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 NONPRECEDENTIAL1

Edel P. Ruiseco, Esquire, Corpus Christi, 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 review of the initial decision, which 

affirmed the reconsideration decision of the Office of Personnel Management 

(OPM) denying her application for insurable interest survivor annuity benefits 

based on the service of her late fiancé. Generally, we grant 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 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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 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’s late fiancé, A.C., was 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 sustained accidental injuries that 

rendered him quadriplegic. IAF, Tab 5 at 10, Tab 8 at 4. He and the appellant 

were to have been married on July 5, 2013. IAF, Tab 5 at 10. On July 18, 2013, 

A.C. designated his brother, G.C., as his power of attorney. Id. at 73-107. G.C. 

submitted an application for immediate retirement on his brother’s behalf on 

September 9, 2013. Id. at 48-50. The application included electing a reduced 

annuity with a survivor annuity for the appellant, who was identified as A.C.’s 

domestic partner and as having an insurable interest. Id. at 49. Section F(4) of 

the application, where the applicant may select an insurable 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 regarding A.C. from Dr. R. in 

December 2013, based on a consultation that 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, including recurrent pneumonia, respiratory 

failure, quadriplegia, bowel and bladder dysfunction, multiple decubitus wounds, 

hypertension, obstructive sleep apnea, post respiratory failure, and a nonhealing 

decubitus sacral ulcer, as well as a trachestomy. 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 mentally competent to make decisions. Id.

¶4 On February 14, 2014, OPM sent A.C. an Annuity Election Confirmation 

form with information regarding the cost 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 for the appellant. Id. at 29. A.C. signed the 

Annuity Election Confirmation form on March 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 attesting to his personal and financial relationship with the 

appellant. Id. at 23-24. 

¶5 A.C., however, did not select any option on the form regarding submission 

of medical evidence demonstrating good health. Id. Although OPM’s record 

includes only the statement prepared by Dr. R., the appellant asserted that she and 

G.C. submitted additional medical documentation to OPM. IAF, Tab 8 at 5. A 

medical report, dated April 17, 2014, and signed by Dr. K., states that A.C. was 

“competent to make decisions for himself, but . . . total[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 informed A.C. that he was ineligible to 

elect an insurable interest for the appellant owing to his medical condition. IAF, 

Tab 5 at 25.
4

¶6 On December 31, 2014, A.C. died of “medical complications due to 

quadriplegia due to blunt 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 survivor 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 reconsideration of the agency’s initial 

decision. Id. at 10. On June 23, 2015, the agency affirmed its initial decision, 

finding that she was ineligible to receive an insurable interest survivor annuity. 

Id. at 5-6. 

¶7 The appellant timely appealed OPM’s reconsideration decision. IAF, Tab 1. 

After a hearing, the administrative judge affirmed the reconsideration decision, 

finding that the appellant had 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 administrative judge abused her 

discretion and made erroneous findings of material fact. Petition for Review 

(PFR) File, Tab 1. We disagree. The good health requirement for electing an 

insurable interest survivor 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 insurable interest in the employee . . . to receive an 

annuity . . . after the death of the retired employee.” 5 U.S.C. § 8339(k)(1). 

Detailed regulations governing the application 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 annuity, 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 examination that shows that he or 
5

she is in good health. A report of the medical examination, signed 

and dated by a licensed physician, must be furnished to OPM on such 

forms and at such time and place 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 interpretative 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 deferment of the payments. 

See 5 C.F.R. § 831.2207.

2

 There exists an exemption for retirees suffering from a 

“life-threatening affliction or other critical medical condition.” 5 C.F.R. 

§ 831.2207(c)(2). The regulation defines a “life-threatening affliction or other 

critical medical condition” as a “medical condition so severe as to reasonably 

limit an individual’s probable life expectancy to less than two years.” 5 C.F.R. 

§ 831.2207(c)(3)(i). The regulation further states that “quadriplegia with life 

threatening complications” is a medical condition considered to be “prima facie 

evidence of a life-threatening affliction or other critical medical condition.” 

5 C.F.R. § 831.2207(c)(3)(ii)(U). 

¶9 Even assuming that G.C. and the appellant supplied medical documentation 

other than Dr. R.’s report to OPM, A.C. clearly suffered from several serious 

medical conditions in September 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 consistent with the plain 

language of the statute. 

¶10 Further, OPM’s interpretation of the term “good health” is entitled to 

deference. OPM is charged by Congress with interpreting civil service retirement 

law. Hicks v. Office of Personnel Management, 44 M.S.P.R. 340, 344 (1990). 

The construction given a statute by an agency charged with its interpretation is 

entitled to deference unless the interpretation is clearly erroneous, which the 

appellant did not show. Id. Moreover, the plain language of a statute controls 

absent clearly expressed 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, despite submitting his Annuity Election 

Confirmation form and notarized 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 select 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 Confirmation form for A.C.’s election. Having 

tacitly approved the election, she argues, OPM cannot now reverse itself. 

PFR File, Tab 1 at 5. Although it is true that OPM’s denial followed A.C.’s 

submitting the confirmation form, the delay in processing the appellant’s election 
7

does not negate the statutory requirements governing election 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 notified A.C. more than 

3 months before his death that he was ineligible to elect an insured interest 

survivor annuity. IAF, Tab 5 at 22, 25. Even if he or his representative had 

submitted medical documentation, OPM’s conclusion 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 mental competence. She explains that OPM requested 

information regarding his mental competence after receiving Dr. R.’s report, 

“confirm[ing] OPM staff’s belief that [his] health did not refer to his physical 

condition.” PFR File, Tab 1 at 7. She argues that she was informed by 

employees at the Corpus Christi Army Depot who assisted her and by OPM 

employees that mental competence was the key consideration for eligibility, and 

indeed OPM had raised questions about A.C.’s competence, 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 representative 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 requirement 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 illness 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 relationship with A.C. as that of a domestic partner and did 

not acknowledge they were engaged to be married. PFR File, Tab 1 at 7, 10-11. 

The administrative judge, however, specifically stated that the appellant and A.C. 

were engaged. ID at 2. A.C. characterized the appellant as a domestic 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 based its decision solely on the 

finding that A.C. was not in good health when he retired. Id. at 6. 

¶15 Finally, the appellant argues OPM should be equitably 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 survivor annuity. The Board lacks authority to grant 

retirement benefits contrary to the statutory and regulatory provisions even if an 

OPM employee has provided a claimant with erroneous advice in the matter. 

See Office of Personnel Management v. Richmond, 496 U.S. 414, 416, 434 

(1990). The administrative judge’s initial decision is thus 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 final 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 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 

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. States 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: 

Washington, D.C. 

______________________________ 

Jennifer Everling 

Acting Clerk of the Board