                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     ANN MARIE VALINOTI-CARCIONE,                    DOCKET NUMBER
                  Appellant,                         PH-0831-14-0072-I-1

                  v.

     OFFICE OF PERSONNEL                             DATE: August 28, 2014
       MANAGEMENT,
                   Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Ann Marie Valinoti-Carcione, Manahawkin, New Jersey, pro se.

           Linnette Scott, Washington, D.C., for the agency.


                                           BEFORE

                              Susan Tsui Grundmann, Chairman
                              Anne M. Wagner, Vice Chairman
                                 Mark A. Robbins, Member


                                       FINAL ORDER

¶1         The appellant has filed a petition for review of the initial decision, which
     upheld the Office of Personnel Management’s (OPM) final decision to deny her
     application for a survivor annuity. Generally, we grant petitions such as this one
     only when: the initial decision contains erroneous findings of material fact; 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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).
                                                                                       2

     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 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).
¶2         The following facts are undisputed. The appellant’s father, Mr. Carcioni,
     retired under the Civil Service Retirement System (CSRS) in 1975 and elected a
     maximum survivor annuity in favor of his wife. Initial Appeal File (IAF), Tab 7
     at 89-92. Mr Carcioni’s wife predeceased him. Petition for Review (PFR) File,
     Tab 4 at 2. On July 12, 2011, Mr. Carcioni and the appellant wrote OPM a letter
     requesting that the survivor annuity be paid to the appellant as a disabled
     dependent child upon Mr. Carcioni’s death. IAF, Tab 7 at 89-90. OPM denied
     the request on the basis that the appellant is married. Id. at 10, 88. Mr. Carcioni
     passed away on June 7, 2012.       Id. at 86.   After several additional rounds of
     communication, id. at 14-35, 86-87, OPM issued a final decision denying the
     survivor annuity request on the same basis, id. at 8-9.
¶3        The appellant filed a Board appeal, and the administrative judge issued an
     initial decision affirming OPM’s final decision.      IAF, Tab 1, Tab 11, Initial
     Decision (ID) at 1, 4. He found that, because the appellant was married, she
     was not eligible for a survivor annuity under the statute and that he was not
     authorized to make an exception based on the equities of the case. ID at 3-4.
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¶4        The appellant has filed a petition for review, arguing that Mr. Carcioni
     intended for his wife to look after the appellant upon his death but that
     Mrs. Carcioni unexpectedly predeceased him, thus frustrating his plans.           PFR
     File, Tab 4 at 2. She also states that Mr. Carcioni’s intention and understanding
     was that his annuity benefits would pass to the appellant based on her disabling
     condition. Id. at 3. The appellant explains that her health is deteriorating and
     that her private disability insurance payments are scheduled to stop in April 2014.
     Id. at 2. She states that she is being discriminated against based on her marital
     status. Id. OPM has filed a response. PFR File, Tab 6.
¶5        Although    we   sympathize    with   the   appellant,   we   agree   with   the
     administrative judge that she is not eligible for a survivor annuity under the
     statute and that the Board lacks authority to make an exception for her. ID at 3-4.
     The right of a child to a CSRS survivor annuity based on her parent’s service
     arises under 5 U.S.C. § 8341(e). See Cleland v. Office of Personnel Management,
     984 F.2d 1193, 1194-95 (Fed. Cir. 1993). That section provides in relevant part
     as follows:
           If the employee or Member is not survived by a spouse or a former
           spouse who is the natural or adoptive parent of a surviving child of
           the employee or Member, that surviving child is entitled to
           an annuity . . . .
     5 U.S.C. § 8341(e)(2). The key question in this case is whether the appellant is a
     “child” within the meaning of the statute. The term “child” is defined at 5 U.S.C.
     § 8341(a)(4)(A)-(C). Because the appellant is more than 22 years of age, IAF,
     Tab 7 at 10, she meets the definition, if at all, under 5 U.S.C. § 8341(a)(4)(B).
     Under that subparagraph, “child” means:
           such unmarried dependent child regardless of age who is incapable
           of self-support because of mental or physical disability incurred
           before age 18.
     Thus, to meet the definition of “child” and be entitled to a survivor annuity under
     5 U.S.C. § 8341(e)(2), the appellant must show, among other things, that she is
     unmarried. Rajbhandary v. Office of Personnel Management, 91 M.S.P.R. 192,
                                                                                         4

     ¶ 14 n.2 (2002); see Cheeseman v. Office of Personnel Management, 791 F.2d
     138, 140-41 (Fed. Cir. 1986) (the burden of proving entitlement to a survivor
     annuity is on the applicant for benefits). In this case, it is undisputed that the
     appellant is married. IAF, Tab 7 at 10; ID at 3. Therefore, she does not meet the
     definition of “child” under 5 U.S.C. § 8341(a)(4), and she is not entitled to a
     child’s survivor annuity under 5 U.S.C. § 8341(e)(2).
¶6         On review, the appellant appears to concede that she is not eligible for an
     annuity under the language of the statute. PFR File, Tab 4 at 2. She appeals
     chiefly to the equities of the situation and the financial difficulties that she will
     face in the absence of the annuity. Id. at 2-3. Equitable considerations, however,
     do not empower OPM or the Board to award monetary benefits in the absence of
     statutory authorization. A claim for payment of money from the public treasury
     that is contrary to a statutory appropriation is prohibited by the Appropriations
     Clause of the Constitution, art. I, § 9, cl. 7, and the government cannot be
     estopped from denying benefits not otherwise permitted by law.              Office of
     Personnel Management v. Richmond, 496 U.S. 414, 424, 434 (1990); Devlin v.
     Office of Personnel Management, 120 M.S.P.R. 78, ¶ 9 (2013).
¶7         The appellant also appears to argue that the denial of benefits is based on
     marital status discrimination. PFR File, Tab 4 at 2. The appellant’s argument is
     correct as far as it goes, but it still provides no basis to disturb OPM’s final
     decision because the statute itself provides that married individuals will be
     treated differently than unmarried individuals regardless of whether they
     otherwise meet the statutory criteria for a survivor annuity under 5 U.S.C.
     § 8341(e)(2). 2 5 U.S.C. § 8341(a)(4).




     2
      Like the administrative judge, we decline to reach the issue of whether the appellant
     meets the remaining criteria. ID at 3.
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                NOTICE TO THE APPELLANT REGARDING
                   YOUR FURTHER REVIEW RIGHTS
     You have the right to request review of this final decision by the
United States 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 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 your court
appeal, you may visit our website at http://www.mspb.gov/probono for a list of
attorneys who have expressed interest in providing pro bono representation for
Merit Systems Protection Board appellants before the court. The Merit Systems
                                                                           6

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.
