UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

LAURA L. ZIENCIK,

Appellant,

v.

OFFICE OF PERSONNEL 

MANAGEMENT,

Agency.

DOCKET NUMBER

PH-0831-17-0327-I-1

DATE: March 2, 2023

THIS FINAL ORDER IS NONPRECEDENTIAL1

Laura L. Ziencik, Berlin, Maryland, pro se.

Carla Robinson, Washington, D.C., for the agency.

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, Member

Tristan L. Leavitt, Member2

FINAL ORDER

¶1 The appellant has filed a petition for review of the initial decision, which 

found that she was not entitled to survivor benefits under the Civil Service 

 

1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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 Member Leavitt’s name is included in decisions on which the three-member Board 

completed the voting process prior to his March 1, 2023 departure.
2

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 and AFFIRM the initial decision, 

which is now the Board’s final decision. 5 C.F.R. § 1201.113(b). 

¶2 We agree with the administrative judge’s conclusion in the initial decision 

that the appellant failed to meet her burden of proving by preponderant evidence 

that she was entitled to survivor benefits under the CSRS.

3 Cheeseman v. Office 

of Personnel Management, 791 F.2d 138, 140-41 (Fed. Cir. 1986) (finding that

the burden of proving entitlement to a survivor annuity is on the applicant for 

benefits); Initial Appeal File (IAF), Tab 6, Initial Decision (ID). Specifically, the 

appellant did not demonstrate that her now-deceased husband’s income was below 

the earning limitation amount when the Office of Personnel Management (OPM)

terminated his disability retirement annuity for regaining earning capacity, nor 

did she prove that this annuity was reinstated prior to his death. ID at 4-5; see 

White v. Office of Personnel Management, 72 M.S.P.R. 672, 674-75 (1996) 

(finding that a widow of a disability annuitant was not entitled to a survivor 

 

3

Preponderant evidence is defined as the degree of relevant evidence that a reasonable 

person, considering the record as a whole, would accept as sufficient to find that a 

contested fact is more likely to be true than untrue. 5 C.F.R. § 1201.4(q).
3

annuity, as the annuitant regained earning capacity but died before having his 

disability annuity reinstated). Relatedly, the appellant’s husband did not file for a 

deferred retirement annuity when he became eligible at age 62, nor was he 

receiving any other benefit under the CSRS at the time of his death. ID at 2-3; 

IAF, Tab 4 at 4-5; see Dickerson v. Office of Personnel Management, 47 M.S.P.R. 

109, 111, 113-14 (1991) (holding that the appellant was not entitled to a survivor 

annuity, as her former husband, who retired on a disability annuity and recovered, 

had not filed for his deferred annuity and was not receiving payments under the 

CSRS when he died). Lastly, there were no retirement deductions left in her 

husband’s account, meaning there was no lump sum payment to be made by OPM 

to the appellant, as the survivor, after her husband’s death. IAF, Tab 4 at 7, 9; 

see 5 U.S.C. § 8342(d); Narvasa v. Office of Personnel Management, 47 M.S.P.R. 

152, 154 (1991). 

¶3 The appellant alleges on review that she had power of attorney for her 

husband and could have signed an application for reinstatement of his annuity 

when he was unable. Petition for Review (PFR) File, Tab 1 at 4. The appellant 

did not raise this argument during the adjudication of her appeal before the 

administrative judge. The Board generally 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). There has 

been no showing of these circumstances here; thus, we need not consider the 

appellant’s argument. Notwithstanding, as the initial decision concludes, the 

appellant failed to meet her burden of proving that her husband was ever eligible 

for and applied for reinstatement of his disability annuity after its termination in 

2006. ID at 4-5. The appellant now claiming that she possessed power of 

attorney for him does not alter this outcome. Moreover, the appellant cannot now 

make an election for survivor benefits on behalf of her late husband. See Diehl v. 

Office of Personnel Management, 50 M.S.P.R. 519, 522 (1991) (holding that no 
4

election for a survivor annuity can be made after the death of the Federal 

employee). 

¶4 On review, the appellant also claims that her husband had his annuity

reinstated before he died and took less of an amount to provide for her. PFR File, 

Tab 1 at 4. This is the same argument that the appellant set forth during her 

initial appeal and which the administrative judge found that she failed to prove. 

ID at 5; IAF, Tab 1 at 5. The appellant has not provided any evidence to support 

her argument, and there is no basis to overturn the initial decision. 

¶5 The appellant also states on review that as the Federal employee’s wife for 

36 years, she is entitled to his annuity. PFR File, Tab 1 at 4. However, the 

appellant’s deceased husband was not receiving an annuity at the time of his 

death. IAF, Tab 4 at 4-5. It is well settled that the requirements for eligibility for

a retirement benefit are substantive legal requirements, meaning there is no room 

for administrative discretion from OPM or the Board. Oliveros v. Office of 

Personnel Management, 49 M.S.P.R. 360, 363 (1991), appeal dismissed, 965 F.2d 

1064 (Fed. Cir. 1992) (Table); see Office of Personnel Management v. Richmond, 

496 U.S. 414, 416, 434 (1990) (holding that a Government employee’s erroneous 

advice to a claimant for benefits did not entitle that claimant to benefits he 

otherwise would not have received, despite the claimant’s detrimental reliance on 

that mistaken advice). While we are sympathetic to the appellant’s situation, she 

has not proven that she was entitled to a CSRS benefit pursuant to any law or 

regulation.

NOTICE OF APPEAL RIGHTS4

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 

 

4

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 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 

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. 
6

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. ____ , 137 S. Ct. 1975 (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 
7

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) 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.5The court of appeals must receive your petition for 

 

5

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 
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. 

 

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:

Washington, D.C.

/s/ for

Jennifer Everling

Acting Clerk of the Board