UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

ROSETTA C. DAVIS,

Appellant,

v.

OFFICE OF PERSONNEL 

MANAGEMENT,

Agency.

DOCKET NUMBER

SF-0831-21-0306-I-1

DATE: October 3, 2024

THIS FINAL ORDER IS NONPRECEDENTIAL1

Rosetta C. Davis, Los Angeles, California, pro se.

Alison Pastor, Washington, D.C., for the agency.

BEFORE

Cathy A. Harris, Chairman

Raymond A. Limon, Vice Chairman

Henry J. Kerner, Member

FINAL ORDER

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

affirmed the reconsideration decision issued by the Office of Personnel

Management (OPM) finding that she was not entitled to survivor annuity benefits

under the Civil Service Retirement System (CSRS). On petition for review, the

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 A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).
appellant argues the following: (1) OPM failed to provide her late husband, a

Federal retiree, with sufficient information regarding CSRS survivor annuity

benefits; (2) the administrative judge failed to properly assess equitable

considerations; and (3) she is entitled to survivor annuity benefits regardless of

whether her late husband properly elected the same because OPM reduced his

monthly annuity benefits during his lifetime. Petition for Review (PFR) File,

Tab 1 at 3, 7. 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). 

We discern no basis to disturb the administrative judge’s well-reasoned

conclusions that: (1) OPM provided the appellant’s late husband with all

statutorily required information regarding the election of CSRS survivor annuity

benefits; and (2) equitable considerations do not provide a basis to disturb OPM’s

reconsideration decision. Initial Appeal File (IAF), Tab 14, Initial Decision

at 8-16; see Crosby v. U.S. Postal Service, 74 M.S.P.R. 98, 105-06 (1997)

(finding no reason to disturb the administrative judge’s findings when she

considered the evidence as a whole, drew appropriate inferences, and made

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reasoned conclusions); Broughton v. Department of Health & Human Services,

33 M.S.P.R. 357, 359 (1987) (same).

The appellant argues for the first time on review that she is entitled to

survivor annuity benefits because OPM reduced her late husband’s annuity

benefits. PFR File, Tab 1 at 7. To this end, she seemingly asserts that OPM

deducted “$450.00 a month” from his lifetime monthly annuity benefits to

provide her with survivor annuity benefits. Id. The appellant, however, did not

discernably raise this claim before the administrative judge. See Banks v.

Department of the Air Force, 4 M.S.P.R. 268, 271 (1980) (finding that 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); 5 C.F.R. § 1201.115(d).

Moreover, the appellant’s assertion is unsupported by the record. 2 Thus, a

different outcome is not warranted.

With her petition for review, the appellant provides, for the first time, two

additional documents, i.e., a letter sent to the appellant’s late husband by OPM in

October 1996 “regarding [d]irect [d]eposit,” PFR File, Tab 1 at 5, 7, and an

undated letter from a purported witness, id. at 6. The Board generally will not

consider evidence submitted for the first time with the petition for review absent

a showing that it was unavailable before the record was closed despite the party’s

due diligence. See Avansino v. U.S. Postal Service, 3 M.S.P.R. 211, 214 (1980);

5 C.F.R. § 1201.115(d). Here, the appellant provides no explanation for her

failure to timely submit this evidence to the administrative judge. Moreover, the

information provided in these documents is not material to the outcome of this

appeal; indeed, the relevance of the October 1996 letter is unclear, and although

the purported witness indicates that he saw the appellant and her late husband

complete “forms,” he does not discernably identify the forms that he saw them

2

 Indeed, the record reflects that OPM deducted $450.06 from the appellant’s late

husband’s CSRS annuity payments for health benefits, not for survivor annuity benefits.

IAF, Tab 7 at 44.

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complete. PFR File, Tab 1 at 5-6; see Russo v. Veterans Administration,

3 M.S.P.R. 345, 349 (1980) (stating that the Board will not grant a petition for

review based on new evidence absent a showing that it is of sufficient weight to

warrant an outcome different from that of the initial decision).

Accordingly, we affirm the initial decision. 

NOTICE OF APPEAL RIGHTS3

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

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). 

3

 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.

4
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. 

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

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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

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

6
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.4 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

4

 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. 

7
Board neither endorses the services provided by any attorney nor warrants that

any attorney will accept representation in a given case. 

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.

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