Mark E. Cahill v. Office of Personnel Management ( 2014 )


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  •                            UNITED STATES OF AMERICA
    MERIT SYSTEMS PROTECTION BOARD
    MARK E. CAHILL,                                 DOCKET NUMBER
    Appellant,                        DE-0831-13-1773-I-1
    v.
    OFFICE OF PERSONNEL                             DATE: November 17, 2014
    MANAGEMENT,
    Agency.
    THIS FINAL ORDER IS NONPRECEDENTIAL *
    Mark E. Cahill, Columbia Falls, Montana, pro se.
    Cynthia Reinhold, Washington, D.C., for the agency.
    BEFORE
    Susan Tsui Grundmann, Chairman
    Anne M. Wagner, Vice Chairman
    Mark A. Robbins, Member
    FINAL ORDER
    ¶1         The appellant has filed a petition for review of the initial decision, which
    dismissed the appeal of a final decision by the Office of Personnel Management
    (OPM) denying survivor annuity benefits under the Civil Service Retirement
    System (CSRS) for lack of jurisdiction, finding that the appellant filed the appeal
    *
    A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
    on behalf of his mother’s estate after her death. For the following reasons, we
    AFFIRM the administrative judge’s finding that the appellant cannot initiate an
    appeal on behalf of his mother’s estate; however, we MODIFY the initial decision
    to find that the Board has jurisdiction to consider the appellant’s individual
    claims for benefits under CSRS and AFFIRM OPM’s decision denying the
    appellant benefits based on his father’s federal service.     Except as expressly
    modified by this Final Order, we AFFIRM the initial decision.
    BACKGROUND
    ¶2        The appellant’s father (retiree) had retired from federal service in 1978,
    electing a maximum survivor annuity for his then wife, who was also the
    appellant’s mother, before the couple divorced in 1981. Initial Appeal File (IAF),
    Tab 1 at 5, Tab 11 at 31-33. After the death of the retiree in June 1991, IAF,
    Tab 11 at 30, OPM determined that his former wife was not entitled to a former
    spouse survivor annuity benefit under the divorce decree issued prior to the
    enactment of the Civil Service Retirement Spouse Equity Act of 1984 (1984 Act),
    id.; see IAF, Tab 11 at 5, 12. OPM determined that the retiree’s annuity should
    have been adjusted from the elected reduced rate to the life rate at the time of the
    divorce.   IAF, Tab 1 at 5, Tab 11 at 19.     Following an application for death
    benefit filed by the appellant and his sister, IAF, Tab 11 at 14, 20-21, OPM
    recomputed the retiree’s annuity retroactive to the date of the dissolution of the
    marriage and provided the appellant and his sister a lump-sum payment, which
    included the retroactive adjustment, IAF, Tab 1 at 5, Tab 11 at 17-19.
    ¶3        In June 2012, after his mother’s death, and more than 20 years after the
    retiree’s death, the appellant contacted OPM, asserting his mother’s purported
    entitlement to former spouse survivor annuity benefits.       Petition for Review
    (PFR) File, Tab 3 at 3-4. OPM responded that all available benefits had been
    paid to the appellant and his sister and that his mother was not eligible for a
    survivor annuity for the reasons provided in 1991. IAF, Tab 11 at 11-13. The
    3
    appellant continued to pursue additional benefits from OPM, particularly on the
    grounds that OPM had erroneously denied payment of a survivor annuity to his
    mother as provided for in his parents’ 1981 property settlement agreement. IAF,
    Tab 13. OPM issued a final decision in June 2013, affirming its prior decisions
    that all available benefits had been paid to the appellant and his sister and that the
    dissolution decree and property settlement agreement between the appellant’s
    parents was unacceptable for processing survivor annuity benefits. IAF, Tab 1
    at 5.
    ¶4           The appellant filed this appeal and identified his deceased mother as the
    appellant in the claim, arguing that OPM has misinterpreted the law in denying
    her survivor benefits. IAF, Tab 1 at 1-2. OPM argued that the appellant’s mother
    was ineligible for such benefits because the property settlement agreement
    apportioning a share of the retiree’s benefits was entered prior to the enactment of
    the 1984 Act, and the mother had remarried prior to the age of 55. IAF, Tab 11
    at 5; see 
    5 C.F.R. §§ 838.802
    , 838.1004. The administrative judge dismissed the
    appeal for lack of jurisdiction, finding that the OPM decision under appeal is
    whether the estate of the appellant’s deceased mother is entitled to survivor
    annuity benefits, and the estate lacked standing to file the Board appeal after the
    death of the appellant’s mother. IAF, Tab 20, Initial Decision (ID) at 4-5.
    ¶5           On review, the appellant asserts that he did not file a claim on behalf of the
    estate of his mother but rather requested payment of the accrued annuity
    “pursuant to the Federal order of precedence and applicable statutes.” PFR File,
    Tab 3 at 2. He asserts that OPM failed to provide adequate notice regarding
    reelection rights, and claims damages from his mother’s former spouse annuity
    benefits “as the natural object of [his] parents[’] bounty.” 
    Id. at 3
    .
    DISCUSSION OF ARGUMENTS ON REVIEW
    ¶6           The Board’s jurisdiction is not plenary; it is limited to those matters over
    which it has been given jurisdiction by law, rule, or regulation. Maddox v. Merit
    4
    Systems Protection Board, 
    759 F.2d 9
    , 10 (Fed. Cir. 1985). The appellant bears
    the burden of proof of establishing Board jurisdiction by a preponderance of the
    evidence. 
    5 C.F.R. § 1201.56
    (a)(2)(i). The burden of proving entitlement to a
    survivor annuity is on the applicant for benefits.         Cheeseman v. Office of
    Personnel Management, 
    791 F.2d 138
    , 140-41 (Fed. Cir. 1986); 
    5 C.F.R. § 1201.56
    (a)(2).
    ¶7         To the extent that the appellant filed the appeal on behalf of his mother for
    former spouse annuity benefits, we agree with the administrative judge that the
    appellant lacks standing and that the estate cannot file an appeal after the death of
    the individual claiming benefits.     Although the Board’s regulations permit a
    properly substituted party to pursue the appeal of an appellant who dies or is
    unable to pursue the appeal, 
    5 C.F.R. § 1201.35
    , they do not provide for a
    substitution of a party before the appeal is filed, Glover v. Department of the
    Army, 
    94 M.S.P.R. 534
    , ¶ 10 (2003).        The Board has applied this prohibition
    against an estate or survivor initiating an appeal in a range of claims, including
    individual right of action and chapter 75 appeals, and the principle also applies to
    appellants in retirement appeals.      See 
    id., ¶ 9
    ; see also Estate of Pyc v.
    Department of Veterans Affairs, 
    73 M.S.P.R. 326
    , 328 & n.2 (1997). The U.S.
    Court of Appeals for the Federal Circuit has upheld the Board’s determination
    that the right to file for a CSRS annuity is personal and that the wife of an
    individual with the right to file for an annuity generally lacks standing to file the
    application.       Oshiver    ex    rel.   Oshiver    v.   Office    of   Personnel
    Management, 
    896 F.2d 540
    , 541 (Fed. Cir. 1990).            The appellant made no
    argument supporting his assertion that 
    5 C.F.R. § 1201.35
     provides for an appeal
    following the death of the individual with appeal rights, and the plain language of
    the regulation clearly provides for a contingency “[i]f an appellant dies.” In the
    present case, the appellant’s mother had not filed an appeal and thus was not an
    appellant whose death would permit a substitution of a proper party. PFR File,
    Tab 3 at 3. The appellant has failed to show error in the administrative judge’s
    5
    analysis that the regulations do not permit a substitution of party prior to the
    filing of an appeal.
    ¶8         In his petition for review, the appellant asserts that he filed the claim on his
    own behalf and not on behalf of his mother’s estate. PFR File, Tab 3 at 2. The
    Board has jurisdiction to hear an appeal of a final OPM determination affecting
    an individual’s right or interests under the federal retirement laws.       
    5 C.F.R. § 1201.3
    (a)(2).   In the present case, OPM provided a final decision to the
    appellant denying survivor annuity benefits based on his father’s federal service,
    notifying him of his right to appeal the decision to the Board. IAF, Tab 1 at 5-6.
    Although the appellant’s pleadings before the administrative judge seemed to
    seek benefits on behalf of his mother’s estate, we note that the appellant also
    argued that authority exists for a payment of a deceased former spouse’s share of
    an annuity to one or more of the retiree’s children, IAF, Tab 18 at 4, and OPM
    decided in part that all benefits had been properly paid to the appellant and his
    sister upon his application, IAF, Tab 1 at 5-6, Tab 11 at 9, 11, 14, 17-19. We
    thus find Board jurisdiction over the appellant’s individual claims for benefits as
    asserted, despite agreeing with the administrative judge that the appellant lacks
    standing to file an appeal for survivor annuity benefits on behalf of his mother’s
    estate.   See ID at 4-5.   However, for the following reasons, we find that the
    appellant has not met his burden of proving entitlement to a survivor annuity or
    any other benefits.
    ¶9         The appellant has not made a nonfrivolous allegation that he is entitled to
    any survivor benefits associated with his father’s federal service. He has made no
    argument that he qualifies for a survivor annuity on his own account as the child
    of the employee under 
    5 U.S.C. § 8341
    (a)(4). As for the appellant’s assertions
    that he is entitled to the survivor annuity intended for his mother, he
    mischaracterizes OPM’s regulations, including those concerning the death of the
    former spouse receiving CSRS benefits. For instance, the appellant cites OPM’s
    regulation at 
    5 C.F.R. § 838.1012
    (b)(4), which states that OPM will honor a
    6
    qualifying court order directing OPM to pay, after the death of the former spouse,
    the former spouse’s share of the employee annuity to one or more of the retiree’s
    children as defined by statute.    PFR File, Tab 3 at 4.       However, 
    5 C.F.R. § 838.1012
    (a) provides that “[u]nless the qualifying court order expressly
    provides otherwise, the former spouse’s share of employee retirement benefits
    terminates on the last day of the month before the death of the former spouse.”
    Thus, contrary to the appellant’s assertion, the regulations establish that the
    retirement benefits terminate with the death of the former spouse unless otherwise
    instructed by a qualifying court order. See PFR File, Tab 3 at 4. His citation
    to 
    5 U.S.C. § 8424
    (g) regarding unpaid accrued annuity benefits is irrelevant, as
    the statute concerns the Federal Employees’ Retirement System and the
    appellant’s father received benefits under CSRS. 
    Id. at 3-4
    .    To the extent that
    the appellant sought to reference the order of precedence for a lump-sum payment
    under CSRS pursuant to 
    5 U.S.C. § 8342
    , we note that the record indicates that
    OPM paid a lump-sum to both the appellant and his sister in 1991, after their
    father’s death. See IAF, Tab 11 at 17-19.
    ¶10        We have considered the appellant’s other arguments and find that they
    pertain to whether his mother should have been entitled to a former spouse
    survivor annuity based on alleged errors by OPM. See, e.g., PFR File, Tab 3 at 3.
    He has not shown, and we are not aware of, any valid basis for concluding that
    any such errors affected any right or interest belonging to him individually under
    federal retirement law.
    NOTICE TO THE APPELLANT REGARDING
    YOUR FURTHER REVIEW RIGHTS
    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 have the right to
    request the United States Court of Appeals for the Federal Circuit to review this
    final decision.   You must submit your request to the court at the following
    address:
    7
    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.
    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 your court
    appeal, you may visit our website at http://www.mspb.gov/probono for a list of
    attorneys who have expressed interest in providing pro bono representation for
    Merit Systems Protection Board appellants before the court. The Merit Systems
    8
    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.