeal. See Deese v. Office of Personnel Management, 116 M.S.P.R. 166, ¶ 9

(2011) (explaining that, because OPM’s reconsideration letter did not consider

whether the appellant was capable of self-support, the Board lacked jurisdiction

over the issue); see also Salarzon v. Office of Personnel Management,

44 M.S.P.R. 588, 593 (1990) (explaining that the Board lacks jurisdiction to

decide an issue without a final decision from OPM concerning that issue), aff’d,

925 F.2d 1479 (Fed. Cir. 1991) (Table). Thus, we vacate the administrative

judge’s finding that the appellant failed to show that she qualified as a disabled

dependent child as defined in 5 U.S.C. § 8341(a)(4)(B). ID at 4.

NOTICE OF APPEAL RIGHTS 9

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

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

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.

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) 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. 10 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

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