Alvin Lewis Fuell v. Office of Personnel Management

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ALVIN LEWIS FUELL, DOCKET NUMBER
Appellant, PH-0831-15-0029-I-1
v.
OFFICE OF PERSONNEL DATE: August 4, 2015
MANAGEMENT,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Alvin Lewis Fuell, Baltimore, Maryland, pro se.
Karla W. Yeakle, 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 Office of Personnel Management’s (OPM)’s final decision denying
the appellant’s application for a Civil Service Retirement System (CSRS)
survivor annuity. Generally, we grant petitions such as this one only when: 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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
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 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, and
based on the following points and authorities, 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 The appellant is the surviving spouse of a CSRS annuitant. 2 Initial Appeal
File (IAF), Tab 6 at 13, 24. On May 29, 2002, the appellant’s wife executed a
Standard Form 2801 retirement application, indicating that she was electing an
unreduced annuity payable only during her lifetime. Id. at 19-21. With her
retirement application, she submitted a Spouse’s Consent to Survivor Election
form, which appeared to have been signed by the appellant on April 17, 2002.
Id. at 22. The appellant’s wife indicated on part 1 of the form that she elected
“[n]o regular or insurable interest survivor annuity for my current spouse.” Id.
Above the appellant’s signature in part 2 is the statement, “I freely consent to the
survivor annuity election described in part 1. I understand that my consent is
final (not revocable).” Id. The appellant’s signature is notarized. Id. The
appellant’s wife retired from Federal service effective June 3, 2002. Id. at 24.
¶3 The appellant’s wife died on May 19, 2014, and the appellant applied for a
survivor annuity. Id. at 8-12. On September 23, 2014, OPM issued a final
2
The appellant and his late spouse separated in 1999, but they remained married until
her death. Hearing Compact Diskette (testimony of the appellant).
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decision denying the appellant’s application. Id. at 4-5. OPM explained that it
had determined that the appellant’s wife had elected not to provide him with a
survivor annuity, and that the appellant had irrevocably waived his right to this
benefit by signing the Spouse’s Consent to Survivor Election form. Id. at 6.
¶4 The appellant filed a Board appeal, challenging OPM’s final decision on the
basis that his signature was forged. IAF, Tab 1 at 5, 12. After a telephonic
hearing, the administrative judge issued an initial decision affirming OPM’s final
decision. IAF, Tab 17, Initial Decision (ID) at 1, 4. He considered the
appellant’s argument that he never waived his right to a survivor annuity because
his alleged signature on the consent form is a forgery, but he found that the
appellant submitted insufficient evidence to support this claim. ID at 4. The
appellant filed a petition for review, and OPM filed a response in opposition.
Petition for Review (PFR) File, Tabs 2, 5.
¶5 Generally, a current spouse of a retired CSRS employee is entitled to a
survivor annuity unless he waived his right to a survivor annuity in writing at the
time of his spouse’s retirement. 5 U.S.C. §§ 8339(j)(1), 8341(b)(1); 5 C.F.R.
§ 831.614. Such a waiver is irrevocable. 5 U.S.C. § 8339(j)(1). In this case, the
issue is whether the appellant’s signature on the consent form is genuine. The
appellant bears the burden of proof on this issue. See Cheeseman v. Office of
Personnel Management, 791 F.2d 138, 140-41 (Fed. Cir. 1986) (the burden of
proving entitlement to a survivor annuity is on the applicant for benefits).
¶6 As the administrative judge correctly found, a notary’s certificate of
acknowledgment, regular on its face, carries a presumption of genuineness and
due execution. ID at 4; see Butler v. Encyclopedia Brittanica, 41 F.3d 285
(7th Cir. 1994); 2 Am. Jur. 2d Acknowledgments § 66 (2015). However, a
notary’s certificate is ultimately a form of hearsay evidence that must be weighed
against any evidence to the contrary. Luten v. Office of Personnel Management,
110 M.S.P.R. 667, ¶ 12 (2009). In this case, the administrative judge considered
the appellant’s evidence and argument but found it insufficient to show that the
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notary’s certificate was false and the appellant’s signature was forged. ID at 4.
For the following reasons, we find that the appellant has not presented a
sufficient basis for us to disturb the administrative judge’s finding on review.
¶7 The appellant alleges that his wife forged his signature using a copy of their
1974 marriage license. PFR File, Tab 2 at 4-5, 7, 16, 18, 21-22. He argues that
nobody’s signature remains unchanged for 30 years, id. at 5, 16, 22-23, and that
the signature on the consent form does not match the signature on his marriage
license, id. at 5, 16. We find that these arguments are contradictory, and we
are not certain whether the appellant is arguing that the similarity or the
dissimilarity of the signatures is indicative of forgery. We have reviewed the
copies of the signatures that the appellant submitted on petition for review—one
from his 1974 marriage license and one from the 2002 consent form—and we find
no reason to conclude that the latter was a forgery. Id. at 26-27. The signatures
are not identical, but they appear to have been formed in roughly the same
manner. Id. It does not appear that the signature on the consent form was traced
from the signature on the marriage certificate, as the appellant alleges. Id. at 23,
26-27.
¶8 The appellant also alleges, for the first time on review, that he was busy
moving on April 17, 2002, when he supposedly executed the consent form.
Id. at 24. In support of his allegation, he has attached a copy of a lease agreement
beginning April 15, 2002. Id. at 28-29. However, the Board generally will not
consider evidence and argument submitted for the first time on petition for review
absent a showing that it was previously unavailable despite the party’s due
diligence. Banks v. Department of the Air Force, 4 M.S.P.R. 268, 271 (1980);
Avansino v. U.S. Postal Service, 3 M.S.P.R. 211, 214 (1980). Moreover, the
appellant’s lease was for an apartment in Baltimore, Maryland -- the same city
indicated on the notary’s certificate. PFR File, Tab 2 at 28-29; IAF, Tab 6 at 22.
We find it inherently probable that the appellant could have executed this
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document before a notary in Baltimore around the time that he was moving in the
same city.
¶9 The appellant further argues that he had no reason to waive his survivor
annuity rights, in particular because he was separated from his wife at the time.
PFR File, Tab 2 at 16-20, 22-23. However, there are many reasons, both personal
and financial, that an individual in the appellant’s situation might have chosen to
waive his right to a survivor annuity. We will not speculate as to what the
appellant’s personal, legal, and financial circumstances might have been on
April 17, 2002, but we do not find it inherently improbable that he had some
reason for waiving his survivor annuity right notwithstanding the separation.
¶10 The appellant also argues that notaries sometimes do favors for friends and
family, and he attaches a list of elements for lawful notarization as published by
the American Society of Notaries. Id. at 5, 30-31. The appellant, though, has not
given us a sufficient basis to find that the notarization in this case was a forgery
done as a favor for his wife or that the requirements for a lawful notarization
were not met.
¶11 Finally, the appellant argues that the outcome of the initial decision was
unjust in light of his 40 years of marriage. Id. at 4, 22. However, the equities of
the situation do not empower OPM or the Board to award monetary benefits in the
absence of statutory authorization. A claim for payment of money from the
public treasury that is contrary to a statutory appropriation is prohibited by the
Appropriations Clause of the Constitution, Article I, Section 9, Clause 7, and the
government cannot be estopped from denying benefits not otherwise permitted by
law. Office of Personnel Management v. Richmond, 496 U.S. 414, 424, 434.
(1990).
¶12 Base on the foregoing, we find that the appellant has not provided a basis
for disturbing the initial decision affirming OPM’s final decision.
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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.
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 appeal to
the 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.
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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.