The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
TARRIA ANN BURWELL, DOCKET NUMBER
Appellant, DC-0831-22-0059-I-1
v.
OFFICE OF PERSONNEL DATE: May 15, 2024
MANAGEMENT,
Agency.
THIS ORDER IS NONPRECEDENTIAL 1
Tarria Ann Burwell , Laurel, Maryland, pro se.
Carla Robinson , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
REMAND ORDER
The appellant has filed a petition for review of the initial decision, which
affirmed the decision of the Office of Personnel Management (OPM) to deny her
application for a survivor annuity under the Civil Service Retirement System
(CSRS). For the reasons discussed below, we GRANT the appellant’s petition for
1
A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).
2
review, VACATE the initial decision, and REMAND this case to the Washington
Regional Office for further adjudication in accordance with this Remand Order.
BACKGROUND
The appellant is the surviving spouse of a CSRS retiree. The retiree was
previously married, and he elected a CSRS survivor annuity at the time of his
retirement in December 2006. Initial Appeal File (IAF), Tab 4 at 40-42. His first
spouse died in August 2008, he notified OPM of her death, and he started to
receive an unreduced annuity. Id. at 17, 33, 37. In December 2018, the retiree
married the appellant and notified OPM of his remarriage. IAF, Tab 1 at 11,
Tab 4 at 16. OPM sent him a January 2019 form informing him of his options to
elect and receive information regarding a survivor annuity for his new spouse and
to add her to his health insurance plan. IAF, Tab 1 at 11. He checked the box to
add his new spouse to his health insurance plan, but he did not check the box
indicating his interest in electing a survivor annuity for his new spouse and
requesting OPM to provide information on making such an election. Id.
According to the appellant, she and her deceased spouse called OPM multiple
times to ascertain whether a survivor annuity was in place for her and OPM
assured them that it had all the documentation. IAF, Tab 1 at 5, Tab 6 at 1-2,
Tab 7 at 4, 9, 11. The retiree died in January 2020. IAF, Tab 4 at 14.
In February 2020, the appellant filed an application with OPM for a CSRS
survivor annuity. IAF, Tab 4 at 10-21. In April 2021, OPM issued its initial
decision denying the appellant’s request on the ground that her deceased spouse
had not filed an election to provide her with a survivor annuity within 2 years of
their marriage. Id. at 8. The appellant then requested reconsideration with OPM.
Id. at 5. In October 2021, OPM issued its reconsideration decision affirming its
initial decision. IAF, Tab 1 at 7-8.
The appellant filed a Board appeal challenging OPM’s determination that
she was not entitled to a CSRS survivor annuity. IAF, Tab 1 at 4. She asserts
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that her deceased spouse did not check the box on the January 2019 form
requesting more information on a survivor annuity because he had the information
he needed, and he submitted forms to provide her with a survivor annuity.
Id. at 5. She claims that they contacted OPM several times and were told that the
election was in place and once the agency processed the paperwork, the
annuitant’s monthly annuity would be reduced accordingly. IAF, Tab 1 at 4-5;
Tab 6 at 2. Because the appellant withdrew her request for a hearing,
the administrative judge issued an initial decision on the written record finding
that the appellant failed to prove her entitlement to a CSRS survivor annuity and
affirming OPM’s reconsideration decision. IAF, Tab 6 at 2, Tab 9, Initial
Decision (ID) at 2, 6.
The appellant has filed a petition for review of the initial decision. Petition
for Review (PFR) File, Tab 1. She reiterates that her deceased spouse completed
the forms to provide her with a survivor annuity and requests that the Board
inspect the recordings of her telephone conversations with OPM representatives.
Id. at 4-5. OPM has filed a response. PFR File, Tab 3.
DISCUSSION OF ARGUMENTS ON REVIEW
In her petition for review, the appellant argues that the doctrine of
respondent superior is applicable in her case. PFR File, Tab 1 at 5. The doctrine
of respondent superior imposes liability upon an employer for the negligent acts
of employees committed within the scope of their employment. Miller v.
Department of Health and Human Services, 8 M.S.P.R. 249, 252 n.1 (1981). The
appellant’s argument is better considered as a claim of equitable estoppel, i.e.,
OPM should be estopped from denying benefits based on the erroneous
information provided to her and her deceased husband regarding her entitlement
to a survivor annuity by one or more OPM employees.
The administrative judge addressed this argument in the initial decision
under the general rule of Office of Personnel Management v. Richmond, 496 U.S.
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414 (1990). ID at 5-6. However, he never fully apprised the appellant of the
standard for equitable estoppel. Accordingly, remand is necessary in order to
afford the appellant the opportunity to address this point. See Blaha v. Office of
Personnel Management, 106 M.S.P.R. 265, ¶ 11 (2007) (remanding to address the
issue of equitable estoppel because the appellant was not informed of the correct
standard).
To prove a claim of equitable estoppel against a Government agency,
an appellant must show affirmative misconduct on the part of Government
officials and her reasonable reliance on that misconduct. See Zacharin v. United
States, 213 F.3d 1366, 1371 (Fed. Cir. 2000); Perez Peraza v. Office of Personnel
Management, 114 M.S.P.R. 457, ¶ 9 (2010). The Board has repeatedly held that
an agency’s negligent provision of misinformation does not constitute affirmative
misconduct. Perez Peraza, 114 M.S.P.R. 457, ¶ 10; Scriffiny v. Office of
Personnel Management, 108 M.S.P.R. 378, ¶¶ 12-13 (2008), overruled on other
grounds by Nunes v. Office of Personnel Management, 111 M.S.P.R. 221, ¶ 15
(2009). On remand, the parties should address whether the misinformation
provided by the relevant government officials was knowing, and thus, affirmative
misconduct, or mere negligence. Perez Peraza, 114 M.S.P.R. 457, ¶ 13;
see Nunes, 111 M.S.P.R. 221, ¶ 19.
The administrative judge should afford the parties the opportunity to
submit evidence and argument on this issue. Among other things, the appellant
should be afforded another opportunity to elect a hearing. Although the appellant
previously waived her right to a hearing, she might change her mind after
receiving a full and accurate notice of how to prove equitable estoppel.
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ORDER
For the reasons discussed above, we remand this case to the Washington
Regional Office for further adjudication in accordance with this Remand Order.
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.