UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD

GAYE C. HARRIS, Appellant,

v.
OFFICE OF PERSONNEL MANAGEMENT, Agency. DOCKET NUMBER DA-0831-15-0515-I-1

DATE: September 12, 2016



### THIS FINAL ORDER IS NONPRECEDENTIAL 1

Edel P. Ruiseco, Esquire, Corpus Ch risti, Texas, for the appellant. Sarah Murray, 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 re view of the initial decision, which affirmed the reconsidera tion decision of the Office of Personnel Management (OPM) denying her application for insurabl e interest survivor annuity benefits based on the service of her la te fiancé. Generally, we gr ant petitions such as this

1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions.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

one only when: the initial decision contai ns erroneous findings of materi al fact; the initial decision is based on an erroneous interpretati on 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 require d 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, desp ite 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 ha s not established any basis under section 1201.115 for granting the petition for revi ew. Therefore, we DENY the petition for review and AFFIRM the initial deci sion, which is now the Board’s final decision. 5 C.F.R. § 1201.113 (b). ¶2 The appellant’s late fiancé, A.C., wa s employed by the Corpus Christi Army Depot under the Civil Service Retirement System. Initial Appeal File (IAF), Tab 1 at 5, Tab 5 at 49. In late June 2013, he sustaine d accidental injuries that rendered him quadriplegi c. IAF, Tab 5 at 10, Tab 8 at 4. He a nd the appellant were to have been married on July 5, 2013. IAF, Tab 5 at 10. On July 18, 2013, A.C. designated his br other, G.C., as his power of attorney. Id. at 73-107. G.C. submitted an application for immediate retirement on his br other’s behalf on September 9, 2013. Id. at 48-50. The application included electing a reduced annuity with a survivor a nnuity for the appellant, w ho was identified as A.C.’s domestic partner and as havi ng an insurable interest. Id. at 49. Section F(4) of the application, where the applicant may select an in surable interest survivor annuity, states, with respect to such an annuity: “You must be healthy and willing to provide medical evidence if you choose this type of annuity.” Id. G.C. signed the application form, and the form indicates that A.C. was unavailable for signature. Id. at 50, 52.3

¶3 OPM received a medical report re garding A.C. from Dr. R. in December 2013, based on a consultation th at took place on December 6, 2013. IAF, Tab 5 at 26-27, Tab 8 at 7. Dr. R. cataloged a lengthy list of physical conditions from which A.C. suffered, in cluding recurrent pneumonia, respiratory failure, quadriplegia, bowel and bladder dysfunction, multiple decubitus wounds, hypertension, obstructive sl eep apnea, post respirator y failure, and a nonhealing decubitus sacral ulcer, as well as a tr achestomy. IAF, Tab 5 at 26-27. Although Dr. R. found that A.C. suffered from a mood disorder associated with his injuries, he determined that he was menta lly competent to make decisions. Id. ¶4 On February 14, 2014, OP M sent A.C. an Annuity Election Confirmation form with information regarding the co st of providing an insurable interest annuity. Id . at 28-29. In that correspondence, OPM informed him that he “must also submit a medical report demonstrating that [he is ] in good health” if he elected an insurable interest benefit fo r the appellant. Id. at 29. A.C. signed the Annuity Election Confirmation form on Ma rch 7, 2014, naming the appellant as the recipient of an insurable interest survivor annuity. Id. at 24. He signed the form in the presence of a witness by making a mark. Id. He also submitted a notarized statement at testing to his personal and fi nancial relations hip with the appellant. Id. at 23-24. ¶5 A.C., however, did not select any opti on on the form regarding submission of medical evidence demons trating good health. Id. Although OPM’s record includes only the statement prepared by Dr. R., the appellant asse rted that she and G.C. submitted additional me dical documentation to OPM. IAF, Tab 8 at 5. A medical report, dated April 17, 2014, and si gned by Dr. K., states that A.C. was “competent to make d ecisions for himself, but . . . to tal[ly] dependent with all his activities of daily living due to a C-spine injury that left him paralyzed.” IAF, Tab 13 at 4. On October 14, 2014, OPM in formed A.C. that he was ineligible to elect an insurable interest for the appellant owing to hi s medical condition. IAF, Tab 5 at 25.4

¶6 On December 31, 2014, A.C. died of “medical complications due to quadriplegia due to bl unt force trauma.” Id. at 22. The appellant filed an Application for Death Benefits as his domestic partner. Id. at 18-21. The agency denied her claim for a surv ivor annuity, explaining that she was ineligible to receive such an annuity because A.C. had not been in good health when he retired. Id. at 7. The appellant requested rec onsideration of the agency’s initial decision. Id. at 10. On June 23, 2015, the agen cy affirmed its initial decision, finding that she was in eligible to receive an insurable interest survivor annuity. Id. at 5-6. ¶7 The appellant timely appeal ed OPM’s reconsideration decision. IAF, Tab 1. After a hearing, the admini strative judge affirmed th e reconsideration decision, finding that the appellant ha d not shown she was entitled to a survivor annuity based on A.C.’s electing an insurable interest because he had not been in good health when he retired in September 2013. IAF, Tab 28, Initial Decision (ID) at 7-9. ¶8 On review, the appellant argues that the administ rative judge abused her discretion and made erroneou s findings of material fa ct. Petition for Review (PFR) File, Tab 1. We disagree. Th e good health requireme nt for electing an insurable interest su rvivor annuity is a statutory one. The statute specifically states that an employee “who is found to be in good health” by OPM “[a]t the time of retiring . . . may elect a reduced annuity . . . and name in writing an individual having an insura ble interest in the empl oyee . . . to receive an annuity . . . after the death of the retired employee.” 5 U.S.C. § 8339 (k)(1). Detailed regulations governing the applicat ion for an insurable interest annuity, including those governing the proof of good health, are set forth at 5 C.F.R. § 831.613 : To elect an insurable interest annu ity, an employee . . . must indicate the intention to make the election on the application for retirement; submit evidence to demonstrate that he or she is in good health; and arrange and pay for the medical exam ination that shows that he or5

she is in good health. A report of the medical examination, signed and dated by a licensed phys ician, must be furn ished to OPM on such forms and at such time and pl ace as OPM may prescribe. 5 C.F.R. § 831.613 (d). The retirement application also includes information about the requirement to supply medical documentation when electing such an annuity. IAF, Tab 5 at 39. Although the applicable statute and regulations do not define the term “good health ,” we may find interpretati ve guidance by consulting other retirement regulations that address health conditions. For example, the regulation governing the payment of lump -sum credits to retirees includes provisions for exempting such persons from partial defe rment of the payments. See 5 C.F.R. § 831.2207

. 2 There exists an exemption for retirees suffering from a “life-threatening affliction or ot her critical medi cal condition.” 5 C.F.R. § 831.2207 (c)(2). The regulation defines a “l ife-threatening affliction or other critical medical condition” as a “medical condition so severe as to reasonably limit an individual’s probable life expe ctancy to less th an two years.” 5 C.F.R. § 831.2207 (c)(3)(i). The regulation further stat es that “quadriplegia with life threatening complications” is a medical condition consider ed to be “prima facie evidence of a life-threateni ng affliction or other crit ical medical condition.” 5 C.F.R. § 831.2207 (c)(3)(ii)(U). ¶9 Even assuming that G.C. and the appe llant supplied medical documentation other than Dr. R.’s report to OPM, A.C. clearly suffered from several serious medical conditions in Sept ember 2013 when he retired and initially elected an insurable interest survivor annuity for the appellant. His conditions included quadriplegia and related complications. IAF, Tab 5 at 26-27, Tab 13 at 4. It is undisputed that he was unable to complete his own retirement application and that

2 The appellant argues on review that the administrative judge relied on an “inapplicable statute” by citing 5 C.F.R. § 831.2207 . PFR File, Tab 1 at 7. Courts and administrative bodies, however , have long found interpretative guidance by consulting statutes and regulations similar or related to the statutes or regulations at issue in the cases they consider.6

G.C. was acting as his power of attorney, owing to the seriousness of these conditions when he retired. IAF, Tab 5 at 50, 73-107. These conditions tragically caused his death 15 months after he retired. Id. at 22. OPM’s conclusion that A.C. could not have been considered in good health within the meaning of the statute when he retired is reasonable and consis tent with the plain language of the statute. ¶10 Further, OPM’s interpreta tion of the term “good h ealth” is entitled to deference. OPM is charged by Congress w ith interpreting civil service retirement law. Hicks v. Office of Personnel Management , 44 M.S.P.R. 340 , 344 (1990). The construction given a stat ute by an agency charged w ith its interpretation is entitled to deference unles s the interpretation is cl early erroneous, which the appellant did not show. Id. Moreover, the pl ain language of a statute controls absent clearly expres sed legislative intent to the contrary. Benedetto v. Office of Personnel Management , 32 M.S.P.R. 530 , 533 (1987), aff’d, sub. nom. Horner v. Benedetto 847 F.2d 814 (Fed. Cir. 1988). ¶11 The appellant argues on review that OPM changed A.C.’s election without the authority to do so and that the administrative judge misinterpreted the regulation, allowing that action to stand. PFR File, Tab 1 at 5-7. In reality, A.C.’s election was ineffective, de spite submitting hi s Annuity Election Confirmation form and notar ized statement, IAF, Tab 5 at 23-24, because he failed to provide documentation of his good health at the time of his retirement. The medical documentation he provided showed that he was not in good health and thus was ineligible to se lect an insurable interest annuity for the appellant. 5 U.S.C. § 8339 (k)(1); 5 C.F.R. § 831.613 (d); IAF, Tab 5 at 26 -27, Tab 13 at 4. ¶12 The appellant argues that OPM was in possession of Dr. R.’s report when it issued the Annuity Election Confirmati on form for A.C.’s election. Having tacitly approved the electi on, she argues, OPM cannot now reverse itself. PFR File, Tab 1 at 5. Although it is tr ue that OPM’s denial followed A.C.’s submitting the confirmation form, the dela y in processing the appellant’s election7

does not negate the statut ory requirements governing el ection of an insurable interest. The appellant’s assertion that A.C. would have submitted additional medical documentation, had OPM timely informed him that his election was denied, is equally unavailing. Id . at 10-11. OPM notif ied A.C. more than 3 months before his death th at he was ineligible to elect an insured interest survivor annuity. IAF, Tab 5 at 22, 25. Even if he or hi s representative had submitted medical documentation, OPM’s conclusi on regarding his health condition when he retired would not have changed. ¶13 The appellant on review also argues that the requirement for good health referred to A.C.’s ment al competence. She expl ains that OPM requested information regarding his me ntal competence after re ceiving Dr. R.’s report, “confirm[ing] OPM staff’s be lief that [his] he alth did not refer to his physical condition.” PFR File, Tab 1 at 7. Sh e argues that she was informed by employees at the Corpus Christi Army Depot who assisted her and by OPM employees that mental comp etence was the key consider ation for eligibility, and indeed OPM had raised ques tions about A.C.’s compet ence, which she and G.C. had answered. Id. at 8-9, 11-12; IAF, Tab 5 at 5, Tab 7 at 9-11, 14-15, Tab 13 at 4. She further notes that OPM requires annuitants to name re presentative payees when competence is at issue. PFR File , Tab 1 at 8. Here , it appears that the appellant is conflating OPM’ s questions about A.C.’s ability to handle his own affairs with the statutory re quirement that an annuitant be in good health at the time of retirement to elect an insurable interest annuity. 3 See 5 U.S.C. § 8339 (k)(1). Although A.C. appears to have been mentally competent until his death, IAF, Tab 13 at 5, he was nevertheless in poor physical condition when he retired, suffering from a disabling illn ess with several life-threatening complications, IAF, Tab 5 at 26-27.

3 Because OPM also addressed A.C.’s failure to name a representative payee in the reconsideration decision, IAF, Tab 5 at 5, the appellant’s misinterpretation is understandable.8

¶14 The appellant argues that the administrative judge and OPM mischaracterized her relations hip with A.C. as that of a domestic partner and did not acknowledge they were e ngaged to be married. PFR File, Tab 1 at 7, 10-11. The administrative judge, however, specifica lly stated that the appellant and A.C. were engaged. ID at 2. A.C. characterized the appell ant as a domesti c partner on his election form, IAF, Tab 5 at 49, as did the appellant on her Application for Death Benefits, id. at 18. In any event, OPM ba sed its decision solely on the finding that A.C. was not in go od health when he retired. Id. at 6. ¶15 Finally, the appellant argues OPM should be equita bly estopped from denying her an insurable interest annuity. PFR File, Tab 1 at 11-12. There is, however, no provision in law or equity that would allow the appellant to receive an insurable interest surv ivor annuity. The Board lacks authority to grant retirement benefits contrary to the statutory and regulat ory provisions even if an OPM employee has provided a claimant w ith erroneous advice in the matter. See Office of Personnel Management v. Richmond , 496 U.S. 414 , 416, 434 (1990). The administrative ju dge’s initial decision is t hus correct, and we affirm it. 4

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

4 As the administrative judge correctly noted, OPM’s fina l decision in this case was based solely on the insurable interest survivor annuity benefit. ID at 8 n. 2. Therefore, the appellant may apply for death benefits as A.C.’s common law spouse, and, if she is dissatisfied with OPM’s final determination on her application, she can appeal that determination to the Board.9

The court must receive your request for review no la ter 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 carefu l to file on time. The court has held that normally it does not have the author ity to waive this st atutory 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 th is 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 ot her sections of the U.S. States Code, at our website, http://www.mspb. gov/appeals/uscode.htm. Additional information is available at the court’ s website, www.cafc.us courts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners a nd Appellants,” which is contained within th e court’s Rules of Practice, and Forms 5, 6, and 11. If you are interested in securing pro bo no 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 informa tion regarding pro bono representation for Merit Systems Protection Board appellants before th e Federal Circuit. The Merit Systems Protection Board neither endorses the servic es provided by any attorney nor warrants that a ny attorney will accept repres entation in a given case.

FOR THE BOARD:

Washington, D.C. ________________ ______________ Jennifer Everling Acting Clerk of the Board