930 F. 2d 38 - Carreon v. Office of Personnel Management
930 F2d 38 Carreon v. Office of Personnel Management
930 F.2d 38
Maria F. CARREON, Petitioner,
v.
OFFICE OF PERSONNEL MANAGEMENT, Respondent.
No. 91-3011.
United States Court of Appeals, Federal Circuit.
March 13, 1991.
Unpublished Disposition
NOTICE: Federal Circuit Local Rule 47.8(b) states that opinions and orders which are designated as not citable as precedent shall not be employed or cited as precedent. This does not preclude assertion of issues of claim preclusion, issue preclusion, judicial estoppel, law of the case or the like based on a decision of the Court rendered in a nonprecedential opinion or order.
Before MICHEL, Circuit Judge, COWEN, Senior Circuit Judge, and RADER, Circuit Judge.
PER CURIAM.
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On reconsideration, the Office of Personnel Management (OPM), denied petitioner's application for a lump sum benefit under the Civil Service Retirement Act (CSRA). She appealed to the Merit Systems Protection Board (MSPB or Board), which upheld the determination of OPM (MSPB Docket No. SE08318910537). We affirm the decision of the MSPB.
OPINION
Petitioner's mother, Casimira P. Flores, was entitled to a monthly survivor annuity based upon the service of petitioner's father, Zacarias G. Flores, in the Civil Service Retirement System. Upon the death of her mother, petitioner sought a lump sum benefit from OPM for herself and for her children. The OPM determined that Mrs. Carreon was not entitled to a lump sum benefit, because the total annuities paid to the deceased annuitant and the survivor annuitant exceeded the lump sum credit paid into the fund by Zacarias G. Flores. The OPM also ruled that under the applicable regulations, survivor benefits terminate on the last day of the month before death, and that no benefits accrued after the death of Mrs. Carreon's mother. After petitioner's request for reconsideration was denied, she appealed to the MSPB. In an initial decision, the MSPB affirmed the holding of the OPM and correctly decided that Mrs. Carreon had failed to discharge the burden of showing entitlement to the lump sum benefit. See Cheeseman v. OPM, 791 F.2d 138, 140 (Fed.Cir.1986), cert. denied, 479 U.S. 1037 (1987).
The Board denied petitioner's request for review of the initial decision on the ground that it was untimely filed. In so doing, the Board followed the guidelines set forth in Alonso v. Department of the Air Force, 4 M.S.P.B. 262, 265 (1980), which have been approved by this court.
Twice in her applications to the Board for the review of its decision, Mrs. Carreon admitted that she knew that she and her children were not eligible for a lump sum benefit under the Civil Service Retirement laws. She frankly stated her only ground for seeking relief from the OPM was the fact that she was in dire financial circumstances, because her husband had been assassinated and left her as the sole supporter of five small children.
Unfortunately for Mrs. Carreon and her children, the OPM had no authority under the Civil Service Retirement laws to grant her a lump sum benefit or other relief solely on account of her financial condition.