UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ANN M. VAYDA, DOCKET NUMBER
Appellant, PH-0831-18-0246-I-1
v.
OFFICE OF PERSONNEL DATE: February 21, 2024
MANAGEMENT,
Agency,
and
ROSEMARY E. HUDAK,
Intervenor.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Ann M. Vayda , Philadelphia, Pennsylvania, pro se.
Carla Robinson , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
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
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
(OPM) denying her claim for survivor benefits under the Civil Service Retirement
System (CSRS). 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. Except as expressly MODIFIED to
supplement the administrative judge’s analysis and to find that the appellant
cannot prove an entitlement to a lump-sum benefit as the decedent’s “widow”
under 5 U.S.C. § 8342(c), we AFFIRM the initial decision.
On petition for review, the appellant challenges the administrative judge’s
finding that she failed to prove her entitlement to survivor benefits as the
decedent’s widow because she did not prove that she and the decedent entered
into a common law marriage. Petition for Review (PFR) File, Tab 1; Initial
Appeal File (IAF), Tab 24, Initial Decision (ID) at 16. After considering the
appellant’s arguments on review and reviewing the record, we discern no reason
to disturb the thorough and well-reasoned initial decision. Specifically, we agree
with the administrative judge’s finding that the appellant did not meet her heavy
burden of proving that she and the decedent expressed a present intention to enter
into the legal relationship of marriage. ID at 12-16; see Staudenmayer v.
Staudenmayer, 714 A.2d 1016, 1021 (Pa. 1998) (holding that, if a putative spouse
who is able to testify and fails to prove by clear and convincing evidence the
3
establishment of the marriage contract through the exchange of verba in praesenti
(i.e., words in the present tense), then that party has not met its “heavy” burden to
prove a common law marriage because it does not enjoy any presumption based
on evidence of constant cohabitation and reputation of marriage). We further
agree with the administrative judge’s finding that, even if he were to consider
evidence of a reputation of marriage for purposes of a rebuttable presumption of a
common law marriage, such evidence of a broad and general reputation of
marriage between the appellant and the decedent is lacking. ID at 15-16; see,
e.g., Giant Eagle v. Workers’ Compensation Appeal Board , 602 A.2d 387, 389
(Pa. Commw. Ct.) (finding that the evidence suggesting that the claimant and the
decedent’s reputation of marriage was confined to very few people was not
sufficient to give rise to the presumption of marriage), appeal denied, 618 A.2d
403 (Pa. 1992) (Table).
Although we agree with the administrative judge’s conclusion that the
appellant did not prove that she was entitled to survivor benefits as the decedent’s
widow, we modify the initial decision to supplement his analysis, as follows. ID
at 16. The administrative judge correctly addressed the appellant’s potential
entitlement to a survivor annuity as the decedent’s “widow” under 5 U.S.C.
§ 8341(d), but he did not explicitly decide her potential entitlement to a
lump-sum benefit as the decedent’s “widow” under 5 U.S.C. § 8342(c). ID at 3;
IAF, Tab 12 at 1-2; see Clark v. Office of Personnel Management, 40 M.S.P.R.
517, 519-20 (1989) (considering the possibility that the appellant was eligible for
a survivor annuity as a “current spouse” and also was entitled to a lump-sum
benefit under 5 U.S.C. § 8342(c) as the decedent’s widow). If a survivor annuity
is not payable, lump-sum benefits are to be paid according to the order of
precedence set forth at 5 U.S.C. § 8342(c). See 5 U.S.C. § 8342(d); Canelo v.
Office of Personnel Management, 56 M.S.P.R. 217, 219 (1993) (explaining that a
lump-sum benefit is to be paid, based on the service of a deceased Federal
employee, if that service does not entitle anyone to a survivor annuity at the time
4
of the decedent’s death, or if, before a claim for a survivor annuity is filed, the
survivor’s right to the annuity has terminated); Narvasa v. Office of Personnel
Management, 47 M.S.P.R. 152, 154 (1991) (observing that, if no survivor annuity
is payable, and if the deceased employee served in a position covered by the
CSRS, 5 U.S.C. § 8342(d) provides for payment of a lump-sum benefit) .
Section 8342(c) provides that lump-sum benefits shall be paid first to the
designated beneficiary, and second, if there is no designated beneficiary, to the
“widow or widower” of the employee. Here, it is undisputed that the decedent
did not designate a beneficiary for payment of a lump-sum benefit. ID at 3.
Because we agree with the administrative judge’s finding that the appellant failed
to prove that she was the decedent’s “widow” based on a common law marriage
for purposes of a survivor annuity under 5 U.S.C. § 8341(d), ID at 3-4, 16, we
find that she cannot prove an entitlement to a lump-sum benefit as the decedent’s
“widow” under 5 U.S.C. § 8342(c).
The appellant further asserts on review that she was not prepared to present
her case at the hearing because a legal specialist at the Board allegedly told her
that the hearing would proceed in a question-and-answer format. PFR File, Tab 1
at 3. We discern no reason to disturb the initial decision on such a basis when
she has failed to describe how her substantive rights have been harmed. See
Karapinka v. Department of Energy, 6 M.S.P.R. 124, 127 (1981) (finding that an
administrative judge’s procedural error is of no legal consequence unless it is
shown to have adversely affected a party’s substantive rights) .
Accordingly, we affirm OPM’s reconsideration decision.
NOTICE OF APPEAL RIGHTS 2
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain
2
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
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 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
6
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.
(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 .
7
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:
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)(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
8
any court of appeals of competent jurisdiction. 3 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).
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.
3
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.
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.