John Doe v. Office of Personnel Management

Merit Systems Protection Board·Decided June 12, 2024·No. CH-0843-22-0245-I-1·Unpublished

Opinion

UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD

JOHN DOE 1 , DOCKET NUMBER Appellant, CH-0843-22-0245-I-1

v.

OFFICE OF PERSONNEL DATE: June 12, 2024 MANAGEMENT, Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 2

Algis Sirvaitis , Esquire, Willoughby, Ohio, for the estate of Dan M. Krysty.

Tanisha Elliott Evans , Washington, D.C., for the agency.

BEFORE

Cathy A. Harris, Chairman Raymond A. Limon, Vice Chairman Henry J. Kerner, Member*

*Member Kerner did not participate in the adjudication of this appeal.

1 For the reasons explained below regarding the circumstances under which this appeal was filed and docketed, the Board finds it appropriate to caption this appeal as “John Doe.” Additionally, the initial decision in this matter has been recaptioned as “John Doe,” and a reference to the appellant’s name in the initial decision has been changed to “John Doe.” 2 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions.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

FINAL ORDER

Algis Sirvaitis, Esquire, executor of the estate of Dan M. Krysty, a former annuitant under the Federal Employees’ Retirement System (FERS), has filed a petition for review of the initial decision, which dismissed his appeal of the agency’s final decision denying him lump sum death benefits for failure to prosecute and as untimely filed without good cause shown. For the reasons set forth below, we DISMISS the petition for review, VACATE the initial decision, and DISMISS the appeal.

BACKGROUND Dan M. Krysty was an annuitant under FERS at the time of his death. Mr. Sirvaitis had been his court-appointed guardian for many years and, upon Mr. Krysty’s death, was appointed as the executor of his estate. Initial Appeal File (IAF), Tab 1 at 1, 10. In that capacity, he applied for FERS lump sum death benefits on behalf of Mr. Krysty’s daughter. Id. at 5. The Office of Personnel Management denied the application, finding that Mr. Sirvaitis was not the designated beneficiary of Mr. Krysty’s death benefits and that he was not otherwise entitled to the benefits. Id. at 8-9. The instant Board appeal followed. In a June 27, 2022 initial decision, the administrative judge dismissed the appeal for failure to prosecute and as untimely filed without good cause shown. IAF, Tab 9, Initial Decision at 1, 3-4. On August 24, 2022, Mr. Sirvaitis filed an untimely petition for review, arguing, among other things, that, although he filed the application for death benefits on behalf of the decedent’s daughter, he did not know where she was, had been unable to locate her, and that “the application filed by [him] should have been considered without burdening the estate and depriving [Mr. Krysty’s heir]” of benefits. Petition for Review (PFR) File, Tab 1 at 1-2, Tab 5 at 1. The agency responded in opposition to the petition for review, asserting that the petition does not meet the criteria for review. PFR File, Tab 4 at 4. 3

On May 22, 2023, the Board issued an order directing the appellant and/or Mr. Sirvaitis to submit evidence and/or argument establishing that he was the designated representative of the appellant. PFR File, Tab 7 at 2. The order allowed the agency to reply to any submissions. The order also instructed that if the appellant and/or Mr. Sirvaitis did not provide the aforementioned evidence and/or argument, both parties should address whether the appeal should have been dismissed by the administrative judge because Mr. Sirvaitis lacked the proper authority to act for the appellant. Id. at 2-3. Neither the appellant, nor Mr. Sirvaitis, nor the agency responded to the order.

ANALYSIS The Board’s regulations provide that only an appellant, her designated representative, or a party properly substituted under 5 C.F.R. § 1201.35 3 may file an appeal. 5 C.F.R. § 1201.24(a). All appeals must contain the signature of the appellant or, if the appellant has a representative, of the representative. 5 C.F.R. § 1201.24(a)(9). Similarly, the regulations provide that a petition for review must contain the signature of the party or their representative. 5 C.F.R. § 1201.114(c). Although Mr. Sirvaitis signed the initial Board appeal, IAF, Tab 1 at 1, nothing in the record below shows that the appellant designated him to act on her behalf. The designation of representative form submitted with the initial appeal is signed by Mr. Sirvaitis, but not by the appellant. Id. at 8. Similarly, the petition for review is signed by Mr. Sirvaitis, but not the appellant. PFR File, Tab 1. As noted above, despite the Board’s order seeking a designation of representative, neither the appellant nor Mr. Sirvaitis responded. When a petition for review is not signed by the appellant or her designated representative, the Board has dismissed the petition for review. E.g., Schaberg v. 3 The regulation regarding substitution has no application here. It addresses the situation when an appellant dies or is otherwise unable to pursue an appeal, and another individual is allowed to continue the appeal. 5 C.F.R. § 1201.35. Here, while Mr. Krysty has died, Mr. Sirvaitis purportedly filed the appeal on behalf of Mr. Krysty’s living daughter. 4

U.S. Postal Service, 104 M.S.P.R. 621, ¶¶ 6-7 (2007); Staines v. U.S. Postal Service, 65 M.S.P.R. 84, 85 (1994). As those are the facts here, consistent with the above decisions, we dismiss the petition for review. Similarly, because Mr. Sirvaitis was not the appellant’s designated representative below, the appeal should not have been docketed or, having been docketed, the administrative judge should have dismissed the appeal. See 5 C.F.R. § 1201.24(a); see also Visconti v. Environmental Protection Agency, 78 M.S.P.R. 17, 21 (1998) (finding that an administrative judge should not have dismissed an appeal without prejudice based on the request of an individual who had not been designated as the appellant’s representative). Accordingly, we dismiss the appeal and the petition for review. This is the final decision of the Merit Systems Protection Board.

NOTICE OF APPEAL RIGHTS 4 You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction.

Free access — add to your briefcase to read the full text and ask questions with AI

John Doe v. Office of Personnel Management, (Miss. 2024).

John Doe v. Office of Personnel Management (John Doe v. Office of Personnel Management) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Related

Perry v. Merit Systems Protection Bd.
582 U.S. 420 (Supreme Court, 2017)