                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     MARK E. CAHILL,                                 DOCKET NUMBER
                   Appellant,                        DE-0831-13-1773-I-1

                  v.

     OFFICE OF PERSONNEL                             DATE: November 17, 2014
       MANAGEMENT,
                   Agency.



                THIS FINAL ORDER IS NONPRECEDENTIAL *

           Mark E. Cahill, Columbia Falls, Montana, pro se.

           Cynthia Reinhold, 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
     dismissed the appeal of a final decision by the Office of Personnel Management
     (OPM) denying survivor annuity benefits under the Civil Service Retirement
     System (CSRS) for lack of jurisdiction, finding that the appellant filed the appeal

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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     on behalf of his mother’s estate after her death. For the following reasons, we
     AFFIRM the administrative judge’s finding that the appellant cannot initiate an
     appeal on behalf of his mother’s estate; however, we MODIFY the initial decision
     to find that the Board has jurisdiction to consider the appellant’s individual
     claims for benefits under CSRS and AFFIRM OPM’s decision denying the
     appellant benefits based on his father’s federal service.     Except as expressly
     modified by this Final Order, we AFFIRM the initial decision.

                                      BACKGROUND
¶2        The appellant’s father (retiree) had retired from federal service in 1978,
     electing a maximum survivor annuity for his then wife, who was also the
     appellant’s mother, before the couple divorced in 1981. Initial Appeal File (IAF),
     Tab 1 at 5, Tab 11 at 31-33. After the death of the retiree in June 1991, IAF,
     Tab 11 at 30, OPM determined that his former wife was not entitled to a former
     spouse survivor annuity benefit under the divorce decree issued prior to the
     enactment of the Civil Service Retirement Spouse Equity Act of 1984 (1984 Act),
     id.; see IAF, Tab 11 at 5, 12. OPM determined that the retiree’s annuity should
     have been adjusted from the elected reduced rate to the life rate at the time of the
     divorce.   IAF, Tab 1 at 5, Tab 11 at 19.     Following an application for death
     benefit filed by the appellant and his sister, IAF, Tab 11 at 14, 20-21, OPM
     recomputed the retiree’s annuity retroactive to the date of the dissolution of the
     marriage and provided the appellant and his sister a lump-sum payment, which
     included the retroactive adjustment, IAF, Tab 1 at 5, Tab 11 at 17-19.
¶3        In June 2012, after his mother’s death, and more than 20 years after the
     retiree’s death, the appellant contacted OPM, asserting his mother’s purported
     entitlement to former spouse survivor annuity benefits.       Petition for Review
     (PFR) File, Tab 3 at 3-4. OPM responded that all available benefits had been
     paid to the appellant and his sister and that his mother was not eligible for a
     survivor annuity for the reasons provided in 1991. IAF, Tab 11 at 11-13. The
                                                                                         3

     appellant continued to pursue additional benefits from OPM, particularly on the
     grounds that OPM had erroneously denied payment of a survivor annuity to his
     mother as provided for in his parents’ 1981 property settlement agreement. IAF,
     Tab 13. OPM issued a final decision in June 2013, affirming its prior decisions
     that all available benefits had been paid to the appellant and his sister and that the
     dissolution decree and property settlement agreement between the appellant’s
     parents was unacceptable for processing survivor annuity benefits. IAF, Tab 1
     at 5.
¶4           The appellant filed this appeal and identified his deceased mother as the
     appellant in the claim, arguing that OPM has misinterpreted the law in denying
     her survivor benefits. IAF, Tab 1 at 1-2. OPM argued that the appellant’s mother
     was ineligible for such benefits because the property settlement agreement
     apportioning a share of the retiree’s benefits was entered prior to the enactment of
     the 1984 Act, and the mother had remarried prior to the age of 55. IAF, Tab 11
     at 5; see 5 C.F.R. §§ 838.802, 838.1004. The administrative judge dismissed the
     appeal for lack of jurisdiction, finding that the OPM decision under appeal is
     whether the estate of the appellant’s deceased mother is entitled to survivor
     annuity benefits, and the estate lacked standing to file the Board appeal after the
     death of the appellant’s mother. IAF, Tab 20, Initial Decision (ID) at 4-5.
¶5           On review, the appellant asserts that he did not file a claim on behalf of the
     estate of his mother but rather requested payment of the accrued annuity
     “pursuant to the Federal order of precedence and applicable statutes.” PFR File,
     Tab 3 at 2. He asserts that OPM failed to provide adequate notice regarding
     reelection rights, and claims damages from his mother’s former spouse annuity
     benefits “as the natural object of [his] parents[’] bounty.” Id. at 3.

                       DISCUSSION OF ARGUMENTS ON REVIEW
¶6           The Board’s jurisdiction is not plenary; it is limited to those matters over
     which it has been given jurisdiction by law, rule, or regulation. Maddox v. Merit
                                                                                        4

     Systems Protection Board, 759 F.2d 9, 10 (Fed. Cir. 1985). The appellant bears
     the burden of proof of establishing Board jurisdiction by a preponderance of the
     evidence. 5 C.F.R. § 1201.56(a)(2)(i). The burden of proving entitlement to a
     survivor annuity is on the applicant for benefits.         Cheeseman v. Office of
     Personnel Management, 791 F.2d 138, 140-41 (Fed. Cir. 1986); 5 C.F.R.
     § 1201.56(a)(2).
¶7         To the extent that the appellant filed the appeal on behalf of his mother for
     former spouse annuity benefits, we agree with the administrative judge that the
     appellant lacks standing and that the estate cannot file an appeal after the death of
     the individual claiming benefits.     Although the Board’s regulations permit a
     properly substituted party to pursue the appeal of an appellant who dies or is
     unable to pursue the appeal, 5 C.F.R. § 1201.35, they do not provide for a
     substitution of a party before the appeal is filed, Glover v. Department of the
     Army, 94 M.S.P.R. 534, ¶ 10 (2003).        The Board has applied this prohibition
     against an estate or survivor initiating an appeal in a range of claims, including
     individual right of action and chapter 75 appeals, and the principle also applies to
     appellants in retirement appeals.      See id., ¶ 9; see also Estate of Pyc v.
     Department of Veterans Affairs, 73 M.S.P.R. 326, 328 & n.2 (1997). The U.S.
     Court of Appeals for the Federal Circuit has upheld the Board’s determination
     that the right to file for a CSRS annuity is personal and that the wife of an
     individual with the right to file for an annuity generally lacks standing to file the
     application.       Oshiver    ex    rel.   Oshiver    v.   Office    of   Personnel
     Management, 896 F.2d 540, 541 (Fed. Cir. 1990).            The appellant made no
     argument supporting his assertion that 5 C.F.R. § 1201.35 provides for an appeal
     following the death of the individual with appeal rights, and the plain language of
     the regulation clearly provides for a contingency “[i]f an appellant dies.” In the
     present case, the appellant’s mother had not filed an appeal and thus was not an
     appellant whose death would permit a substitution of a proper party. PFR File,
     Tab 3 at 3. The appellant has failed to show error in the administrative judge’s
                                                                                         5

     analysis that the regulations do not permit a substitution of party prior to the
     filing of an appeal.
¶8         In his petition for review, the appellant asserts that he filed the claim on his
     own behalf and not on behalf of his mother’s estate. PFR File, Tab 3 at 2. The
     Board has jurisdiction to hear an appeal of a final OPM determination affecting
     an individual’s right or interests under the federal retirement laws.       5 C.F.R.
     § 1201.3(a)(2).   In the present case, OPM provided a final decision to the
     appellant denying survivor annuity benefits based on his father’s federal service,
     notifying him of his right to appeal the decision to the Board. IAF, Tab 1 at 5-6.
     Although the appellant’s pleadings before the administrative judge seemed to
     seek benefits on behalf of his mother’s estate, we note that the appellant also
     argued that authority exists for a payment of a deceased former spouse’s share of
     an annuity to one or more of the retiree’s children, IAF, Tab 18 at 4, and OPM
     decided in part that all benefits had been properly paid to the appellant and his
     sister upon his application, IAF, Tab 1 at 5-6, Tab 11 at 9, 11, 14, 17-19. We
     thus find Board jurisdiction over the appellant’s individual claims for benefits as
     asserted, despite agreeing with the administrative judge that the appellant lacks
     standing to file an appeal for survivor annuity benefits on behalf of his mother’s
     estate.   See ID at 4-5.   However, for the following reasons, we find that the
     appellant has not met his burden of proving entitlement to a survivor annuity or
     any other benefits.
¶9         The appellant has not made a nonfrivolous allegation that he is entitled to
     any survivor benefits associated with his father’s federal service. He has made no
     argument that he qualifies for a survivor annuity on his own account as the child
     of the employee under 5 U.S.C. § 8341(a)(4). As for the appellant’s assertions
     that he is entitled to the survivor annuity intended for his mother, he
     mischaracterizes OPM’s regulations, including those concerning the death of the
     former spouse receiving CSRS benefits. For instance, the appellant cites OPM’s
     regulation at 5 C.F.R. § 838.1012(b)(4), which states that OPM will honor a
                                                                                      6

      qualifying court order directing OPM to pay, after the death of the former spouse,
      the former spouse’s share of the employee annuity to one or more of the retiree’s
      children as defined by statute.    PFR File, Tab 3 at 4.       However, 5 C.F.R.
      § 838.1012(a) provides that “[u]nless the qualifying court order expressly
      provides otherwise, the former spouse’s share of employee retirement benefits
      terminates on the last day of the month before the death of the former spouse.”
      Thus, contrary to the appellant’s assertion, the regulations establish that the
      retirement benefits terminate with the death of the former spouse unless otherwise
      instructed by a qualifying court order. See PFR File, Tab 3 at 4. His citation
      to 5 U.S.C. § 8424(g) regarding unpaid accrued annuity benefits is irrelevant, as
      the statute concerns the Federal Employees’ Retirement System and the
      appellant’s father received benefits under CSRS. Id. at 3-4.    To the extent that
      the appellant sought to reference the order of precedence for a lump-sum payment
      under CSRS pursuant to 5 U.S.C. § 8342, we note that the record indicates that
      OPM paid a lump-sum to both the appellant and his sister in 1991, after their
      father’s death. See IAF, Tab 11 at 17-19.
¶10        We have considered the appellant’s other arguments and find that they
      pertain to whether his mother should have been entitled to a former spouse
      survivor annuity based on alleged errors by OPM. See, e.g., PFR File, Tab 3 at 3.
      He has not shown, and we are not aware of, any valid basis for concluding that
      any such errors affected any right or interest belonging to him individually under
      federal retirement law.

                        NOTICE TO THE APPELLANT REGARDING
                           YOUR FURTHER REVIEW RIGHTS
           The initial decision, as supplemented by this Final Order, constitutes the
      Board's final decision in this matter. 5 C.F.R. § 1201.113. You have the right to
      request the United States Court of Appeals for the Federal Circuit to review this
      final decision.   You must submit your request to the court at the following
      address:
                                                                                  7

                          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
                                                                           8

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.
