Sylvia A. Kapen v. Office of Personnel Management

NOTE: Pursuant to Fed. Cir. R. 47.6, this disposition
is not citable as precedent. It is a public record.
United States Court of Appeals for the Federal Circuit
05-3200
SYLVIA A. KAPEN,
Petitioner,
v.
OFFICE OF PERSONNEL MANAGEMENT,
Respondent.
_________________________
DECIDED: January 12, 2006
_________________________
Before MICHEL, Chief Judge, SCHALL, and GAJARSA, Circuit Judges.
PER CURIAM
DECISION
Sylvia A. Kapen petitions for review of the final decision of the Merit Systems
Protection Board (“Board”) that sustained the remand decision of the Office of
Personnel Management (“OPM”) denying her application on behalf of her son Lorin
Kapen for survivor annuity benefits under the Civil Service Retirement System (“CSRS”)

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as an adult disabled child. Kapen v. Office of Pers. Mgmt., No. NY-0831-04-0326-I-1
(M.S.P.B. May 4, 2005). We affirm.
DISCUSSION
I.
Under the CSRS, the “unmarried dependent child” of a deceased federal
employee is entitled to a survivor annuity, regardless of age, if he or she “is incapable of
self-support because of mental or physical disability incurred before age 18.” 5 U.S.C.
§ 8341(a)(4), (e). Ms. Kapen is the widow of Jack Kapen, a deceased former employee
of the United States Postal Service. In January of 2000, Ms. Kapen applied to OPM on
behalf of her son Lorin for survivor annuity benefits under the statute, claiming that Lorin
was an adult dependent child. In July of 2000, OPM denied the application; it then
denied reconsideration in November of 2000. Ms. Kapen appealed to the Board. The
reconsideration decision was affirmed in an initial decision in November of 2001, and in
October of 2002, the Board denied Ms. Kapen’s petition for review.
Ms. Kapen petitioned this court for review. On May 12, 2003, we vacated the
Board’s decision and remanded the case for further proceedings. Kapen v. Office of
Pers. Mgmt., No. 03-3076, 74 Fed. Appx. 50 (Fed. Cir. 2003) (per curiam) (“Kapen I”).
We did so after holding that the Board had erred in not reopening the appeal to consider
the February 28, 2001 decision of the Veteran’s Administration (“VA”) approving Ms.
Kapen’s application for dependent child survivor benefits for Lorin, as well as the
evidence underlying that decision.
Following our decision, the Board remanded the case to OPM for further
proceedings. Thereafter, on July 22, 2004, OPM once again determined that Lorin was
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not entitled to survivor annuity benefits as an adult dependent child. In its decision,
OPM stated that it had considered the decision of the VA, as well as the evidence that
formed the basis for that decision.
Ms. Kapen again appealed to the Board. On November 24, 2004, the
administrative judge (“AJ”) to whom the appeal was assigned issued an initial decision
sustaining OPM’s remand decision. Kapen v. Office of Pers. Mgmt., No. NY-0831-04-
0326-I-1 (M.S.P.B. Nov. 24, 2004). The AJ’s initial decision became the final decision
of the Board on May 4, 2005, after the Board denied Ms. Kapen’s petition for review for
failure to meet the criteria for review set forth at 5 C.F.R. § 1201.115(d). This appeal
followed. We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(9).
II.
Pursuant to 5 U.S.C. § 8347(c), OPM is charged with making disability
determinations such as the one at issue in this case. Section 8347(c) provides in
relevant part that, except for an appeal to the Board, see 5 U.S.C. § 8347(d)(1) (2000),
such determinations by OPM “are final and conclusive and are not subject to review.”
Under this statutory scheme, the Board’s factual findings with respect to Lorin’s
disability claim are not subject to our review. We may only review whether there has
been a “substantial departure from important procedural rights, a misconstruction of the
governing legislation, or some like error going to the heart of the administrative
determination.” Anthony v. Office of Pers. Mgmt., 58 F.3d 620, 626 (Fed. Cir. 1995)
(internal quotation marks omitted) (quoting Lindahl v. Office of Pers. Mgmt., 470 U.S.
768, 791 (1995)).
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Ms. Kapen contends that, in view of the evidence that was presented, the Board
failed to properly assess the seriousness of her son’s disability. Lindahl and Anthony
make clear that this is precisely the sort of claim that we may not consider. Ms. Kapen
does, however, raise two arguments that we may consider. It is to those arguments that
we now turn.
III.
First, before the Board, Ms. Kapen had the burden of proving that her son Lorin
was entitled to survivor annuity benefits by a preponderance of the evidence. 5 C.F.R.
§ 1201.56(a)(2) (2005). On appeal, although it is not entirely clear, Ms. Kapen seems to
argue that the AJ misapplied the preponderance of the evidence standard. Her
contention appears to be that when she introduced some relevant evidence that a
reasonable person could have found supported her son’s claim, the burden shifted to
OPM to show that there was sufficient evidence to support rejection of the claim. Ms.
Kapen’s argument reflects a misunderstanding of the preponderance of the evidence
standard. Preponderant evidence is defined as the “degree of relevant evidence that a
reasonable person, considering the record as a whole, would accept as sufficient to find
that a contested fact is more likely to be true than untrue.” 5 C.F.R. § 1201.56(c)(2)
(emphasis added). We agree with the government that the “definition does not create a
presumption whereby the submission of any evidence supporting eligibility [for benefits]
shifts the burden to establish that contrary evidence is sufficient to prove that the
applicant is not eligible to receive benefits.” Respondent’s Brief at 28 (emphasis in
original). Under the preponderance of the evidence standard, the evidence as a whole
must be considered—not just the evidence that supports the applicant’s claim. We
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have reviewed the AJ’s decision and have found no indication that he misapplied the
preponderance of the evidence standard.
Second, Ms. Kapen argues that the Board failed to adhere to our decision in
Kapen I. According to Ms. Kapen, on remand the Board was required to follow our
decision and “grant [a] survivor annuity and benefits to Lorin Kapen.” Petitioner’s Brief
at 2, response to Question 6. Ms. Kapen is mistaken. In Kapen I, we did not direct the
award of an annuity and benefits to Lorin. Rather, we directed that Lorin’s claim be
reconsidered in light of the VA’s decision and the evidence underlying that decision.
We have reviewed the record before us and are satisfied that both OPM and the Board
followed our instructions in Kapen I.
For the foregoing reasons, the decision of the Board sustaining OPM’s remand
decision is affirmed.
Each party shall bear its own costs.
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