UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
EDWIN J. HARRIS, DOCKET NUMBER
Appellant, DE-0843-15-0066-I-1
v.
OFFICE OF PERSONNEL DATE: February 10, 2016
MANAGEMENT,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Edwin J. Harris, Kila, Montana, 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 reconsideration decision of the Office of Personnel Management
(OPM) denying his 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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).
2
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. 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).
DISCUSSION OF ARGUMENTS ON REVIEW
¶2 The appellant is the surviving spouse of Crystal Harris, a Federal
Employees’ Retirement System retiree. Initial Appeal File (IAF), Tab 8 at 33, 35.
On January 25, 2012, Mrs. Harris submitted an Application for Immediate
Retirement, Standard Form 3107, electing an annuity payable only during her
lifetime. Id. at 29-31. With her application, Mrs. Harris included a notarized
consent form signed by the appellant, indicating that he consented to
Mrs. Harris’s annuity election. Id. at 32.
¶3 Mrs. Harris retired from Federal service on a disability retirement, effective
April 12, 2012. Id. at 35. Approximately 10 months later, she was hospitalized.
IAF, Tab 13, Hearing Compact Disc (HCD) at 3:30-4:05 (testimony of the
appellant). According to the appellant, at that juncture, Mrs. Harris decided that
she had erred in not electing a survivor annuity, and she intended to change her
annuity election as soon as she left the hospital. Id. at 4:08-4:27.
3
¶4 Unfortunately, Mrs. Harris never left the hospital. Id. at 4:29-4:35. On or
about March 29, 2013, she became incapacitated to handle her personal affairs.
IAF, Tab 1 at 10; HCD at 4:36-4:51. Thereafter, the appellant telephoned OPM
to inquire about changing Mrs. Harris’s survivor annuity election pursuant to a
power of attorney. HCD at 5:12-5:51; see IAF, Tab 1 at 7-9. The appellant
contends, and OPM does not dispute, that an OPM representative told him that
only Mrs. Harris could change the election and that OPM would not accept the
power of attorney. 2 HCD at 6:34-6:49; see IAF, Tab 8; Petition for Review (PFR)
File, Tab 4. The appellant did not pursue the matter further at that time. IAF,
Tab 1 at 5; HCD at 6:50-7:16 (testimony of the appellant).
¶5 Mrs. Harris died on May 6, 2013, approximately 13 months after her
retirement. IAF, Tab 8 at 33. On May 28, 2013, the appellant wrote to OPM,
stating that OPM had provided him with misinformation regarding the ability to
change Mrs. Harris’s annuity election pursuant to the power of attorney, and
requesting that “Survivor Benefits for [Mrs. Harris] [be] allowed as she wished
on her death bed.” IAF, Tab 1 at 12. The appellant subsequently filed an
application for survivor annuity benefits, which OPM denied on the ground that
its records reflected that Mrs. Harris did not elect to provide a survivor annuity
for the appellant. IAF Tab 8 at 8, 17-20. The appellant requested
reconsideration, and OPM issued a reconsideration decision affirming its initial
decision. Id. at 6-7, 15.
¶6 The appellant filed a timely Board appeal challenging OPM’s
reconsideration decision, arguing that OPM should have allowed him to change
Mrs. Harris’s survivor annuity election pursuant to the power of attorney. IAF,
Tab 1 at 1, 5. Following a telephonic hearing, the administrative judge affirmed
OPM’s reconsideration decision. IAF, Tab 14, Initial Decision (ID). He found
2
The appellant asserted that both the Federal Long Term Care Insurance Program and
the Thrift Savings Plan allowed him to make changes pursuant to the power of attorney.
HCD at 5:53-6:33 (testimony of the appellant).
4
that OPM did not provide sufficient information to afford deference to its policy
regarding powers of attorney. ID at 4 n.1; see IAF, Tab 8 at 4-5. Therefore, he
assumed without finding that the appellant could have changed Mrs. Harris’s
survivor annuity election pursuant to that instrument and that the OPM
representative provided the appellant with misinformation. ID at 4, 6. However,
the administrative judge found that a valid election to provide the appellant with a
survivor annuity was not filed with OPM prior to Mrs. Harris’s death, as required
by 5 C.F.R. § 842.610(b)(6), and that the appellant failed to establish any grounds
for waiver of this deadline. ID at 5-7.
¶7 The appellant has filed a petition for review, and the agency has responded
to the petition for review. PFR File, Tabs 1, 4. On September 11, 2015, the
Board issued a show cause order directing OPM to submit evidence and argument
regarding whether OPM has a policy prohibiting power of attorney filings, and
affording the appellant the opportunity to respond to OPM’s submission.
PFR File, Tab 5 at 2. Both parties timely responded to the show cause order.
PFR File, Tabs 8, 10.
DISCUSSION OF ARGUMENTS ON REVIEW
¶8 An individual seeking retirement benefits bears the burden of proving
entitlement to those benefits by preponderant evidence. Cheeseman v. Office of
Personnel Management, 791 F.2d 138, 140-41 (Fed. Cir. 1986); 5 C.F.R.
§ 1201.56(a)(2). Under 5 U.S.C. § 8416(d)(1), an annuitant, such as Mrs. Harris,
who was married at the time of retirement and jointly waived any right that her
spouse had to a survivor annuity, has an 18-month window after her retirement to
elect to reduce her monthly annuity payment to provide a survivor annuity for her
spouse. However, pursuant to an OPM regulation, such an election must be made
before the retiree dies. 5 C.F.R. § 842.610(b)(1), (6).
¶9 Thus, although Mrs. Harris could have elected to provide the appellant with
a survivor annuity within an 18-month window after her retirement, she had to
5
file such an election with OPM prior to her death, which occurred approximately
13 months after her retirement. See 5 U.S.C. § 8416(d)(1); 5 C.F.R.
§ 842.610(b)(1), (6); IAF, Tab 8 at 33, 35.
¶10 Neither Mrs. Harris, nor the appellant acting on her behalf pursuant to the
power of attorney, filed an election of a survivor annuity with OPM prior to her
death. IAF, Tab 1 at 5; PFR File, Tab 1; see IAF, Tab 8 at 12. Therefore, the
pertinent inquiry is whether the appellant established a basis for waiver of
this deadline.
¶11 The Board has recognized three bases for waiving a filing deadline
prescribed by statute or regulation: (1) the statute or regulation may provide for a
waiver under specified circumstances; (2) an agency’s affirmative misconduct
may preclude enforcement of the deadline under the doctrine of equitable
estoppel; and (3) an agency’s failure to provide a notice of rights and the
applicable filing deadline, where such notice is required by statute or regulation,
may warrant a waiver of the deadline. Perez Peraza v. Office of Personnel
Management, 114 M.S.P.R. 457, ¶ 7 (2010).
¶12 In the present appeal, the appellant has not challenged the administrative
judge’s finding that the first potential basis for waiver does not apply, and we
discern no reason to disturb this finding on review. ID at 5; PFR File, Tab 1.
¶13 However, the appellant argues on review that basis (2), the doctrine of
equitable estoppel, warrants waiver of the filing deadline. PFR File, Tab 1 at 1-3.
In OPM’s response to the show cause order, it argues that equitable estoppel is
unavailable as a potential basis for waiver under Office of Personnel
Management v. Richmond, 496 U.S. 414 (1990). PFR File, Tab 8 at 10-11. We
agree with the administrative judge that equitable estoppel is available as a
potential basis for waiver but that the requirements for invoking the doctrine
are not met here. ID at 5-6.
¶14 Richmond holds that estoppel against the Government cannot result in the
payment of money not otherwise provided for by law. 496 U.S. at 415-16, 424,
6
434. However, the Board previously has held that equitable estoppel would not
result in the unlawful expenditure of appropriated funds in violation of Richmond
where appellants untimely sought to provide for or increase survivor annuities.
See Nunes v. Office of Personnel Management, 111 M.S.P.R. 221, ¶¶ 16, 18
(2009) (finding that equitable estoppel would not result in the unlawful
expenditure of funds where an appellant sought to reduce his Civil Service
Retirement System (CSRS) annuity to provide his spouse with a survivor annuity,
although his election of a survivor annuity was untimely); Blaha v. Office of
Personnel Management, 106 M.S.P.R. 265, ¶¶ 7-9 (2007) (determining that
equitable estoppel would not result in the unlawful expenditure of funds where an
appellant untimely sought to change her CSRS annuity election to provide her
domestic partner with a survivor annuity).
¶15 OPM contends that the present case is distinguishable from prior cases in
which the Board has held that equitable estoppel is available as a potential basis
for waiver because Mrs. Harris did not “pay for” a survivor annuity by receiving
a reduced annuity during her lifetime. PFR File, Tab 8 at 11. We find this
argument unpersuasive. We perceive no pertinent distinction between the present
case and a situation where a retiree dies immediately after filing an election with
OPM. In either scenario, the retiree did not “pay for” the survivor annuity
through receipt of a reduced annuity during his or her lifetime. However, OPM
permits a survivor to collect an annuity if the retiree died before his or her
payments were reduced, provided that the retiree paid the required deposit in
accordance with 5 U.S.C. § 8416(d)(2)(B) and 5 C.F.R. § 842.610(b)(3).
¶16 Here, if the filing deadline were waived, OPM could simply reduce the
appellant’s survivor annuity to recover the deposit that Mrs. Harris was required
by law to make to entitle the appellant to such an annuity. See Thomas v. Office
of Personnel Management, 95 M.S.P.R. 695, ¶¶ 2, 7-10 (2004) (finding that OPM
was in compliance with an order to provide a CSRS survivor annuity when it
reduced the annuity to recover the deposit that the appellant’s decedent was
7
required to make). For these reasons, we discern no reason to depart from the
Board’s prior decisions in Nunes and Blaha, and find that Richmond is not a
barrier to the availability of equitable estoppel as a possible basis for waiver.
¶17 Nevertheless, although equitable estoppel is available as a potential basis
for waiver, we agree with the administrative judge that equitable estoppel
does not form a basis for waiving the regulatory filing deadline under the facts of
this case. ID at 5-6. The appellant argues on review that the filing deadline
should be waived based on the doctrine of equitable estoppel because OPM
negligently provided him with misinformation when the OPM representative told
him that he could not change Mrs. Harris’s survivor annuity election pursuant to a
power of attorney. PFR File, Tab 1 at 1-3. In OPM’s response to the show cause
order, OPM submitted evidence, in the form of printouts from OPM’s website and
OPM’s Representative Payee Application, indicating that OPM will not make a
payee change based upon a power of attorney and that OPM does not recognize
power of attorney filings, with the sole exception of changes to Federal
Employees Health Benefits Program coverage. 3 PFR File, Tab 8 at 5-7, 13, 20,
30-31. Therefore, the OPM representative accurately informed the appellant that
OPM would not allow him to change Mrs. Harris’s survivor annuity election
pursuant to a power of attorney. HCD at 6:34-6:49 (testimony of the appellant).
¶18 However, although the OPM representative accurately conveyed OPM’s
policy, the policy was not arrived at after a formal adjudication or
notice-and-comment rulemaking, and therefore, is not entitled to deference under
Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837,
843-44 (1984). See Christensen v. Harris County, 529 U.S. 576, 587 (2000)
(finding that interpretations of statutes contained in “opinion letters—like
3
The appellant argues that these provisions are not applicable to him because he did not
apply to be a representative payee. PFR File, Tab 10 at 1-2. However, although several
of the documents submitted by OPM refer to representative payees, the documents
reflect that OPM generally does not recognize power of attorney filings. PFR File,
Tab 8 at 30.
8
interpretations contained in policy statements, agency manuals, and enforcement
guidelines, all of which lack the force of law—do not warrant Chevron-style
deference”). Nevertheless, the policy potentially would be entitled to a lesser
degree of deference depending on “the thoroughness evident in its consideration,
the validity of its reasoning, its consistency with earlier and later
pronouncements, and all those factors which give it power to persuade.”
Skidmore v. Swift & Company, 323 U.S. 134, 140 (1944); see Brown v. Office of
Personnel Management, 65 M.S.P.R. 380, 384-85 (1994) (declining to afford
deference to an alleged OPM policy where OPM failed to provide “meaningful
guidance or substantial evidence of a consistent policy” on this issue) (citing
Parker v. Office of Personnel Management, 974 F.2d 164, 168 (Fed. Cir. 1992)
(declining to defer to an OPM policy that was not “properly or
publicly announced”)).
¶19 We need not decide the issue of whether to defer to OPM’s policy, however,
because, even assuming that the policy is invalid, we agree with the
administrative judge that we cannot waive the filing deadline based on the
doctrine of equitable estoppel. See ID at 6. Our reviewing court, the U.S. Court
of Appeals for the Federal Circuit (Federal Circuit), has held that, to establish a
claim of equitable estoppel against a Government agency, an appellant must
demonstrate affirmative misconduct on the part of Government officials. 4
Zacharin v. United States, 213 F.3d 1366, 1371 (Fed. Cir. 2000). The Board also
has repeatedly held that an agency’s negligent provision of misinformation
4
On review, the appellant argues that he should not be required to demonstrate that the
agency engaged in affirmative misconduct. PFR File, Tab 1 at 1-3. However, it is well
settled that decisions of the Federal Circuit constitute precedent that is binding on the
Board, Spain v. Department of Homeland Security, 99 M.S.P.R. 529, ¶ 9 (2005), aff’d,
177 F. App’x 88 (Fed. Cir. 2006), and thus, the appellant is required to demonstrate
affirmative misconduct on the part of Government officials.
9
does not constitute affirmative misconduct. 5 Perez Peraza, 114 M.S.P.R. 457,
¶ 10; Scriffiny v. Office of Personnel Management, 108 M.S.P.R. 378, ¶¶ 12-13
(2008), overruled on other grounds by Nunes, 111 M.S.P.R. 221, ¶ 15. The
appellant failed either to allege or establish that the OPM representative who
informed him of OPM’s policy intentionally provided him with inaccurate
information, or otherwise engaged in affirmative misconduct. IAF, Tab 1 at 5,
Tab 11; PFR File, Tabs 1, 10. Therefore, we conclude that the filing deadline in
this case cannot be waived based upon the doctrine of equitable estoppel. See
Perez Peraza, 114 M.S.P.R. 457, ¶ 10 (determining that an administrative judge
erred in applying equitable estoppel where the evidence did not demonstrate that
the relevant Government officials knew that they were providing the appellant
with inaccurate information). We have considered the appellant’s arguments on
review that the application of these standards is unfair, but the equities of the
situation do not alter our obligation to apply the relevant legal standards. PFR
File, Tab 1 at 1-3.
¶20 On review, the appellant also asserts that the filing deadline should be
waived because the OPM representative allegedly failed to advise him that he
could change Mrs. Harris’s annuity election if he obtained a guardianship. PFR
File, Tab 1 at 2. We construe the appellant’s assertion as an argument that
basis (3), an agency’s failure to provide a notice of rights and the applicable
5
Prior to conducting the telephonic hearing, the administrative judge informed the
appellant of the requirement to establish that the agency engaged in affirmative
misconduct. IAF, Tab 12 at 3. He neglected to inform him, though, that the agency
only engaged in affirmative misconduct if it knew that the information provided was
incorrect. Id. However, this oversight was cured by the initial decision, which
provided this information. ID at 6; see Mapstone v. Department of the Interior,
106 M.S.P.R. 691, ¶ 9 (2007) (finding that an administrative judge’s failure to provide
an appellant with proper jurisdictional notice can be cured if the initial decision
contains the notice that was lacking, thus affording the appellant an opportunity to meet
his burden on petition for review); cf. Perez Peraza, 114 M.S.P.R. 457, ¶¶ 12-13
(remanding an appeal to inform the parties of the legal standard for establishing
equitable estoppel where the initial decision did not provide this information).
10
filing deadline where such notice is required by statute or regulation, warrants
waiver of the filing deadline. However, in response to the show cause order,
OPM submitted evidence, in the form of OPM’s representative payee approval
notice and OPM’s internal guidance, indicating that OPM does not allow
court-appointed guardians or other representative payees to make decisions
regarding survivor annuities on behalf of annuitants. PFR File, Tab 8 at 6, 17,
19. Therefore, the appellant’s assertion that OPM would have permitted him to
change Mrs. Harris’s survivor annuity election if he had obtained a guardianship
is incorrect. PFR File, Tab 1 at 2. In any event, no statute or regulation requires
OPM to provide notice regarding the ability to change a survivor annuity election
by means of a guardianship, and accordingly, OPM’s failure to provide such
notice would not form a basis for waiving the filing deadline. See Speker v.
Office of Personnel Management, 45 M.S.P.R. 380, 385-86 (1990) (finding that
OPM’s failure to notify an appellant of her right to elect an alternative annuity
did not form a basis for waiving a filing deadline where the applicable statute and
regulations in effect at the time did not require OPM to provide such notice),
aff’d, 928 F.2d 410 (Fed. Cir. 1991) (Table), modified on other grounds by Fox v.
Office of Personnel Management, 50 M.S.P.R. 602, 606 n.4 (1991).
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
You have the right to request review of this final decision by the U.S. 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,
11
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 U.S. 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 U.S. 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 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 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.