Matilda Miles v. Office of Personnel Management ( 2024 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
MATILDA G. MILES, DOCKET NUMBER
Appellant, AT-0843-18-0494-I-2
v.
OFFICE OF PERSONNEL DATE: June 28, 2024
MANAGEMENT,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Matilda G. Miles , Vicksburg, Mississippi, pro se.
Jane Bancroft , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member*
*Member Kerner did not participate in the adjudication of this appeal.
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) finding that she was not eligible for survivor annuity benefits under the
Federal Employees’ Retirement System (FERS). Generally, we grant petitions
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
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 and AFFIRM the initial
decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
BACKGROUND
The appellant married the decedent, William A. Miles, in Tennessee on
November 14, 2000. Miles v. Office of Personnel Management, MSPB Docket
No. AT-0843-18-0494-I-1, Initial Appeal File (IAF), Tab 9 at 13. The decedent
retired from his Federal civilian position under FERS on or around
November 30, 2004. Id. at 21. At the time of his retirement, he elected a reduced
annuity with maximum survivor annuity for the appellant. Id. He filed for
divorce from the appellant, and the Chancery Court for Lake County, Tennessee,
issued a Final Decree of Divorce on February 17, 2009. Id. at 15-17. The Final
Decree of Divorce did not specifically include a provision regarding the
decedent’s retirement annuity benefits or the appellant’s entitlement to a survivor
annuity. Id.The decedent passed away on August 31, 2017. Id. at 14.
Shortly thereafter, the appellant filed an application for survivor annuity benefits
with OPM as a widow. Id. at 9-12. In a January 30, 2018 decision, OPM found
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that the appellant was not eligible for survivor annuity benefits as the former
spouse of the decedent because “a review of the court order indicate[d] that [she
was] not awarded a survivor annuity.” Id. at 7. The appellant requested
reconsideration. Id. at 4. In a May 8, 2018 reconsideration decision, OPM
affirmed its initial decision. Id. at 4-6.
The appellant filed an appeal with the Board challenging OPM’s
reconsideration decision, and she requested a hearing. IAF, Tab 1.
The administrative judge dismissed the appeal without prejudice to provide the
appellant an opportunity to petition the court that issued the divorce decree to
modify or quash it based on her claim of mistake and/or fraud. IAF, Tab 10
at 1-3. He gave the appellant up to 6 months to refile the appeal. Id. at 2.
The appellant refiled the appeal less than 2 weeks later. Miles v. Office of
Personnel Management, MSPB Docket No. AT-0843-18-0494-I-2, Appeal File
(I-2 AF), Tab 1 at 1. Following a telephonic hearing, I-2 AF, Tab 8, the
administrative judge issued an initial decision affirming OPM’s reconsideration
decision, I-2 AF, Tab 9, Initial Decision (ID) at 1, 3-5. He found that, although
the appellant claimed that she had not been notified of the divorce and OPM
should honor the decedent’s election of a survivor annuity at the time of his
retirement, an individual’s marital status is determined by state law. ID at 4.
He noted that the appellant acknowledged at the hearing that the divorce decree
was an authentic court order and that the issuing court refused to modify it based
on her recent requests. Id. He determined that the appellant was not entitled to a
survivor annuity as a former spouse because there was no evidence that the
decedent elected to provide her with a survivor annuity under 5 U.S.C. § 8417(b)
at any time after the divorce or that the divorce decree expressly provided her
with a survivor annuity. ID at 4-5 (citing 5 U.S.C. § 8445(a)).
The appellant has filed a petition for review. Petition for Review (PFR)
File, Tab 1. OPM has not filed a response.
4
DISCUSSION OF ARGUMENTS ON REVIEW
On review, the appellant does not make any arguments or provide any
evidence to demonstrate error by the administrative judge. Rather, she simply
asserts that she is filing a petition for review because the administrative judge
affirmed the agency’s action. Id. We find that the appellant’s one-sentence
petition for review does not meet the Board’s criteria for review under 5 C.F.R.
§ 1201.115. See Tines v. Department of the Air Force, 56 M.S.P.R. 90, 92 (1992)
(finding that a petition for review must contain sufficient specificity to enable the
Board to ascertain whether there is a serious evidentiary challenge justifying a
complete review of the record); see also Weaver v. Department of the Navy,
2 M.S.P.R. 129, 133 (1980) (determining that, before the Board will undertake a
complete review of the record, the petitioning party must explain why the
challenged factual determination is incorrect, and identify the specific evidence in
the record which demonstrates the error) , review denied, 669 F.2d 613 (9th Cir.
1982) (per curiam).
Nonetheless, the Board has found that the strict application of the
adversarial model of adjudication is not always appropriate in a case involving
retirement annuity benefits, including survivor annuity benefits. Searcy v. Office
of Personnel Management, 98 M.S.P.R. 598, ¶ 8 (2005). Under the particular
circumstances of this appeal, including the appellant’s pro se status and her
statement that she had “no knowledge” of the divorce decree and that she took
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care of the decedent until his death, 2 IAF, Tab 1 at 3, we have conducted a full
review of the record.
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). We discern no error with the administrative judge’s
reliance on 5 U.S.C. § 8445(a), which governs the rights of former spouses. As
noted above, the appellant and the decedent divorced in 2009, and the appellant
acknowledged that the divorce decree was an authentic court order. Based on this
evidence, we must view the appellant as a former spouse in our assessment of her
entitlement to a survivor annuity.
Pursuant to 5 U.S.C. § 8445(a), the appellant’s entitlement to a former
spouse survivor annuity can arise “if and to the extent expressly provided for in
an election under [5 U.S.C. §] 8417(b)” or “the terms of any decree of divorce . . .
or any court order or court-approved property settlement agreement incident to
such decree.” The administrative judge found that neither circumstance arises
here, ID at 4-5, and we agree with his analysis. First, an election under 5 U.S.C.
§ 8417(b) must “be made at the time of retirement or, if the marriage is dissolved
2
The administrative judge noted that the appellant indicated below that the decedent
was not mentally competent to sign documents on his own behalf. ID at 4. Indeed, in
her initial appeal form, the appellant asserted, “I were his oversee over his check, taking
care of everything, he were mentally empaired, should been aloud to sign paper or
Anything.” IAF, Tab 1 at 3 (spelling, grammar, capitalization, and punctuation as in
original). Because the appellant clearly does not seek to invalidate any survivor annuity
election made by the decedent, we construe her assertion as referring to the decedent’s
alleged mental incompetence at the time he signed the divorce decree. However, the
Board lacks jurisdiction to address such a claim. See, e.g., Maddox v. Merit Systems
Protection Board, 759 F.2d 9, 10 (Fed. Cir. 1985) (stating that 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); see also Adler v. Office of Personnel Management,
114 M.S.P.R. 651, ¶ 10 (2010) (explaining that the Board lacks jurisdiction to review
actions by state courts), aff’d, 437 F. App’x 928 (Fed. Cir. 2011). If the appellant
wishes to further pursue this issue, she must do so before the relevant jurisdiction. See,
e.g., Adler, 114 M.S.P.R. 651, ¶¶ 3, 10 (discussing 5 C.F.R. § 838.224 and explaining
that the appellant must return to the local court to obtain a court order to declare an
order regarding a Civil Service Retirement System annuity payment/lump sum
credit/survivor annuity invalid or to set it aside).
6
after the date of retirement, within 2 years after the date on which the marriage of
the former spouse to the employee . . . is so dissolved.” It is undisputed that the
decedent made no election of a survivor annuity for the appellant at any time
from the date of the divorce to the date of his death. ID at 5. Second, pursuant to
5 C.F.R. § 838.804(a), a court order awarding a former spouse survivor annuity is
not a court order acceptable for processing unless it expressly awards a former
spouse survivor annuity or expressly directs an employee or retiree to elect to
provide a former spouse survivor annuity as described in subsection (b).
The administrative judge examined the Final Decree of Divorce, and he correctly
concluded that this decree did not expressly provide the appellant a survivor
annuity. 3 ID at 5. We therefore discern no basis to disturb the administrative
judge’s determination that OPM’s reconsideration decision must be affirmed.
NOTICE OF APPEAL RIGHTS 4
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
3
The Final Decree of Divorce “adopt[ed,] affirm[ed,] and ratifie[d] the property
settlement agreement” and incorporated by reference the agreement into the final
decree. IAF, Tab 9 at 17. However, the record does not contain a copy of any property
settlement agreement.
4
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.
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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.
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(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:
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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. 5 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).
5
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
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510.
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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
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.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.