                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     EDWIN J. HARRIS,                                DOCKET NUMBER
                   Appellant,                        DE-0843-15-0066-I-1

                  v.

     OFFICE OF PERSONNEL                             DATE: February 10, 2016
       MANAGEMENT,
                   Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Edwin J. Harris, Kila, Montana, pro se.

           Karla W. Yeakle, 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 his application for a survivor annuity.           Generally, we grant
     petitions such as this one only when:       the initial decision contains erroneous


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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     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, and based on the
     following points and authorities, 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 is the surviving spouse of Crystal Harris, a Federal
     Employees’ Retirement System retiree. Initial Appeal File (IAF), Tab 8 at 33, 35.
     On January 25, 2012, Mrs. Harris submitted an Application for Immediate
     Retirement, Standard Form 3107, electing an annuity payable only during her
     lifetime. Id. at 29-31. With her application, Mrs. Harris included a notarized
     consent form signed by the appellant, indicating that he consented to
     Mrs. Harris’s annuity election. Id. at 32.
¶3             Mrs. Harris retired from Federal service on a disability retirement, effective
     April 12, 2012. Id. at 35. Approximately 10 months later, she was hospitalized.
     IAF, Tab 13, Hearing Compact Disc (HCD) at 3:30-4:05 (testimony of the
     appellant). According to the appellant, at that juncture, Mrs. Harris decided that
     she had erred in not electing a survivor annuity, and she intended to change her
     annuity election as soon as she left the hospital. Id. at 4:08-4:27.
                                                                                         3

¶4         Unfortunately, Mrs. Harris never left the hospital. Id. at 4:29-4:35. On or
     about March 29, 2013, she became incapacitated to handle her personal affairs.
     IAF, Tab 1 at 10; HCD at 4:36-4:51. Thereafter, the appellant telephoned OPM
     to inquire about changing Mrs. Harris’s survivor annuity election pursuant to a
     power of attorney.      HCD at 5:12-5:51; see IAF, Tab 1 at 7-9.        The appellant
     contends, and OPM does not dispute, that an OPM representative told him that
     only Mrs. Harris could change the election and that OPM would not accept the
     power of attorney. 2 HCD at 6:34-6:49; see IAF, Tab 8; Petition for Review (PFR)
     File, Tab 4. The appellant did not pursue the matter further at that time. IAF,
     Tab 1 at 5; HCD at 6:50-7:16 (testimony of the appellant).
¶5         Mrs. Harris died on May 6, 2013, approximately 13 months after her
     retirement. IAF, Tab 8 at 33. On May 28, 2013, the appellant wrote to OPM,
     stating that OPM had provided him with misinformation regarding the ability to
     change Mrs. Harris’s annuity election pursuant to the power of attorney, and
     requesting that “Survivor Benefits for [Mrs. Harris] [be] allowed as she wished
     on her death bed.”      IAF, Tab 1 at 12.        The appellant subsequently filed an
     application for survivor annuity benefits, which OPM denied on the ground that
     its records reflected that Mrs. Harris did not elect to provide a survivor annuity
     for the appellant.          IAF Tab 8 at 8, 17-20.          The appellant requested
     reconsideration, and OPM issued a reconsideration decision affirming its initial
     decision. Id. at 6-7, 15.
¶6         The   appellant       filed   a   timely   Board   appeal   challenging   OPM’s
     reconsideration decision, arguing that OPM should have allowed him to change
     Mrs. Harris’s survivor annuity election pursuant to the power of attorney. IAF,
     Tab 1 at 1, 5. Following a telephonic hearing, the administrative judge affirmed
     OPM’s reconsideration decision. IAF, Tab 14, Initial Decision (ID). He found

     2
       The appellant asserted that both the Federal Long Term Care Insurance Program and
     the Thrift Savings Plan allowed him to make changes pursuant to the power of attorney.
     HCD at 5:53-6:33 (testimony of the appellant).
                                                                                       4

     that OPM did not provide sufficient information to afford deference to its policy
     regarding powers of attorney. ID at 4 n.1; see IAF, Tab 8 at 4-5. Therefore, he
     assumed without finding that the appellant could have changed Mrs. Harris’s
     survivor annuity election pursuant to that instrument and that the OPM
     representative provided the appellant with misinformation. ID at 4, 6. However,
     the administrative judge found that a valid election to provide the appellant with a
     survivor annuity was not filed with OPM prior to Mrs. Harris’s death, as required
     by 5 C.F.R. § 842.610(b)(6), and that the appellant failed to establish any grounds
     for waiver of this deadline. ID at 5-7.
¶7        The appellant has filed a petition for review, and the agency has responded
     to the petition for review. PFR File, Tabs 1, 4.      On September 11, 2015, the
     Board issued a show cause order directing OPM to submit evidence and argument
     regarding whether OPM has a policy prohibiting power of attorney filings, and
     affording the appellant the opportunity to respond to OPM’s submission.
     PFR File, Tab 5 at 2. Both parties timely responded to the show cause order.
     PFR File, Tabs 8, 10.

                     DISCUSSION OF ARGUMENTS ON REVIEW
¶8        An individual seeking retirement benefits bears the burden of proving
     entitlement to those benefits by preponderant evidence. Cheeseman v. Office of
     Personnel Management, 791 F.2d 138, 140-41 (Fed. Cir. 1986); 5 C.F.R.
     § 1201.56(a)(2). Under 5 U.S.C. § 8416(d)(1), an annuitant, such as Mrs. Harris,
     who was married at the time of retirement and jointly waived any right that her
     spouse had to a survivor annuity, has an 18-month window after her retirement to
     elect to reduce her monthly annuity payment to provide a survivor annuity for her
     spouse. However, pursuant to an OPM regulation, such an election must be made
     before the retiree dies. 5 C.F.R. § 842.610(b)(1), (6).
¶9        Thus, although Mrs. Harris could have elected to provide the appellant with
     a survivor annuity within an 18-month window after her retirement, she had to
                                                                                        5

      file such an election with OPM prior to her death, which occurred approximately
      13 months    after   her   retirement.    See    5 U.S.C.   § 8416(d)(1);   5 C.F.R.
      § 842.610(b)(1), (6); IAF, Tab 8 at 33, 35.
¶10         Neither Mrs. Harris, nor the appellant acting on her behalf pursuant to the
      power of attorney, filed an election of a survivor annuity with OPM prior to her
      death. IAF, Tab 1 at 5; PFR File, Tab 1; see IAF, Tab 8 at 12. Therefore, the
      pertinent inquiry is whether the appellant established a basis for waiver of
      this deadline.
¶11         The Board has recognized three bases for waiving a filing deadline
      prescribed by statute or regulation: (1) the statute or regulation may provide for a
      waiver under specified circumstances; (2) an agency’s affirmative misconduct
      may preclude enforcement of the deadline under the doctrine of equitable
      estoppel; and (3) an agency’s failure to provide a notice of rights and the
      applicable filing deadline, where such notice is required by statute or regulation,
      may warrant a waiver of the deadline.         Perez Peraza v. Office of Personnel
      Management, 114 M.S.P.R. 457, ¶ 7 (2010).
¶12         In the present appeal, the appellant has not challenged the administrative
      judge’s finding that the first potential basis for waiver does not apply, and we
      discern no reason to disturb this finding on review. ID at 5; PFR File, Tab 1.
¶13         However, the appellant argues on review that basis (2), the doctrine of
      equitable estoppel, warrants waiver of the filing deadline. PFR File, Tab 1 at 1-3.
      In OPM’s response to the show cause order, it argues that equitable estoppel is
      unavailable as a potential basis for waiver under Office of Personnel
      Management v. Richmond, 496 U.S. 414 (1990). PFR File, Tab 8 at 10-11. We
      agree with the administrative judge that equitable estoppel is available as a
      potential basis for waiver but that the requirements for invoking the doctrine
      are not met here. ID at 5-6.
¶14         Richmond holds that estoppel against the Government cannot result in the
      payment of money not otherwise provided for by law. 496 U.S. at 415-16, 424,
                                                                                       6

      434. However, the Board previously has held that equitable estoppel would not
      result in the unlawful expenditure of appropriated funds in violation of Richmond
      where appellants untimely sought to provide for or increase survivor annuities.
      See Nunes v. Office of Personnel Management, 111 M.S.P.R. 221, ¶¶ 16, 18
      (2009) (finding that equitable estoppel would not result in the unlawful
      expenditure of funds where an appellant sought to reduce his Civil Service
      Retirement System (CSRS) annuity to provide his spouse with a survivor annuity,
      although his election of a survivor annuity was untimely); Blaha v. Office of
      Personnel Management, 106 M.S.P.R. 265, ¶¶ 7-9 (2007) (determining that
      equitable estoppel would not result in the unlawful expenditure of funds where an
      appellant untimely sought to change her CSRS annuity election to provide her
      domestic partner with a survivor annuity).
¶15          OPM contends that the present case is distinguishable from prior cases in
      which the Board has held that equitable estoppel is available as a potential basis
      for waiver because Mrs. Harris did not “pay for” a survivor annuity by receiving
      a reduced annuity during her lifetime.       PFR File, Tab 8 at 11.   We find this
      argument unpersuasive. We perceive no pertinent distinction between the present
      case and a situation where a retiree dies immediately after filing an election with
      OPM.     In either scenario, the retiree did not “pay for” the survivor annuity
      through receipt of a reduced annuity during his or her lifetime. However, OPM
      permits a survivor to collect an annuity if the retiree died before his or her
      payments were reduced, provided that the retiree paid the required deposit in
      accordance with 5 U.S.C. § 8416(d)(2)(B) and 5 C.F.R. § 842.610(b)(3).
¶16          Here, if the filing deadline were waived, OPM could simply reduce the
      appellant’s survivor annuity to recover the deposit that Mrs. Harris was required
      by law to make to entitle the appellant to such an annuity. See Thomas v. Office
      of Personnel Management, 95 M.S.P.R. 695, ¶¶ 2, 7-10 (2004) (finding that OPM
      was in compliance with an order to provide a CSRS survivor annuity when it
      reduced the annuity to recover the deposit that the appellant’s decedent was
                                                                                             7

      required to make). For these reasons, we discern no reason to depart from the
      Board’s prior decisions in Nunes and Blaha, and find that Richmond is not a
      barrier to the availability of equitable estoppel as a possible basis for waiver.
¶17         Nevertheless, although equitable estoppel is available as a potential basis
      for waiver, we agree with the administrative judge that equitable estoppel
      does not form a basis for waiving the regulatory filing deadline under the facts of
      this case. ID at 5-6.     The appellant argues on review that the filing deadline
      should be waived based on the doctrine of equitable estoppel because OPM
      negligently provided him with misinformation when the OPM representative told
      him that he could not change Mrs. Harris’s survivor annuity election pursuant to a
      power of attorney. PFR File, Tab 1 at 1-3. In OPM’s response to the show cause
      order, OPM submitted evidence, in the form of printouts from OPM’s website and
      OPM’s Representative Payee Application, indicating that OPM will not make a
      payee change based upon a power of attorney and that OPM does not recognize
      power of attorney filings, with the sole exception of changes to Federal
      Employees Health Benefits Program coverage. 3 PFR File, Tab 8 at 5-7, 13, 20,
      30-31. Therefore, the OPM representative accurately informed the appellant that
      OPM would not allow him to change Mrs. Harris’s survivor annuity election
      pursuant to a power of attorney. HCD at 6:34-6:49 (testimony of the appellant).
¶18         However, although the OPM representative accurately conveyed OPM’s
      policy,   the   policy   was not   arrived   at   after   a   formal   adjudication   or
      notice-and-comment rulemaking, and therefore, is not entitled to deference under
      Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837,
      843-44 (1984).     See Christensen v. Harris County, 529 U.S. 576, 587 (2000)
      (finding that interpretations of statutes contained in “opinion letters—like

      3
        The appellant argues that these provisions are not applicable to him because he did not
      apply to be a representative payee. PFR File, Tab 10 at 1-2. However, although several
      of the documents submitted by OPM refer to representative payees, the documents
      reflect that OPM generally does not recognize power of attorney filings. PFR File,
      Tab 8 at 30.
                                                                                                 8

      interpretations contained in policy statements, agency manuals, and enforcement
      guidelines, all of which lack the force of law—do not warrant Chevron-style
      deference”). Nevertheless, the policy potentially would be entitled to a lesser
      degree of deference depending on “the thoroughness evident in its consideration,
      the   validity    of   its   reasoning,   its   consistency     with   earlier   and    later
      pronouncements, and all those factors which give it power to persuade.”
      Skidmore v. Swift & Company, 323 U.S. 134, 140 (1944); see Brown v. Office of
      Personnel Management, 65 M.S.P.R. 380, 384-85 (1994) (declining to afford
      deference to an alleged OPM policy where OPM failed to provide “meaningful
      guidance or substantial evidence of a consistent policy” on this issue) (citing
      Parker v. Office of Personnel Management, 974 F.2d 164, 168 (Fed. Cir. 1992)
      (declining   to    defer     to   an   OPM      policy   that    was not    “properly     or
      publicly announced”)).
¶19         We need not decide the issue of whether to defer to OPM’s policy, however,
      because, even assuming that the policy is invalid, we agree with the
      administrative judge that we cannot waive the filing deadline based on the
      doctrine of equitable estoppel. See ID at 6. Our reviewing court, the U.S. Court
      of Appeals for the Federal Circuit (Federal Circuit), has held that, to establish a
      claim of equitable estoppel against a Government agency, an appellant must
      demonstrate affirmative misconduct on the part of Government officials. 4
      Zacharin v. United States, 213 F.3d 1366, 1371 (Fed. Cir. 2000). The Board also
      has repeatedly held that an agency’s negligent provision of misinformation




      4
        On review, the appellant argues that he should not be required to demonstrate that the
      agency engaged in affirmative misconduct. PFR File, Tab 1 at 1-3. However, it is well
      settled that decisions of the Federal Circuit constitute precedent that is binding on the
      Board, Spain v. Department of Homeland Security, 99 M.S.P.R. 529, ¶ 9 (2005), aff’d,
      177 F. App’x 88 (Fed. Cir. 2006), and thus, the appellant is required to demonstrate
      affirmative misconduct on the part of Government officials.
                                                                                             9

      does not constitute affirmative misconduct. 5      Perez Peraza, 114 M.S.P.R. 457,
      ¶ 10; Scriffiny v. Office of Personnel Management, 108 M.S.P.R. 378, ¶¶ 12-13
      (2008), overruled on other grounds by Nunes, 111 M.S.P.R. 221, ¶ 15.                The
      appellant failed either to allege or establish that the OPM representative who
      informed him of OPM’s policy intentionally provided him with inaccurate
      information, or otherwise engaged in affirmative misconduct. IAF, Tab 1 at 5,
      Tab 11; PFR File, Tabs 1, 10. Therefore, we conclude that the filing deadline in
      this case cannot be waived based upon the doctrine of equitable estoppel. See
      Perez Peraza, 114 M.S.P.R. 457, ¶ 10 (determining that an administrative judge
      erred in applying equitable estoppel where the evidence did not demonstrate that
      the relevant Government officials knew that they were providing the appellant
      with inaccurate information). We have considered the appellant’s arguments on
      review that the application of these standards is unfair, but the equities of the
      situation do not alter our obligation to apply the relevant legal standards. PFR
      File, Tab 1 at 1-3.
¶20         On review, the appellant also asserts that the filing deadline should be
      waived because the OPM representative allegedly failed to advise him that he
      could change Mrs. Harris’s annuity election if he obtained a guardianship. PFR
      File, Tab 1 at 2.     We construe the appellant’s assertion as an argument that
      basis (3), an agency’s failure to provide a notice of rights and the applicable


      5
        Prior to conducting the telephonic hearing, the administrative judge informed the
      appellant of the requirement to establish that the agency engaged in affirmative
      misconduct. IAF, Tab 12 at 3. He neglected to inform him, though, that the agency
      only engaged in affirmative misconduct if it knew that the information provided was
      incorrect. Id. However, this oversight was cured by the initial decision, which
      provided this information. ID at 6; see Mapstone v. Department of the Interior,
      106 M.S.P.R. 691, ¶ 9 (2007) (finding that an administrative judge’s failure to provide
      an appellant with proper jurisdictional notice can be cured if the initial decision
      contains the notice that was lacking, thus affording the appellant an opportunity to meet
      his burden on petition for review); cf. Perez Peraza, 114 M.S.P.R. 457, ¶¶ 12-13
      (remanding an appeal to inform the parties of the legal standard for establishing
      equitable estoppel where the initial decision did not provide this information).
                                                                                10

filing deadline where such notice is required by statute or regulation, warrants
waiver of the filing deadline. However, in response to the show cause order,
OPM submitted evidence, in the form of OPM’s representative payee approval
notice and OPM’s internal guidance, indicating that OPM does not allow
court-appointed guardians or other representative payees to make decisions
regarding survivor annuities on behalf of annuitants. PFR File, Tab 8 at 6, 17,
19. Therefore, the appellant’s assertion that OPM would have permitted him to
change Mrs. Harris’s survivor annuity election if he had obtained a guardianship
is incorrect. PFR File, Tab 1 at 2. In any event, no statute or regulation requires
OPM to provide notice regarding the ability to change a survivor annuity election
by means of a guardianship, and accordingly, OPM’s failure to provide such
notice would not form a basis for waiving the filing deadline.       See Speker v.
Office of Personnel Management, 45 M.S.P.R. 380, 385-86 (1990) (finding that
OPM’s failure to notify an appellant of her right to elect an alternative annuity
did not form a basis for waiving a filing deadline where the applicable statute and
regulations in effect at the time did not require OPM to provide such notice),
aff’d, 928 F.2d 410 (Fed. Cir. 1991) (Table), modified on other grounds by Fox v.
Office of Personnel Management, 50 M.S.P.R. 602, 606 n.4 (1991).

                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,
                                                                                 11

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. 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:                               ______________________________
                                             William D. Spencer
                                             Clerk of the Board
Washington, D.C.
