The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
LEE J. STILLWELL, SR., DOCKET NUMBER
Appellant, AT-0843-15-0122-I-1
v.
OFFICE OF PERSONNEL DATE: September 22, 2015
MANAGEMENT,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Sara McDonough, Esquire, Washington, D.C., for the appellant.
Christopher H. Ziebarth, 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 reconsideration decision of the Office of Personnel Management
(OPM) finding him ineligible to elect a survivor annuity for his current spouse
under the Civil Service Retirement System (CSRS). Generally, we grant petitions
1
A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
such as this one only when: the initial decision contains erroneous findings of
material 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. We MODIFY
the initial decision, insofar as the administrative judge failed to address the
appellant’s argument that OPM provided him with misleading information
regarding his election rights. Except as expressly modified by this Final Order,
we AFFIRM the initial decision.
¶2 On July 21, 2002, the appellant completed an application for deferred
retirement under CSRS, electing to receive a reduced annuity with a survivor
annuity for his then-wife. Initial Appeal File (IAF), Tab 10 at 28-29. His
retirement became effective in August 2002. See id. at 25, 27. His then-wife
died on May 20, 2007. Id. at 21. He married his current wife on August 15,
2011. Id. at 22.
¶3 On February 4, 2014, the appellant mailed a request to OPM to elect a
survivor annuity for his current wife. Id. at 20. OPM denied the request on
June 17, 2014, finding that he failed to timely elect survivor annuity benefits for
his new wife within 2 years of their marriage, as required by law. Id. at 16. The
appellant requested reconsideration and, on September 26, 2014, OPM affirmed
its initial decision. Id. at 6-7.
3
¶4 In its reconsideration decision, and again on October 29, 2014, OPM
informed the appellant that it would adjust his annuity, retroactive to the first
month following the death of his former wife. Id. at 7, 17. It subsequently issued
him a refund for the period from June 1, 2007, through October 30, 2014, because
he had been underpaid during the period when his annuity was erroneously being
reduced to provide a survivor annuity for his deceased wife. Id. at 17-19.
¶5 The appellant filed an appeal with the Board regarding OPM’s
reconsideration decision. IAF, Tab 1. He argued that OPM did not adequately
inform him of the requirements for electing a survivor annuity upon remarriage
after retirement and that, in any event, his election was timely filed. IAF, Tabs 1,
24. He requested a hearing, but subsequently withdrew that request. IAF, Tab 1
at 2, Tab 18.
¶6 The administrative judge issued an initial decision based on the written
record. IAF, Tab 25, Initial Decision (ID). He affirmed OPM’s reconsideration
decision, finding that OPM’s annual notice sufficiently apprised the appellant of
the requirements for electing a survivor annuity for his current wife. ID.
¶7 The appellant has filed a petition for review. Petition for Review (PFR)
File, Tab 1. He argues that: (1) his deceased wife remained entitled to the
survivor annuity until October 2014 and, as such, his request was timely filed less
than 2 years after her entitlement ended; 2 (2) OPM’s notice of how to make a new
survivor annuity election was inadequate; and (3) even if the Board finds that his
election was untimely, the Board should waive the filing deadline. Id. OPM filed
2
The administrative judge stated in the initial decision that the appellant did not argue
that he timely elected the survivor annuity. ID at 2, 5. This is incorrect. In his initial
appeal, the appellant asserted that he “is still within the statutory period for filing an
election” and that “the two years after the date a former spouse loses entitlement has
not yet begun in [his] case.” IAF, Tab 1 at 8. We discern no harm in the administrative
judge’s misstatement because, as explained herein, we have considered this argument
and find it to be without merit. See Panter v. Department of the Air Force,
22 M.S.P.R. 281, 282 (1984) (finding that an adjudicatory error that is not prejudicial to
a party’s substantive rights provides no basis for reversal of an initial decision).
4
a pro forma response in opposition, to which the appellant did not reply. PFR
File, Tab 4.
The appellant failed to timely elect a survivor annuity for his current wife.
¶8 Upon remarriage, an annuitant who was married at the time of retirement
and subsequently remarries may elect within 2 years following his remarriage to
receive a reduced retirement annuity so as to provide for a survivor annuity for
his current spouse. 5 U.S.C. § 8339(j)(5)(C)(i); see Duzon v. Office of Personnel
Management, 101 M.S.P.R. 430, ¶ 7 (2006).
¶9 The appellant argues that his deceased wife remained entitled to the
survivor annuity, regardless of the fact that his election terminated upon her
death, until on or around October 29, 2014, when OPM notified him of his refund.
PFR File, Tab 1 at 6-7. Therefore, he contends, his February 2014 election
request was timely filed within 2 years of the end of his deceased wife’s
entitlement. Id. He bases this argument on the fact that in OPM’s June 17, 2014
initial decision denying his request to elect a survivor annuity for his current
wife, OPM stated that it “ha[d] not made the adjustment to remove [his deceased
wife] from his annuity” and instructed him to advise OPM if he “would like to
make that adjustment.” Id.; see IAF, Tab 10 at 16.
¶10 This argument has no merit. The law is clear that the appellant’s election of
a survivor annuity terminated upon the death of his former wife and that, to
provide a survivor annuity for his current wife, he was required to make the
election within 2 years of his remarriage. 5 U.S.C. § 8339(j)(5)(A)(i); see
Williams v. Office of Personnel Management, 105 M.S.P.R. 29, ¶ 6 (2007).
OPM’s apparently erroneous action of continuing the deductions from the
appellant’s annuity to fund a survivor annuity following the death of the
appellant’s previous wife, as documented in the June 17, 2014 letter, did not alter
this requirement. See Calkins v. Office of Personnel
Management, 116 M.S.P.R. 130, ¶ 9 (2011) (addressing the fact that the payment
of a retirement benefit may not be made in direct contravention of CSRS).
5
Indeed, OPM later recognized and corrected its error, refunding the improperly
deducted amount to the appellant. We therefore find that the appellant did not
timely elect a survivor annuity for his current spouse because he failed to do so
within 2 years of their marriage.
OPM properly notified the appellant of the specific requirements for electing a
survivor annuity.
¶11 Under Public Law No. 95-317 (codified at 5 U.S.C. § 8339 note), OPM is
required by statute to notify annuitants annually of their survivor annuity election
rights under 5 U.S.C. § 8339(j) and (k)(2). Cartsounis v. Office of Personnel
Management, 91 M.S.P.R. 502, ¶ 5 (2002). This statutory obligation is not
satisfied simply by providing accurate annual notices. Nixon v. Office of
Personnel Management, 452 F.3d 1361, 1365-67 (Fed. Cir. 2006). Rather, OPM
is statutorily obligated to provide straight forward, full and accurate information
regarding election rights in all of its communications to the employee or former
employee, so that statutorily-required notice is not diluted or contradicted. See
id.; Wood v. Office of Personnel Management, 241 F.3d 1364, 1367 (Fed. Cir.
2001).
¶12 If OPM fails to provide such notice, it cannot deny an annuity even if
formal election has not been made during the applicable time period, so long as
there is some evidence that the employee wished to elect a survivor annuity. See
Wood, 241 F.3d at 1366. For instance, in Wood, the annuitant sent a letter to
OPM, prior to his divorce, requesting information regarding how to continue his
spouse’s survivor annuity once the divorce was finalized. Id. at 1365. OPM
informed him that he could voluntarily elect to provide survivor coverage for an
ex-spouse and that he should notify OPM if his marriage were ever terminated,
but did not provide any further information. Id. at 1365-66. Wood did not notify
OPM of his divorce but, after he divorced and within the 2-year election period,
he received a notice from OPM informing him of the requirement to elect a
survivor annuity within 2 years of his divorce and that he would receive a reduced
6
annuity if he so elected. Id. at 1366. Wood never made an election after his
divorce, but continued to receive a reduced annuity until his death. Id.
¶13 The U.S. Court of Appeals for the Federal Circuit found that,
notwithstanding Wood’s failure to make an election following his divorce, his
ex-wife was entitled to a survivor annuity because OPM did not provide Wood
with adequate notice of his election rights and Wood had manifested an intention
to provide her with one. Id. at 1367-68. In particular, the court noted that OPM’s
failure to mention, in response to Wood’s inquiry letter, that he was required to
make an election after his divorce became final could have caused him to believe
that his letter was sufficient to constitute an election, particularly given that he
continued to receive a reduced annuity. Id. at 1367. Although the annual notice
Wood received following his divorce, standing alone, was adequate, it was
insufficient to put him on notice of the election requirements because it was
“hardly a model of clarity, and did little to correct the earlier confusion” created
by OPM’s incomplete response to his inquiry letter. Id.
¶14 Here, the appellant asserted below, and reiterates on review, that he
contacted OPM in or around April 2011 to inquire about electing a survivor
annuity for his then-fiancée upon their marriage and an OPM representative
informed him that she would not become eligible to be his survivor annuity
beneficiary until 9 months after their marriage, see 5 U.S.C. § 8339(j)(5)(C)(ii),
but made no mention of the requirement to file an election within 2 years of their
marriage, IAF, Tab 2 at 4-6, Tab 24 at 3; PFR File, Tab 1 at 4-5. The
administrative judge failed to address this argument below and we thus modify
the initial decision in this regard. For the reasons set forth below, we discern no
harm because to the extent that the appellant alleges that he did not receive
adequate notice because the OPM representative misled him into believing that
the sole restriction governing his election of a survivor annuity for his new wife
was the 9-month waiting period, we disagree. See Panter, 22 M.S.P.R. at 282.
7
¶15 As an initial matter, we note that the appellant’s assertions concerning his
April 2011 communication with OPM are made through his attorney. He has not
provided any sworn statement or affidavit to support this claim. Thus, there is no
evidence that this communication occurred as alleged. 3 See Hendricks v.
Department of the Navy, 69 M.S.P.R. 163, 168 (1995) (finding that the statements
of a party’s representative in a pleading do not constitute evidence). Even if it
did, we find that OPM’s annual notices were sufficient to correct any confusion
the appellant may have had.
¶16 In determining whether the content of OPM’s annual notices to an annuitant
adequately informed him of his election rights, we look to the notice sent
immediately after the event that would result in his election or reelection
decision. Duzon, 101 M.S.P.R. 430, ¶ 11. There is no dispute that the appellant
received annual notices from OPM in or around December 2011 and December
2012, after he remarried and within the 2-year election period. IAF, Tab 1 at 7,
Tab 24 at 4; see IAF, Tab 10 at 11, 13. Yet, he disputes that these notices were
adequate to inform him of the requirements for electing a survivor annuity for his
current spouse. PFR File, Tab 1. We disagree. OPM’s notices informed him
that: “Survivor elections terminate upon the death of the person elected . . . a
survivor annuity election made at retirement . . . terminate[s] upon death . . . and
the annuitant must make a new election (reelection) within 2 years after the
terminating event to provide a survivor annuity for a spouse acquired after
retirement. Continuing a survivor reduction, by itself, is not effective to reelect a
3
The record contains what the appellant’s attorney asserts are contemporaneous notes
the appellant took during the April 2011 conversation; and a calendar entry the
appellant made following his April 2011 communication with OPM, reflecting that he
recorded the date his new wife would become eligible for a survivor annuity. IAF,
Tab 2 at 4-5, 8, 11. However, the appellant did not provide a sworn statement or
affidavit explaining what these documents are and, in any event, the handwritten notes
are illegible. The appellant also submitted telephone records indicating that he called
OPM in April 2011, but this does nothing to prove the content of that telephone
conversation. Id. at 15-17.
8
survivor annuity for a spouse married after retirement.” IAF, Tab 10 at 11, 13.
The notices further stated that a “survivor election for a spouse you marry after
retirement” “must” be submitted “in writing, before the expiration of the 2-year
time limit.” Id.
¶17 We find that these notices are abundantly clear and the appellant’s
arguments to the contrary, including his claim that he had “a reasonable and good
faith belief that he had properly elected to provide survivor annuity benefits for
his current spouse,” PFR File, Tab 1 at 8, are unpersuasive. Further, unlike the
situation in Wood, we cannot find that these notices lacked clarity and thus were
insufficient to correct any confusion that may have resulted from the appellant’s
alleged April 2011 communication with OPM. If OPM somehow misled him into
believing that there was no time limit for making an election, other than having to
wait for 9 months after his marriage, this was corrected when he was twice
notified that an election must be made within 2 years of the date of his marriage.
¶18 The appellant also argues that the administrative judge erred in citing to
Downing v. Office of Personnel Management, 619 F.3d 1374 (Fed. Cir. 2010), in
support of his finding that the appellant received adequate notice. PFR File,
Tab 1 at 7-8. Specifically, he notes that Downing concerned language relating to
making an election for a former spouse, whereas the issue in the instant case is
the language relating to making an election for a current spouse upon
post-retirement remarriage. Id. We discern no error. The administrative judge
discussed in detail the factors he considered in finding the notices at issue in this
appeal adequate. ID at 6-7. We agree with his analysis and we also find
additional support for his analysis in the notices, as discussed above.
We deny the appellant’s request for a waiver of the election deadline.
¶19 The appellant argues that, even if his election request were untimely filed,
the “equitable principles of justice and good conscience” demand that the Board
waive the filing deadline because: (1) the delay was minimal; (2) he had a
lengthy Federal career; (3) he had a “reasonable and good faith belief that he had
9
properly elected to provide survivor annuity benefits for his current spouse;” and
(4) denying his request would have a “devastating and permanent impact.” PFR
File, Tab 1 at 8.
¶20 It is well settled that equitable considerations do not provide a basis for
awarding benefits not otherwise authorized by law. Hunt v. Office of Personnel
Management, 89 M.S.P.R. 449, ¶9 (2001) (citing Office of Personnel
Management v. Richmond, 496 U.S. 414, 416, 434 (1990)). We recognize that, in
addition to OPM’s failure to provide required statutory notice, a filing deadline
prescribed by statute or regulation may be waived if: (1) the statute or regulation
specifically provides for a waiver under the circumstances; or (2) an agency’s
affirmative misconduct precludes enforcement of the deadline under the doctrine
of equitable estoppel, at least where such estoppel would not result in the
expenditure of appropriated funds in contravention of a statute. See Blaha v.
Office of Personnel Management, 106 M.S.P.R. 265, ¶ 8 (2007). However,
neither of these exceptions is applicable here. As a result, we deny the
appellant’s request. Accordingly, we affirm the initial decision except as
modified herein.
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. You have the right to
request the United States Court of Appeals for the Federal Circuit to review this
final decision. 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
10
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
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.