Opinion

Donna Dean v. Office of Personnel Management

Court: Merit Systems Protection Board
Filed: May 30, 2024
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 16.2%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

DONNA DEAN, DOCKET NUMBER

Appellant, CH-0841-22-0362-I-1

OFFICE OF PERSONNEL DATE: May 30, 2024

MANAGEMENT,

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

S. Daniel Coen , Coulterville, Illinois, for the appellant.

Alison Pastor , 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 Office of Personnel Management’s (OPM) reconsideration decision

denying the appellant survivor annuity benefits. On petition for review, the

appellant argues that the administrative judge failed to consider her late

husband’s (the annuitant’s) mental and physical health limitations, which, she

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

asserts, resulted in his inability to properly elect her as a beneficiary of a survivor

annuity. Petition for Review (PFR) File, Tab 1 at 3-4. 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 find that the appellant failed to establish a basis for

waiver of the statutory election requirement, we AFFIRM the initial decision.

Title 5, United States Code, section 8416(b)(1) allows a Federal Employees

Retirement System (FERS) annuitant who was married at the time of retirement

and remarries after retirement to elect, within two years after the remarriage or, if

later, within two years after the death of the former spouse, a survivor annuity for

his new spouse. In the initial decision, the administrative judge correctly found

that it was undisputed that the FERS annuitant—here, the appellant’s deceased

spouse—failed to make such an election. Initial Appeal File (IAF), Tab 31,

Initial Decision (ID) at 4. He considered the appellant’s arguments that OPM

misinformed the deceased annuitant that he could not designate the appellant as a

beneficiary to a survivor annuity until after his former spouse died and failed to

provide him with the forms to make an election or notices regarding the right of

election, but the administrative judge concluded that those arguments “do not

furnish grounds for awarding the appellant a survivor annuity under FERS.” ID

at 6. In arriving at this conclusion, the administrative judge did not consider

whether the appellant’s arguments constitute a basis for a waiver of the statutory

election requirement set forth in 5 U.S.C. § 8416(b)(1). See Blaha v. Office of

Personnel Management, 106 M.S.P.R. 265, ¶¶ 8-9 (2007) (explaining that

equitable estoppel is available as a possible basis for waiver when a claim for

money from the U.S. Treasury would not result in contravention of law). We do

so here.

The Board has recognized three bases for waiving an election or filing

requirement prescribed by statute or regulation: (1) the statute or regulation may

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

misconduct may preclude enforcing the requirement under the doctrine of

equitable estoppel; and (3) an agency’s failure to provide a notice of rights and

the applicable requirements, where such notice is required by statute or

regulation, may warrant waiver of the requirement . See Perez Peraza v. Office of

Personnel Management, 114 M.S.P.R. 457, ¶ 7 (2010). Regarding the first basis,

the statute does not provide for a specific waiver. See 5 U.S.C. § 8416(b).

Concerning the third basis, the administrative judge correctly stated that,

although OPM is obligated under FERS to provide notice to annuitants of election

rights and the procedures and deadlines applicable to making such elections, it is

not required to do so annually. ID at 5. The record suggests that such notice was

provided. 2 IAF, Tab 12 at 15-21. Thus, the remaining issue is whether OPM’s

alleged misinformation and failure to provide the deceased annuitant with the

election forms constitute affirmative misconduct such that the doctrine of

The appellant disputes that OPM ever provided such notice. IAF, Tab 30, Hearing

Recording (testimony of the appellant). However, OPM submitted an affidavit from an

employee who administers the contract for printing and distribution of forms and

notices for retirement services, wherein the employee certifies that general notices

regarding survivor elections were sent to all annuitants during the period in question in

this appeal. IAF, Tab 12 at 15. The United States Court of Appeals for the Federal

Circuit has regarded such an affidavit as sufficient to satisfy a notice requirement.

See Schoemakers v. Office of Personnel Management, 180 F.3d 1377, 1380-81 (Fed.

Cir. 1999).

equitable estoppel applies. The Board has held that negligent provision of

misinformation does not constitute affirmative misconduct, Perez Peraza,

114 M.S.P.R. 457, ¶ 10, and the appellant has not alleged that the OPM

representative knew that the information provided was false. Additionally, we do

not construe any failure on the part of OPM to provide the appropriate election

forms as affirmative misconduct, as those forms are available on OPM’s website,

and the appellant has not asserted that they were inaccessible. Nor has she

alleged that OPM ignored reasonable continued efforts to obtain the forms.

Accordingly, we modify the initial decision to find that the appellant failed to

establish a basis to waive the statutory election requirement.

Regarding the appellant’s argument on review that the administrative judge

failed to consider the deceased annuitant’s mental and physical health limitations

due to his Alzheimer’s disease, we find this argument to be without merit. The

administrative judge explicitly mentioned the deceased annuitant’s Alzheimer’s

disease diagnosis. ID at 2. Further, the Board has held that a retiree’s mental

incompetence during the period in question does not absolve him of a statutory

requirement to elect a survivor annuity during a prescribed timeframe.

See Shaughnessy v. Office of Personnel Management , 43 M.S.P.R. 633, 638

(1990) (explaining that the Board will not inject into a statute an exception for

mentally incompetent persons that would have the effect of excusing a failure to

comply with a statutory provision when the statute provides no such exception,

and the Board is bound by the clear language of the statute); see also

Schoemakers v. Office of Personnel Management, 180 F.3d 1377, 1381-82 (Fed.

Cir. 1999).

Based on the foregoing, we affirm the initial decision as modified.

NOTICE OF APPEAL RIGHTS 3

The initial decision, as supplemented by this Final Order, constitutes the

Boards 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

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:

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.

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

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