Mark H. Foss v. Office of Personnel Management ( 2015 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
MARK H. FOSS, DOCKET NUMBER
Appellant, DE-0831-14-0529-I-1
v.
OFFICE OF PERSONNEL DATE: September 21, 2015
MANAGEMENT,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Mark H. Foss, Grand Island, Nebraska, pro se.
Linnette Scott, Washington, D.C., for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Mark A. Robbins, Member
FINAL ORDER
¶1 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 the appellant’s application for a survivor annuity. Generally, we
grant petitions such as this one only when: the initial decision contains erroneous
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).
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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 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. See 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).
¶2 In January 2012, OPM notified the appellant that he might be eligible for a
Civil Service Retirement System survivor annuity as a dependent of Arnold Foss.
Initial Appeal File (IAF), Tab 7 at 177. The appellant completed the
corresponding questionnaire and returned it to OPM, requesting a survivor
annuity. Id. at 170-73, 176.
¶3 In May 2012, OPM issued its initial decision, denying the appellant’s
request. Id. at 167-69. The appellant submitted a request for reconsideration,
with additional evidence attached. Id. at 89-166. OPM issued its reconsideration
decision in April 2013, again denying his request for a survivor annuity. Id.
at 86-88.
¶4 The appellant challenged OPM’s April 2013 reconsideration decision in a
previous Board appeal. See Foss v. Office of Personnel Management, MSPB
Docket No. DE-0831-13-0258-I-1, Remand Order at 1 (June 5, 2014). After the
administrative judge affirmed OPM’s denial, the Board granted the appellant’s
petition for review, vacated the initial decision, and remanded the matter to OPM
to issue a new reconsideration decision. Id. at 1-3. We found that, while OPM
determined that the appellant had not shown that he was incapable of self-support
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prior to age 18, the proper standard required a determination as to whether he “is
incapable of self-support because of a mental or physical disability incurred
before age 18.” 2 Id. at 1-2 (quoting 5 U.S.C. § 8341(a)(4)(B), (e)(2) (emphasis
added)).
¶5 Following our remand, OPM issued a new reconsideration decision in
July 2014, applying the proper legal standard and again denying the appellant’s
request for a survivor annuity. IAF, Tab 7 at 4-6. The appellant filed the instant
appeal, challenging that reconsideration decision. IAF, Tab 1. He requested that
the administrative judge issue a decision on the written record, without a hearing.
IAF, Tab 8 at 1-2.
¶6 The administrative judge affirmed OPM’s July 2014 reconsideration
decision. IAF, Tab 14, Initial Decision (ID). The appellant has filed a petition
for review. Petition for Review (PFR) File, Tab 1. OPM has filed a response.
PFR File, Tab 3.
¶7 Under 5 U.S.C. § 8341(a)(4)(B) and (e)(2), the unmarried dependent child
of a deceased Federal annuitant is entitled to a survivor annuity, regardless of
age, if he is incapable of self-support because of a mental or physical disability
incurred before age 18. Rajbhandary v. Office of Personnel
Management, 91 M.S.P.R. 192, ¶ 4 (2002). The burden of proving that
entitlement is on the applicant for benefits. See Cheeseman v. Office of Personnel
Management, 791 F.2d 138, 140-41 (Fed. Cir. 1986).
¶8 As noted by the administrative judge, there is no substantive dispute
concerning the appellant being the unmarried dependent child of a deceased
Federal annuitant. See ID at 5-6; IAF, Tab 7 at 4-5. However, the administrative
judge concluded that the appellant failed to establish that he is incapable of
2
Because OPM had not yet determined whether the appellant “is incapable of
self-support,” within the meaning of section 8341(a)(4)(B), we did not have jurisdiction
to answer that question in the prior appeal. See Remand Order at 2 (citing Deese v.
Office of Personnel Management, 116 M.S.P.R. 166, ¶ 9 (2011); 5 C.F.R. § 831.110).
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self-support due to a disabling medical condition incurred prior to age 18. ID at
6-10; IAF, Tab 7 at 5. The appellant disagrees, arguing that the administrative
judge failed to adequately consider or otherwise erred in considering his passive
aggressive personality disorder, the presence of his disabilities prior to age 18,
and his limited earnings. PFR File, Tab 1 at 3-4. We find these arguments
unpersuasive.
¶9 The Board has held that the “incapable of self-support” standard is similar
to the Social Security standard of “able to engage in substantial gainful activity,”
and that an applicant’s impairments must render him incapable of performing any
occupation suitable for his age, education, work experience, and residual
functional capacity. Salarzon v. Office of Personnel Management, 44 M.S.P.R.
588, 592 (1990), aff’d, 925 F.2d 1479 (Fed. Cir. 1991) (Table); Sawyer v. Office
of Personnel Management, 36 M.S.P.R. 201, 206 (1988). Although the record
reflects little if any history of the appellant maintaining employment or otherwise
engaging in substantial gainful activity, e.g., IAF, Tab 7 at 18-21, we agree with
the administrative judge’s conclusion that the appellant failed to prove that he is
incapable of self-support as defined under 5 U.S.C. § 8341(a)(4)(B), ID at 8.
¶10 The evidence of record documents a persisting left ear impairment and a
history of psychological difficulties. See, e.g., IAF, Tab 7 at 13, 37, 40, 140, 171,
173. Concerning the appellant’s left ear, the record includes a history of
treatment, as well as a recommendation that the appellant avoid environmental
irritants, such as “change[s] in temperature, cold air, wind, water, and loud
noises.” Id. at 171, 173. Concerning his mental status, the record includes
historical information, such as a 1970 diagnosis of unsocialized aggressive
reaction to childhood, 1989 diagnoses of passive aggressive and anti-social
personality disorders, and treatment for depression symptomology in 1996. Id.
at 13, 37, 140.
¶11 Despite the aforementioned evidence, the administrative judge found little
evidence to support a claim that the appellant’s current condition renders him
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incapable of self-support, ID at 8, and the appellant has failed to identify any on
review. The appellant has directed us to background information about passive
aggressive personality disorder. PFR File, Tab 1 at 3; IAF, Tab 1 at 16-17, Tab 9
at 2-8. However, that background information does not prove the continued
existence or severity of that condition as to the appellant and his ability to
perform any occupation or otherwise support himself. See generally Sawyer, 36
M.S.P.R. at 206 (finding that an appellant had not proven that he was incapable of
self-support where there was little evidence demonstrating the asserted severity of
vision loss, fatigue, and emotional problems). He also has directed us to the fact
that he has a limited history of employment. PFR File, Tab 1 at 3; see IAF, Tab 7
at 18-21. The appellant has not proven that his lack of employment is attributable
to his physical or mental impairments, rather than other factors. See generally
Salarzon, 44 M.S.P.R. at 592 (finding that an applicant’s failure to obtain
employment for reasons unrelated to his physical or mental capabilities is
immaterial to the determination of self-support). Accordingly, we agree with the
administrative judge’s determination that the appellant failed to meet his burden.
Although the appellant showed that he has some limitations, he did not prove that
he is incapable of self-support because of a mental or physical disability incurred
before age 18.
¶12 In his petition, the appellant also asserts that the administrative judge’s
“rulings involve[] abuse of process and affect the outcome of the case.” PFR
File, Tab 1 at 3. Although this seems to be a claim of abuse of discretion, the
appellant failed to provide any further details. A petitioning party must explain
in the petition how an administrative judge’s rulings are inconsistent with
required procedures or involved an abuse of discretion. See Weaver v.
Department of the Navy, 2 M.S.P.R. 129, 133 (1980); 5 C.F.R. §§ 1201.114(b),
1201.115(c). Because he failed to provide that requisite explanation, and because
no abuse of discretion is apparent, the appellant’s argument fails.
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¶13 Finally, the appellant asserts that the administrative judge made a factual
error concerning the date on which his father passed away. PFR File, Tab 1 at 3.
However, although this error may have occurred, we find that it does not warrant
a different outcome in this matter. See Panter v. Department of the Air
Force, 22 M.S.P.R. 281, 282 (1984) (an adjudicatory error that is not prejudicial
to a party’s substantive rights provides no basis for reversal of an initial
decision); see also 5 C.F.R. § 1201.115(a)(1) (any alleged factual error must be
material, meaning of sufficient weight to warrant a different outcome from that of
the initial decision).
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
You have the right to request review of this final decision by the United
States Court of Appeals for the Federal Circuit. You must submit your request to
the court at the following address:
United States Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, DC 20439
The court must receive your request for review no later than 60 calendar
days after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec.
27, 2012). If you choose to file, be very careful to file on time. The court has
held that normally it does not have the authority to waive this statutory deadline
and that filings that do not comply with the deadline must be dismissed. See
Pinat v. Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).
If you need further information about your right to appeal this decision to
court, you should refer to the Federal law that gives you this right. It is found in
Title 5 of the United States Code, section 7703 (5 U.S.C. § 7703) (as rev. eff.
Dec. 27, 2012). You may read this law as well as other sections of the United
States Code, at our website, http://www.mspb.gov/appeals/uscode.htm.
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Additional information 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, and 11.
If you are interested in securing pro bono representation for an appeal to the
United States 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 Merit Systems Protection Board neither endorses the services
provided by any attorney nor warrants that any attorney will accept representation
in a given case.
FOR THE BOARD: ______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.