D'Alonzo v. Office of Personnel Management , 451 F. App'x 945 ( 2011 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
__________________________
DOLORES J. D’ALONZO,
Petitioner,
v.
OFFICE OF PERSONNEL MANAGEMENT,
Respondent.
__________________________
2011-3169
__________________________
Petition for review of the Merit Systems Protection
Board in case no. NY0831100245-I-1.
___________________________
Decided: December 12, 2011
___________________________
DOLORES J. D’ALONZO, of Tarpon Springs, Florida, pro
se.
CARRIE A. DUNSMORE, Trial Attorney, Commercial
Litigation Branch, Civil Division, United States Depart-
ment of Justice, of Washington, DC, for respondent. With
her on the brief were TONY WEST, Assistant Attorney
General, JEANNE E. DAVIDSON, Director, and CLAUDIA M.
BURKE, Assistant Director.
__________________________
D'ALONZO v. OPM 2
Before LINN, PROST, and MOORE, Circuit Judges.
PER CURIAM.
Dolores J. D’Alonzo appeals from the decision of the
Merit Systems Protection Board (Board) denying her
lump sum death benefits. D’Alonzo v. Office of Pers.
Mgmt., No. NY-0831-10-0245-I-1, slip op. at 11 (M.S.P.B.
Nov. 2, 2010). For the reasons discussed below, we
affirm.
In April 1999, the Office of Personnel Management
(OPM) received an undated designation of beneficiary
form from Michael D’Alonzo, a former Federal employee.
Mr. D’Alonzo designated his daughter, Barbara Gerrish,
as the beneficiary entitled to 100% of his Civil Service
Retirement System (CSRS) benefits. The form also
indicated that Ms. Gerrish’s children would each receive
half of the benefits should she predecease Mr. D’Alonzo.
Petitioner, Mr. D’Alonzo’s other daughter, was not named
as a beneficiary. Mr. D’Alonzo died in October 1999. Ms.
D’Alonzo submitted an application to OPM for a lump
sum CSRS benefit. OPM denied Ms. D’Alonzo’s
application for death benefits because she was not named
on the designation of beneficiary form. OPM upheld its
decision on Ms. D’Alonzo’s motion for reconsideration.
On appeal to the Board, Ms. D’Alonzo argued that, at
the time of the designation of beneficiary, Mr. D’Alonzo
was not competent to make such an election because he
would have been too distraught by the death of his wife.
Ms. D’Alonzo also argued that her sister, Ms. Gerrish,
forged the designation of beneficiary form. Ms. D’Alonzo
argued that Ms. Gerrish had illegally transferred her
father’s property to herself before, and may have done the
same with regard to the lump sum death benefits.
3 D'ALONZO v. OPM
The Board held a telephonic hearing and the
administrative judge upheld OPM’s denial of Ms.
D’Alonzo’s application for benefits. The judge held that
Ms. D’Alonzo failed to prove by a preponderance of the
evidence that she is entitled to death benefits. The judge
noted that lump sum death benefits must be distributed
in the order of precedence set out in 5 U.S.C. § 8342(c),
and found that the form that designated Ms. Gerrish as
the beneficiary of Mr. D’Alonzo’s lump sum benefit was
valid. The judge rejected the argument that Mr. D’Alonzo
was not competent when he signed the form because Ms.
D’Alonzo did not provide any medical evidence showing
that her father lacked the requisite mental capacity at the
time. The judge also rejected the argument that Ms.
Gerrish had forged the form, and referred to proceedings
before the Supreme Court of the State of New York in
which Mr. D’Alonzo’s transfer of other property to Ms.
Gerrish was found to be legal.
Ms. D’Alonzo then filed a Petition for Review before
the Board. The Board found that the administrative
judge “considered the evidence as a whole, drew
appropriate inferences, and made reasoned conclusions on
issues of credibility,” and thus denied the petition.
D’Alonzo v. Office of Pers. Mgmt., No. NY-0831-10-0245-I-
1, slip op. at 2-3 (M.S.P.B. June 14, 2011). The Board
declined to consider additional evidence that Ms. D’Alonzo
submitted for the first time with her Petition. Id. Ms.
D’Alonzo now appeals the Board’s decision to our court.
We have jurisdiction under 28 U.S.C. § 1295(a)(9).
We must affirm the Board’s decision unless it is “(1)
arbitrary, capricious, an abuse of discretion, or otherwise
not in accordance with law; (2) obtained without
procedures required by law, rule, or regulation having
been followed; or (3) unsupported by substantial
evidence.” 5 U.S.C. § 7703(c). Whether the Board has
D'ALONZO v. OPM 4
jurisdiction to adjudicate an appeal is a question of law,
which we review de novo. Stoyanov v. Dep’t of the Navy,
474 F.3d 1377, 1379 (Fed. Cir. 2007).
Ms. D’Alonzo again argues that her sister, Ms.
Gerrish, forged Mr. D’Alonzo’s designation of beneficiary
form or exerted undue influence over her father that
caused him to designate Ms. Gerrish as his beneficiary.
She contends that Mr. D’Alonzo’s decision to remove Ms.
Gerrish as a beneficiary on other documents proves he
could not have intended to list her as a beneficiary on this
form. She submits new evidence that generally describes
the phenomenon of elder abuse, which she argues
supports her position. 1 Ms. D’Alonzo also argues that the
Board erred by failing to consider evidence she submitted
for the first time with her Petition for Review.
Ms. D’Alonzo offers no argument, however, that the
Board’s decision was arbitrary or unsupported by
substantial evidence. The Board considered Ms.
D’Alonzo’s arguments, including that Ms. Gerrish forged
her father’s designation of benefits form, and found them
to be unpersuasive. The Board applied the correct law
and considered the record evidence, including the
conclusions of the Supreme Court of New York, and held
that Ms. D’Alonzo failed to prove her entitlement to lump
sum death benefits. The Board properly declined to
consider the new material that Ms. D’Alonzo submitted
with her Petition for Review because she failed to show
that the materials were unavailable before the record was
closed. 5 C.F.R. § 1201.115(d)(1).
1 We decline to consider the materials discussing
elder abuse, which Ms. D’Alonzo submitted for the first
time in this court, but note that they are of a general
nature and contain no information specific to Mr.
D’Alonzo or this case.
5 D'ALONZO v. OPM
We have considered Ms. D’Alonzo’s arguments on
appeal and find them to be without merit. Because Ms.
D’Alonzo has not shown that the Board’s decision was
arbitrary, obtained without procedures required by law,
or unsupported by substantial evidence, we affirm.
AFFIRMED
COSTS
No costs.