Before Plager, Lourie, and Clevenger, Circuit Judges.
The opinion of the court was delivered by: Per Curiam
NOTE: Pursuant to Fed. Cir., R. 47.6, this Disposition is not citable as precedent. It is a public record. The Disposition will appear in tables published periodically.
Donna S. Muffick (Muffick) seeks review of the December 22, 1998, Merit Systems Protection Board (Board) final decision denying review of the Initial Decision of the Administrative Judge. Muffick v. Office of Personnel Management, No. DE-0831-98-0200-I-1 (June 1, 1998). The Administrative Judge affirmed the decision of the Office of Personnel Management (OPM) denying survivor annuity benefits to Muffick under the Civil Service Spouse Equity Act of 1984, Pub. L. No. 98-615, 98 Stat. 3195, as amended by Pub. L. No. 99-251, 100 Stat. 14 (1986), and Pub. L. No. 100-238, 101 Stat. 1744 (1988) (hereinafter "Spouse Equity Act"). We affirm.
Muffick and Richard J. Muffick, a federal employee, were married on July 23, 1953. The Mufficks had three children between 1955 and 1965. They divorced in April of 1972. Mr. Muffick retired from federal service in September 1982 and died shortly thereafter, on May 3, 1983. Neither Mrs. Muffick nor Mr. Muffick remarried after their divorce.
In approximately July 1983,*fn1 Muffick's daughter, Karen Lauridsen, contacted OPM to request an application for survivor's benefits on behalf of her mother. Ms. Lauridsen contends that she was advised by an OPM official that Muffick was not eligible for survivor benefits at that time, because she had not yet reached retirement age.
On August 11, 1997, shortly after reaching age 65, Muffick filed a written application with OPM for a former spouse annuity benefit under the Spouse Equity Act. OPM held, initially and on reconsideration, that Muffick was not eligible for survivor benefits under the Spouse Equity Act because she had not filed her application on or before the statutory deadline of May 7, 1989. See 5 U.S.C. § 8341 note (1988).
On appeal to the Board, Muffick argued that OPM was estopped from denying her application for survivor benefits. Muffick's estoppel theory was based on the assertion that OPM breached its statutory duty to provide, accept, and process all claims for benefits, when it gave Ms. Lauridsen incorrect information regarding her mother's eligibility for survivor benefits. However, the Administrative Judge held that any misinformation Muffick received from an employee of OPM did not estop OPM from denying her request for benefits.
We have jurisdiction over this appeal pursuant to 5 U.S.C. § 7703(a) (1994).
The scope of our review of a decision of the Board is limited. We must affirm the decision unless we find it to be "(1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the 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) (1994); Cheeseman v. Office of Personnel Management, 791 F.2d 138, 140 (Fed. Cir. 1986).
Muffick does not deny that she failed to file her application for survivor benefits before the statutory deadline of May 7, 1989. Instead, she asserts that OPM is estopped from denying her claim because the agency allegedly breached its statutory duty to provide her with correct information regarding her benefit eligibility.
OPM has no authority to grant benefits to persons whom Congress has not deemed eligible. Office of Personnel Management v. Richmond, 496 U.S. 414 (1990). Thus, regardless of whether OPM breached a duty to Muffick, it nevertheless has no authority to grant benefits to her if she does not meet the statutory requirements of 5 U.S.C. § 8341 note (1988). Therefore, the only way Muffick can prevail in her claim is if the filing deadline in the Spouse Equity Act can be equitably tolled.
In Iacono v. Office of Personnel Management, 974 F.2d 1326 (Fed. Cir. 1992), this court ruled that the filing deadline in the Spouse Equity Act was not subject to equitable tolling. The appellant in Iacono argued that the filing deadline should be waived because she was unaware of the deadline and suffered from a mental disability. However, because we determined that the filing deadline operates as a cutoff for a specific class of potential applicants, rather than as a statute of limitations, we held that "the filing deadline in the Spouse Equity Act is not a period ...