Doris K. Jones v. Office of Personnel Management

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

DORIS K. JONES, DOCKET NUMBER

Appellant, CH-0831-14-0566-I-1

v.

OFFICE OF PERSONNEL DATE: May 14, 2015

MANAGEMENT,

Agency.

THIS FINAL ORDER IS NO NPRECEDENTIAL 1

Doris K. Jones, Elyria, Ohio, pro se.

Roxann Johnson, Washington, D.C., for the agency.

BEFORE

Susan Tsui Grundmann, Chairman

Mark A. Robbins, Member

FINAL ORDER

¶1 The appellant has filed a petition for review of the initial decision, which

affirmed the Office of Personnel Management’s (OPM’s) reconsideration decision

that denied her request for a survivor annuity. Generally, we grant petitions such

as this one only when: the initial decision contains erroneous findings of material

1

A nonprecedential order is one that the Board has determined does not add

sign ificantly 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 Parties may cite nonprecedential orders,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).

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fact; the initial decision is based on an erroneous interpretation of statute or

regulation or the erroneous application of the law to the facts of the case; the

judge’s rulings during either the course of the appeal or the initial decision were

not consistent with required procedures or involved an abuse of discretion, and

the resulting error affected the outcome of the case; or new and material evidence

or legal argument is available that, despite the petitioner’s due diligence, was not

available when the record closed. See Title 5 of the Code of Federal Regulations,

section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this

appeal, and based on the following points and authorities, we conclude that the

petitioner has not established any basis under section 1201.115 for granting the

petition for review. Therefore, we DENY the petition for review and AFFIRM

the initial decision, which is now the Board’s final decision. 5 C.F.R.

§ 1201.113(b).

¶2 The appellant filed an appeal from OPM’s reconsideration decision denying

her request for a survivor annuity as the former spouse of William Jones. Initial

Appeal File (IAF), Tab 1. The appellant and Mr. Jones were married in 1991.

IAF, Tab 6 at 52. He retired on June 30, 2004, at which time he elected a

survivor annuity for the appellant. Id. at 52-53. Although the appellant and

Mr. Jones divorced on May 27, 2005, he did not notify OPM of the divorce and

he continued to receive a reduced annuity until his death on September 4, 2013,

108 months later. Id. at 15, 24-39. OPM denied the appellant’s application on

October 30, 2013. Id. at 17. On reconsideration, OPM reversed its initial

decision and determined on April 15, 2014, that she was eligible for a survivor

annuity. Id. at 11. OPM subsequently rescinded its April 15 determination and

affirmed its initial decision on May 6, 2014. Id. at 6. OPM denied the

appellant’s application on the basis that the divorce decree did not provide for the

former spouse annuity, and because Mr. Jones did not elect to provide for an

annuity within 2 years of the divorce. Id. at 6-10.

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¶3 After holding a hearing, the administrative judge affirmed OPM’s

reconsideration decision, finding that the appellant and Mr. Jones divorced on

May 27, 2005, that the court decree did not provide for a former spouse annuity,

and that there is no court order or court-approved property settlement that

provides for such an annuity. IAF, Tab 14, Initial Decision (ID) at 5. The

administrative judge found further that Mr. Jones received OPM’s annual notices

in December 2005, and December 2006, which were fully compliant with

statutory requirements to advise him that he had to make a new election to

provide a survivor annuity for a former spouse, but that he failed to elect a

survivor annuity for the appellant. ID at 3-7. To the extent the appellant argued

that there is no evidence that Mr. Jones received the notices, the administrative

judge found that OPM’s affidavit stating that notices were sent to all annuitants,

along with copies of the 2005 and 2006 notices, was sufficient to meet OPM’s

burden of showing that Mr. Jones was on notice and that the appellant did not

meet her burden of showing that he did not receive them. Accordingly, the

administrative judge found that the appellant had not met her burden of proving

her eligibility for the survivor annuity benefit she sought. ID at 8.

¶4 The burden of proving entitlement to a survivor annuity is on the applicant

for benefits. Cheeseman v. Office of Personnel Management, 791 F.2d 138,

140-41 (Fed. Cir. 1986). A divorce terminates a prior election of spousal

survivor benefits. 5 U.S.C. § 8339(j)(5)(A). A former spouse of an annuitant is

entitled to a survivor annuity if and to the extent expressly provided for in an

election under 5 U.S.C. § 8339(j)(3) or in the terms of any decree or divorce or

annulment or any court order or court-approved property settlement incident to

such decree, as specified in 5 U.S.C. § 8341(h)(1). The election under 5 U.S.C.

§ 8339(j)(3) shall be made at the time of retirement or, if later, within 2 years

after the date on which the marriage of the former spouse is dissolved. 5 C.F.R.

§ 831.632. Under 5 U.S.C. § 8339(j) and (k)(2), OPM is required by statute to

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notify annuitants annually of their survivor annuity election rights. Brush v.

Office of Personnel Management, 982 F.2d 1554, 1559-60 (Fed. Cir. 1992).

¶5 On review, the appellant asserts that there are factual discrepancies in the

initial decision which may have caused the administrative judge to reach the

wrong result. Petition for Review (PFR) File, Tab 1. For instance, she argues

that, while the “divorce decree makes no mention of an annuity,” the divorce

decree also does not state that there was no annuity. The appellant asserts that,

because Mr. Jones had elected a survivor annuity prior to his retirement, he felt

no need to mention the annuity in the decree. Id. However, where a divorce

decree does not explicitly provide for a survivor annuity, as is the case here, the

former spouse would have had to make a timely election under 5 U.S.C.

§ 8339(j)(3), which Mr. Jones did not do. The appellant also asserts that the

administrative judge erred in stating that she testified during the hearing that her

former spouse handled his mail with his sister, when she actually stated that his

sister handled his mail after his death, not while he still was living. PFR File,

Tab 1. The administrative judge stated in the initial decision that “Ms. Jones

testified that Mr. Jones and his sister handled his mail, so she was not privy to

whether he received the annual notices.” ID at 6. This statement does not

specify, as asserted, whether Mr. Jones’ sister handled his mail before or after his

death. Moreover, even if the administrative judge’s statement is incorrect,

because the appellant has not shown how this may have caused the administrative

judge to reach the wrong result, it provides no basis for reversal of the initial

decision.

¶6 The appellant also raises numerous challenges to OPM’s evidence that it

mailed annual notices to Mr. Jones in December 2004, and December 2005. PFR

File, Tab 1. Public Law 95-317, 92 Stat. 382 (1978), requires OPM to send out

general notices warning annuitants of the survivor annuity benefits elections

available to them under 5 U.S.C. §§ 8339(j), 8339(k)(2) and 8339(o) at least once

every 12 consecutive months. See 5 C.F.R. § 831.681. This statutory deadline

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can be waived, however, if the annuitant did not receive the annual notice that

OPM was required to send annuitants about the right to make an election.

Schoemakers v. Office of Personnel Management, 73 M.S.P.R. 335, 38 (1997),

aff’d, 180 F.3d 1377 (Fed. Cir. 1999). OPM bears the burden of proving that the

notices actually were sent and must offer proof as to the mailing and the actual

content of the notice. Brush, 982 F.2d at 1561. A bare allegation that the notices

were mailed is not sufficient. However, once OPM establishes through credible

evidence that it is more probable than not that the annual notice was sent, the

burden of proof shifts to the appellant to prove that the annual notice never was

received. Id.

¶7 OPM has submitted the affidavit of an individual, who administers the

contract for printing and distribution of forms and notices for the Retirement and

Insurance Service of OPM, and a copy of the notices sent to the annuitants in

2004 and 2005. IAF, Tab 6 at 40-51. In this affidavit, the OPM employee states

that general notices about the survivor benefit elections were sent to all

annuitants in December 2005, and December 2006. Id. The mailing list for the

notices was generated from OPM’s computer master annuity roll. A computer

tape listing all annuitants and their correspondence addresses is created and

maintained by the Center for Information Services, Benefits Systems Group

(BSG). BSG then generates a computer tape, which is sent to a private contract

firm specializing in mass mailing, which then generates mailing labels for the

notices and sends notices to every annuitant on the tape. Id. The U.S. Court of

Appeals for the Federal Circuit and the Board have held that an affidavit by an

OPM official familiar with the history of OPM notices stating that OPM general

annual notices of elections, including the election rights at issue in this appeal,

were sent to all annuitants at the relevant times constitutes probative evidence

that, if unrebutted, proves that OPM provided the required notices. See Darsigny

v. Office of Personnel Management, 787 F.2d 1555, 1559 (Fed. Cir. 1986); see

also Alton v. Office of Personnel Management, 40 M.S.P.R. 292, 294-95 (1989).

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Thus, the OPM employee’s affidavit and the copy of the annual notices he

referred to provide the probative evidence that OPM sent Mr. Jones the required

notices in December 2005, and December 2006, after he and the appellant had

divorced. The burden of proof thus shifts to the appellant to prove that her

former husband did not receive notice of the requirements for an election to

receive a reduced annuity.

¶8 Here, the appellant does not provide any evidence that Mr. Jones did not

receive the notices. Rather, she challenges OPM’s mailing procedures and

evidence and asserts that Mr. Jones must not have received the notices because he

intended that she was to receive a former spouse survivor annuity. As stated

above, however, the Board and the court have found OPM’s affidavit and

evidence sufficient to establish a proper mailing. Darsigny, 787 F.2d at 1559;

Alton, 40 M.S.P.R. at 294-95. Further, Mr. Jones’ mailing address apparently

remained the same from when he retired until his death in 2013, and the appellant

has not alleged that her deceased former husband was having difficulty receiving

his annuity checks or any other mail from OPM at that address. IAF, Tabs 1, 9,

11.

¶9 The appellant also contends that, because her former spouse continued to

receive a reduced annuity following their divorce and because his annuity

adjustments as late as January 2013, continued to indicate that his monthly

survivor annuity was payable to her, see IAF, Tab 1 at 8, he may have believed

that he did not need to take any further action to provide a former spouse annuity,

PFR File, Tab 1. Although Mr. Jones may have believed that the reduction in his

annuity established a survivor annuity for the appellant, the reduction was the

result of his failure to notify OPM that they had divorced, as was required by

5 U.S.C. § 8339(j)(3). 2 Thus, even though Mr. Jones erroneously continued to

2

OPM has acknowledged that any erroneous reduction of Mr. Jones’ annuity constitutes

accrued annuity that will be paid under the order of precedence since no survivor

annuity is payable. IAF, Tab 12 at 5; see 5 U.S.C. § 8342.

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receive a reduced annuity, this does not provide a basis upon which to waive the

election requirement.

¶10 Although the appellant’s case is sympathetic, we agree with the

administrative judge that she has cited no law, rule, or regulation that permits a

waiver of the election requirement. Accordingly, because the appellant has not

met the statutory requirements for a former spouse survivor annuity, the

administrative judge correctly affirmed OPM’s reconsideration decision. See

Office of Personnel Management v. Richmond, 496 U.S. 414, 416, 434 (1990) (the

Board cannot order payment of retirement benefits when the statutory conditions

for such benefits have not been met).

NOTICE TO THE APPELLANT REGARDING

YOUR FURTHER REVIEW RIGHTS

You have the right to request review of this final decision by the United

States Court of Appeals for the Federal Circuit. You must submit your request to

the court at the following address:

United States Court of Appeals

for the Federal Circuit

717 Madison Place, N.W.

Washington, DC 20439

The court must receive your request for review no later than 60 calendar

days after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec.

27, 2012). If you choose to file, be very careful to file on time. The court has

held that normally it does not have the authority to waive this statutory deadline

and that filings that do not comply with the deadline must be dismissed. See

Pinat v. Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).

If you need further information about your right to appeal this decision to

court, you should refer to the federal law that gives you this right. It is found in

Title 5 of the United States Code, section 7703 (5 U.S.C. § 7703) (as rev. eff.

Dec. 27, 2012). You may read this law as well as other sections of the United

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States Code, at our website, http://www.mspb.gov/appeals/uscode.htm.

Additional information is available at the court's website, www.cafc.uscourts.gov.

Of particular relevance is the court's "Guide for Pro Se Petitioners and

Appellants," which is contained within the court's Rules of Practice, and Forms 5,

6, and 11.

If you are interested in securing pro bono representation for an appeal to the

United States Court of Appeals for the Federal Circuit, you may visit our website

at http://www.mspb.gov/probono for information regarding pro bono

representation for Merit Systems Protection Board appellants before the Federal

Circuit. The Merit Systems Protection Board neither endorses the services

provided by any attorney nor warrants that any attorney will accept representation

in a given case.

FOR THE BOARD: ______________________________

William D. Spencer

Clerk of the Board

Washington, D.C.