UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
TINA DEED R. GUY, DOCKET NUMBER
Appellant, SF-0831-15-0650-I-1
v.
OFFICE OF PERSONNEL DATE: June 24, 2016
MANAGEMENT,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL *
Tina Deed R. Guy, Sacramento, California, 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 decision of the Office of Personnel Management (OPM) to deny her
request for lump-sum death benefits based on the Federal service of her deceased
spouse. Generally, we grant petitions such as this one only when: the initial
*
A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
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. 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, 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 seeks lump-sum death benefits based on the Federal service
of her deceased spouse. After she received an unfavorable decision from OPM,
she filed this appeal, and the administrative judge affirmed OPM’s decision. The
appellant now petitions for review of the administrative judge’s initial decision.
¶3 By statute, lump-sum death benefits payable under Civil Service Retirement
System are to be paid first to the beneficiary designated by the employee in a
signed and witnessed writing received by OPM before the employee’s
death. 5 U.S.C. § 8342(c); Hatch v. Office of Personnel Management, 101
M.S.P.R. 300, ¶ 9 (2006). The appellant was married to the decedent at the time
of his death, but the decedent had designated his daughter as the beneficiary of
any lump-sum death benefits. Initial Appeal File (IAF), Tab 9 at 9. There is no
evidence that the decedent revoked that designation or that the designation was
somehow invalid. See Hatch, 101 M.S.P.R. 300, ¶ 9. Therefore, OPM must pay
the lump-sum death benefits to the daughter and not to the appellant. See
McDaniel v. Office of Personnel Management, 123 M.S.P.R. 55, ¶ 7 (2015)
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(finding that, under 5 U.S.C. § 8342(c), designated beneficiaries come first in the
order of precedence for receipt of a lump sum).
¶4 The appellant claims that the administrative judge caused her to expend
funds pursuing her appeal and led her to believe that she was entitled to the
lump-sum death benefits she sought. Petition for Review File, Tab 1. The
appellant has proffered no legal basis to reimburse her for the cost of pursuing her
appeal, and we are aware of none. Moreover, even if the administrative judge or
OPM informed the appellant that she would be paid the lump-sum death benefits
at issue in this appeal, the Government cannot be estopped from denying benefits
not otherwise permitted by law even if the claimant was denied monetary benefits
because of his or her reliance on the mistaken advice of a Government official.
Office of Personnel Management v. Richmond, 496 U.S. 414, 416, 434 (1990).
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:
U.S. 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
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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.