Hildaura Quiros v. Office of Personnel Management ( 2024 )


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  •                            UNITED STATES OF AMERICA
    MERIT SYSTEMS PROTECTION BOARD
    HILDAURA QUIROS,                                DOCKET NUMBER
    Appellant,                         AT-0831-18-0214-I-1
    v.
    OFFICE OF PERSONNEL                             DATE: February 2, 2024
    MANAGEMENT,
    Agency.
    THIS FINAL ORDER IS NONPRECEDENTIAL 1
    Hildaura Quiros , Miami, Florida, pro se.
    Alison Pastor , Washington, D.C., for the agency.
    BEFORE
    Cathy A. Harris, Vice Chairman
    Raymond A. Limon, Member
    FINAL ORDER
    ¶1         The appellant has filed a petition for review of the initial decision, which
    affirmed the final decision of the Office of Personnel Management (OPM),
    denying her application for a Civil Service Retirement System (CSRS) survivor
    annuity. On petition for review, the appellant reasserts that she is entitled to a
    CSRS survivor annuity because she was the decedent’s common law wife, the
    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    A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
    decedent designated her as the beneficiary of his estate, and they had three
    children together, two of which were “underage.” Petition for Review (PFR) File,
    Tab 1 at 4-6. She also argues, for the first time on review, that the decedent “sent
    in” a “survivor benefit election change form,” in which he “chang[ed] the option
    of having [his former spouse] as his survivor beneficiary before his death” and
    that OPM discriminated against her in denying her a survivor annuity. 
    Id.
     She
    further claims that she mailed the referenced change of election form, court order,
    and “documentation” supporting her status as the decedent’s common law wife to
    the Board in support of her petition for review. PFR File, Tab 1 at 4-6, Tab 5
    at 3.
    ¶2           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 and AFFIRM the initial decision, which is now the Board’s
    final decision. 
    5 C.F.R. § 1201.113
    (b).
    ¶3           The appellant bears the burden of proving her entitlement to the survivor
    annuity that she seeks by a preponderance of the evidence.                 
    5 C.F.R. § 1201.56
    (b)(2)(ii). As the administrative judge assumed without finding that the
    decedent and the appellant were legally married, the relevant dispute is whether
    the administrative judge erred in finding that the decedent did not elect a survivor
    3
    annuity in the appellant’s favor.    Initial Appeal File (IAF), Tab 11, Initial
    Decision (ID) at 3-4. The appellant argues that the evidence she mailed to the
    Board with her petition for review proves that he made such an election. PFR
    File, Tab 1 at 4-6. However, the Board has no record of receiving the referenced
    mailing. On review, the Board has received the appellant’s electronically filed
    petition for review and reply to the agency’s response, neither of which contains
    the referenced documents. PFR File, Tabs 1, 5. The appellant contends that the
    tracking information she submits with her reply shows that the Board received the
    mailing. PFR File, Tab 5 at 3. We disagree. The tracking receipt merely reflects
    that a package was mailed from Panama City, Panama, to Washington, D.C.; it
    does not contain a delivery address, or any other recipient information showing
    the package was mailed to the Board. 
    Id. at 4
    ; see Gaydon v. U.S. Postal Service,
    
    62 M.S.P.R. 198
    , 202-03 (1994) (finding that the appellant was not entitled to the
    rebuttable presumption that his petition for review was received by the Board
    because he failed to present specific, credible evidence that it was properly
    addressed to the Board with postage prepaid and placed in the U.S. Postal Service
    mail stream).
    ¶4        Moreover, the appellant failed to provide the purported evidence below,
    despite being notified of her burden and being afforded an opportunity to
    supplement the record before it closed. IAF, Tab 10. Under 
    5 C.F.R. § 1201.115
    ,
    the Board generally will not consider evidence submitted for the first time with
    the petition for review absent a showing that it was unavailable before the record
    was closed despite the party’s due diligence. Avansino v. U.S. Postal Service,
    
    3 M.S.P.R. 211
    , 214 (1980). The appellant has not explained why she failed to
    submit the documentation before the close of the record, even though she asserts
    they were in her possession before the decedent’s death. PFR File, Tab 1 at 4.
    Furthermore, although the appellant apparently was aware that the additional
    documents were not in the record, she did not attach them to her reply or file a
    motion for leave to supplement the record on review. PFR File, Tab 5 at 3; see
    4
    
    5 C.F.R. § 1201.114
    (a)(5), (k). We therefore find that the appellant has not acted
    with   due   diligence   in   attempting    to   provide   this   additional   evidence.
    Accordingly, the appellant’s arguments do not provide a basis for review. 2
    ¶5          As for the appellant’s discrimination claim, she raises it for the first time on
    review. PFR File, Tab 1 at 5. Generally, the Board will not consider an argument
    raised for the first time in a petition for review absent a showing that it is based
    on new and material evidence not previously available despite the party’s due
    diligence. Banks v. Department of the Air Force, 
    4 M.S.P.R. 268
    , 271 (1980).
    We find that the appellant has not made that necessary showing and decline to
    consider this new allegation.
    NOTICE OF APPEAL RIGHTS 3
    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
    2
    In finding that the appellant was not entitled to a survivor annuity, the administrative
    judge relied on the definition of a widow under the Federal Employee Retirement
    System (FERS), 
    5 U.S.C. § 8441
    (2)(A), rather than the provision under CSRS, 
    5 U.S.C. § 8341
    (a)(1). ID at 3. The FERS and CSRS provisions are indistinguishable. Compare
    
    5 U.S.C. § 8341
    (a), with 
    5 U.S.C. § 8441
    (2)(A). Nevertheless, whether the appellant
    qualifies as a widow is irrelevant in the absence of a valid election for a survivor
    annuity in her favor, as explained above. See 
    5 U.S.C. § 8341
    (b)(1). Thus, we find that
    the administrative judge’s error in relying on provisions applicable to FERS was not
    prejudicial to the appellant’s substantive rights and does not form a basis for reversing
    the initial decision. See Panter v. Department of the Air Force , 
    22 M.S.P.R. 281
    , 282
    (1984); see also Larson v. Office of Personnel Management, 
    93 M.S.P.R. 433
    , ¶¶ 6-7
    (2003) (finding that an administrative judge’s error in applying a CSRS legal standard,
    when the appellant was covered under FERS, did not form a basis for reversing the
    initial decision when the error did not affect the appellant’s substantive rights).
    3
    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.
    5
    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:
    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
    6
    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
    7
    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
    4
    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.
    8
    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
    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.
    9
    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.
    

Document Info

Docket Number: AT-0831-18-0214-I-1

Filed Date: 2/2/2024

Precedential Status: Non-Precedential

Modified Date: 2/5/2024