                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     LINDA K. STEVENS,                               DOCKET NUMBER
                   Appellant,                        CH-0831-15-0222-I-1

                  v.

     OFFICE OF PERSONNEL                             DATE: July 1, 2016
       MANAGEMENT,
                   Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Linda K. Stevens, Saint Joseph, Missouri, pro se.

           Kristopher Lee Rogers, 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 final decision of the Office of Personnel Management (OPM) finding
     that she was not entitled to a lump-sum death benefit under the Civil Service
     Retirement System (CSRS) based on the death of her brother.            Generally, we


     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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     grant petitions such as this 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).

                            DISCUSSION OF ARGUMENTS ON REVIEW
¶2             The appellant’s brother (the decedent) was a Federal employee covered
     under CSRS until his death on December 25, 2012. Initial Appeal File (IAF),
     Tab 9 at 17, 26-27, Tab 16 at 6. Prior to his death, on November 28, 2011, the
     decedent completed a designation of beneficiary form, designating the appellant
     as his sole beneficiary. 2 IAF, Tab 9 at 25, Tab 16 at 6. The decedent submitted
     the form to his employing agency, the Defense Commissary Agency (DeCA), by
     June 22, 2012, 6 months prior to his death.            IAF, Tab 9 at 25, Tab 16 at 6.
     However, OPM did not receive the form until March 2013, more than 2 months
     after the decedent’s death, when DeCA first forwarded a copy of the form to
     OPM. IAF, Tab 16 at 4, 8.


     2
      The decedent completed a Federal Employees’ Retirement System (FERS) designation
     of beneficiary form. IAF, Tab 16 at 6. However, the decedent was covered under
     CSRS, not FERS. IAF, Tab 9 at 26-27.
                                                                                           3

¶3         Approximately a month after the decedent’s death, the appellant filed an
     application with OPM for the decedent’s lump-sum death benefit. 3 IAF, Tab 9
     at 13-16. In a February 21, 2014 final decision, OPM found that the appellant
     was not eligible to receive the decedent’s lump-sum death benefit because the
     decedent’s designation of beneficiary form was not received by OPM prior to his
     death. 4 Id. at 10-11.
¶4         The appellant appealed OPM’s final decision to the Board. 5 IAF, Tab 1.
     She did not request a hearing.      Id. at 3.   After considering the evidence and
     argument submitted by the parties, the administrative judge issued an initial
     decision affirming OPM’s final decision. IAF, Tab 19, Initial Decision (ID) at 1,
     4. The appellant has filed a petition for review of the initial decision, and the
     agency has responded in opposition to the petition for review.             Petition for
     Review (PFR) File, Tabs 1, 4.
¶5         Under 5 U.S.C. § 8342(c), lump-sum CSRS benefits first shall be paid to
     “the beneficiary or beneficiaries designated by the employee or Member in a


     3
       Again, although the decedent was covered under CSRS, IAF, Tab 9 at 26-27, the
     appellant used a FERS application form, id. at 13.
     4
       Previously, OPM issued an April 17, 2013 final decision finding that the appellant
     was not entitled to the decedent’s lump-sum death benefit, but OPM subsequently
     rescinded that decision. See Stevens v. Office of Personnel Management, MSPB Docket
     No. CH-0831-13-0726-I-1, Initial Decision at 2 (Aug. 13, 2013).
     5
       The appellant’s Board appeal form was executed on February 28, 2014, seven days
     after OPM issued the February 21, 2014 reconsideration decision. IAF, Tab 1 at 3.
     However, the appellant erroneously submitted the appeal form to OPM, rather than the
     Board. Id. at 1. OPM forwarded the appeal form to the Board on January 20, 2015. Id.
     at 1, 15. The administrative judge issued several orders requiring the parties to submit
     evidence and argument regarding the timeliness of the appeal, IAF, Tabs 4, 10, 12,
     Tab 15 at 2, but ultimately, did not make any finding regarding whether the appeal was
     timely, IAF, Tab 19, Initial Decision. We decline to resolve whether the appeal was
     timely because we affirm the administrative judge’s finding that the appellant is not
     entitled to relief on the merits. See Alcantara v. Office of Personnel Management,
     88 M.S.P.R. 61, ¶ 4 (2001) (finding that the Board would not resolve whether an
     administrative judge had correctly dismissed an appeal as untimely filed without good
     cause shown, where the appellant was not entitled to relief on the merits).
                                                                                         4

     signed and witnessed writing received in the Office before his death.” OPM’s
     implementing regulation at 5 C.F.R. § 831.2005(a) provides that a designation of
     beneficiary “must be in writing, signed, and witnessed, and received in OPM
     before the death of the designator.” 6
¶6         The Board has held that, pursuant to 5 U.S.C. § 8342(c) and 5 C.F.R.
     § 831.2005(a), a CSRS designation of beneficiary form filed with an employing
     agency that is not received by OPM prior to an employee’s death is ineffective,
     even if OPM did not receive the form due to the employing agency’s delay in
     forwarding     it   to   OPM.            See   Davis   v.   Office    of   Personnel
     Management, 76 M.S.P.R. 423, 424, 426 (1997) (finding that a designation of
     beneficiary form was ineffective when it was not received by OPM prior to an
     employee’s death, although the employee submitted it to his employing agency
     prior to his death and approximately 3 months before it was received by OPM),
     aff’d, 168 F.3d 1316 (Fed. Cir. 1998) (Table); Finch v. Office of Personnel
     Management, 72 M.S.P.R. 221, 223, 227 (1996) (same).
¶7         Here, it is undisputed that, although the decedent submitted his designation
     of beneficiary form to DeCA prior to his death, he died before OPM received the
     form. IAF, Tab 9 at 17, Tab 16 at 4, 6, 8. Therefore, the administrative judge
     correctly found that the decedent did not effectively designate the appellant as his
     beneficiary and that she was not entitled to his lump-sum death benefit. ID at 4.




     6
        In the initial decision, the administrative judge erroneously cited “5 C.F.R.
     § 834.205(a)” in support of this same requirement.         ID at 3.    However, the
     administrative judge’s error was not prejudicial to the appellant’s substantive rights
     because the applicable regulation, 5 C.F.R. § 831.2005(a), sets forth the same
     requirement relied on by the administrative judge. See Panter v. Department of the
     Air Force, 22 M.S.P.R. 281, 282 (1984) (finding that an adjudicatory error that is not
     prejudicial to a party’s substantive rights provides no basis for reversal of an
     initial decision).
                                                                                           5

¶8         On review, the appellant argues that the decedent intended to designate her
     as his beneficiary and that it would be unfair to deny her the decedent’s benefit. 7
     PFR File, Tab 1 at 5.     However, regardless of the decedent’s intent, 5 U.S.C.
     § 8342(c) and 5 C.F.R. § 831.2005(a) do not afford OPM or the Board discretion
     to award beneficiary status to a person who was not designated as a beneficiary in
     a form received by OPM prior to the decedent’s death. See Finch, 72 M.S.P.R.
     at 227 (finding that, although the result was contrary to a decedent’s wishes, the
     Board could not award CSRS lump-sum benefits to an individual designated as a
     beneficiary on a form that was not received by OPM prior to the decedent’s
     death); Landsberger v. Office of Personnel Management, 50 M.S.P.R. 13, 17
     (1991) (finding that an administrative judge erred in considering a decedent’s
     intent because 5 U.S.C. § 8342(c) did not afford OPM or the Board any discretion
     to award beneficiary status to a person not designated as a beneficiary in a form
     properly filed with OPM), aff’d, 956 F.2d 1174 (Fed. Cir. 1992) (Table).
¶9         While we are sympathetic to the appellant’s situation, it is well-established
     that the Government cannot be estopped from denying benefits not otherwise
     permitted by law, even if the denial of such benefits may seem unfair. See Office
     of Personnel Management v. Richmond, 496 U.S. 414, 416, 434 (1990).
     Furthermore, 5 U.S.C. § 8432(c) sets forth a statutory order of precedence for the
     payment of lump-sum CSRS benefits and because the decedent did not effectively
     designate the appellant as a beneficiary, other individuals in the order of
     precedence may be legally entitled to the decedent’s benefit. 8 Accordingly, for

     7
       The appellant also argues that she applied for the decedent’s benefit in a timely
     manner. PFR File, Tab 1 at 3. However, OPM did not deny the appellant’s application
     on the ground that it was untimely, IAF, Tab 9 at 10-11, and the administrative judge
     did not affirm OPM’s final decision on the ground that the appellant’s application was
     untimely, see ID. Therefore, we need not address this argument further.
     8
       On review, the appellant contends that, if the Board does not award her the decedent’s
     lump-sum benefit, it “will go to the [G]overnment.” PFR File, Tab 1 at 5. Instead,
     pursuant to 5 U.S.C. § 8342(c), if there are no designated beneficiaries, the order of
     precedence in the payment of a lump sum benefit is: (1) a widow or widower of the
                                                                                      6

these reasons and the reasons discussed above, we find no basis to disturb the
initial decision.

                    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

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 United States 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
United 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



employee; (2) children of the employee and descendants of deceased children by
representation; (3) parents of the employee or the survivor of them; (4) the executor or
administrator of the employee’s estate; (5) other next of kin; and (6) if none of the
above, to such other next of kin of the employee as OPM determines to be entitled
under the laws of the domicile of the employee at the date of his death. See 5 U.S.C.
§ 8342(c).
                                                                                 7

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:                              ______________________________
                                            Jennifer Everling
                                            Acting Clerk of the Board
Washington, D.C.
