The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
DONALD RAY THOMAS, DOCKET NUMBER
Appellant, AT-0831-15-0226-I-1
v.
OFFICE OF PERSONNEL DATE: September 28, 2015
MANAGEMENT,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Wen Houqiong Thomas, Longs, South Carolina, 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) denying his request to elect a survivor annuity for his current spouse.
Generally, we grant petitions such as this one only when: the initial decision
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
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, 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).
DISCUSSION OF ARGUMENTS ON REVIEW
¶2 The appellant retired from Federal service under the Civil Service
Retirement System (CSRS) in 1997. Initial Appeal File (IAF), Tab 9 at 36.
When he retired, the appellant was unmarried and, on his retirement application,
he elected an annuity payable only during his lifetime. Id. The appellant married
his current spouse on July 16, 1999. Id. at 31. The evidence provided by OPM
reflects that, in December 1999, and December 2000, it sent notices to the
appellant informing him that, if he married subsequent to his retirement, he had
2 years from the date of his marriage to elect a survivor annuity for his new
spouse. Id. at 12-13, 16-17 (December 1999 notice); IAF, Tab 15 at 5-6
(December 2000 notice). Approximately 7 years after the marriage, on July 31,
2006, the appellant sent a request to OPM seeking to elect a survivor annuity for
his spouse. IAF, Tab 9 at 30. OPM denied the request in an August 31, 2006
initial decision, which the appellant purportedly never received. See id. at 19;
IAF, Tab 2 at 20. In July 2013, the appellant submitted a second request and, in
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an initial decision dated July 15, 2013, OPM denied the request because the
appellant had failed to make the election within 2 years of his marriage. IAF,
Tab 2 at 19, Tab 9 at 29. The appellant requested reconsideration of the second
initial decision. IAF, Tab 9 at 19. After an intervening Board appeal regarding
the timeliness of the appellant’s request for reconsideration, OPM issued a
July 24, 2014 reconsideration decision denying the appellant’s request on the
ground that he had failed to timely elect a survivor annuity within 2 years of his
marriage. 2 Id. at 10-11.
¶3 In December 2014, the appellant appealed the July 24, 2014 reconsideration
decision to the Board, stating that he did not receive the reconsideration decision
until on or about December 6, 2014. 3 IAF, Tab 1 at 5. He did not request a
hearing. Id. at 2. In an initial decision based on the written record, the
administrative judge affirmed OPM’s reconsideration decision, finding that the
appellant did not make a timely election of survivor annuity benefits and that
there was no basis to waive the statutory deadline. IAF, Tab 16, Initial Decision
(ID). The appellant has petitioned for review, OPM has responded in opposition
2
OPM dismissed the appellant’s request for reconsideration in an October 31, 2013
reconsideration decision, stating that his request for review of the August 31, 2006
initial decision was untimely filed by 7 years. IAF, Tab 2 at 17-18. The appellant
appealed the reconsideration decision to the Board, and the administrative judge
vacated OPM’s final decision and remanded the matter to OPM for a final appealable
decision regarding the appellant’s election of a survivor annuity benefit for his spouse.
Id. at 8-11; see Thomas v. Office of Personnel Management, MSPB Docket No.
AT-0831-14-0202-I-1, Initial Decision (May 5, 2014). Pursuant to the remand
instruction, OPM issued the July 24, 2014 reconsideration decision, which is now on
review. See IAF, Tab 9 at 10-11.
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Although the appellant filed the appeal outside of the 30-day time limit for appealing
reconsideration decisions to the Board, OPM did not challenge the timeliness of the
appellant’s Board appeal or his contention that he did not receive a copy of the
reconsideration decision until December 2014. See IAF, Tab 9 at 4-5. The
administrative judge did not make a specific finding as to the timeliness of the
appellant’s Board appeal. See IAF, Tab 12. As the agency has not challenged the
timeliness of the appeal either below or on review, and this matter can be decided on
the merits, we discern no need to address the timeliness issue. See Ferrin-Rodgers v.
U.S. Postal Service, 115 M.S.P.R. 140, ¶ 7 (2010).
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to the petition for review, and the appellant has submitted a reply. Petition for
Review (PFR) File, Tabs 1, 5-6.
¶4 When a Federal annuitant is unmarried at the time of his retirement under
CSRS but marries after retirement, he may elect to provide a survivor annuity for
his spouse within 2 years after his marriage. 5 U.S.C. § 8339(k)(2)(A); 5 C.F.R.
§ 831.631(b)(1). On review, the appellant acknowledges that he did not contact
OPM to elect a survivor annuity for his spouse until July 2006, approximately
7 years after the July 1999 marriage. See PFR File, Tab 1 at 4. He seeks a
waiver of the filing deadline, however, based on his lack of knowledge of the
deadline to elect a survivor annuity and the financial hardship that will befall his
spouse if he is unable to provide a survivor annuity for her. See id. at 4-6. The
appellant also asserts that his spouse never gave him consent to provide her less
than the maximum current survivor spouse annuity, as discussed in chapter 52 of
the CSRS/Federal Employees’ Retirement System Handbook. Id. at 5, 11.
¶5 The Board has recognized three bases for waiving a filing deadline
prescribed by statute or regulation: (1) the statute or regulation may provide for a
waiver under specified circumstances; (2) an agency’s affirmative misconduct
may preclude enforcement of the deadline under the doctrine of equitable
estoppel; and (3) an agency’s failure to provide a notice of rights and the
applicable filing deadline, where such notice is required by statute or regulation,
may warrant a waiver of the deadline. Perez Peraza v. Office of Personnel
Management, 114 M.S.P.R. 457, ¶ 7 (2010). For the reasons discussed below,
however, we find that the appellant has not established that he is entitled to
waiver of the 2-year filing deadline to elect a survivor annuity for a new spouse.
¶6 First, the applicable statute and regulation do not provide for waiver of the
filing deadline on the basis of an annuitant’s misunderstanding of the time limit
or on the basis of potential financial hardship if the election is not allowed.
See 5 U.S.C. § 8339; 5 C.F.R. § 831.631. Moreover, although the appellant
asserts that his spouse never gave him consent to provide her less than the
5
maximum current survivor spouse annuity, the requirement for spousal consent
pertains only to employees who are married at the time of retirement. 5 U.S.C. §
8339(j)(1). It is undisputed that the appellant was unmarried when he retired in
1997 and, thus, the spousal consent requirement did not apply to his situation and
provides no basis for waiver of the filing deadline.
¶7 Second, the appellant does not allege affirmative misconduct by OPM that
may preclude enforcement of the 2-year deadline under the doctrine of equitable
estoppel. Further, there is no evidence in the record to suggest that OPM engaged
in any affirmative misconduct that could have affected the appellant’s ability to
timely elect a survivor annuity for his new spouse. Thus, no waiver is warranted
on the basis of affirmative misconduct.
¶8 Finally, OPM has a statutory obligation to notify each annuitant annually of
his or her election rights under 5 U.S.C. § 8339(j) and (k)(2). Fox v. Office of
Personnel Management, 98 M.S.P.R. 72, ¶ 7 (2004). In appeals concerning the
question of whether OPM sent such notification, OPM has the burden of proving
both that it sent the annual notice and the contents of the notice. Id. The
appellant then must present credible testimony or other evidence supporting the
contention that he or she did not receive the annual notice. Id. Here, the
administrative judge concluded that the appellant was not entitled to waiver based
on lack of statutory notice because OPM met its burden of proving that it sent the
appellant the appropriate notices and that he did not dispute receiving them. ID
at 3-5. On review, the appellant does not challenge this finding. See PFR File,
Tabs 1, 6. Nonetheless, we have considered the record evidence and agree with
the administrative judge’s finding. First, we agree that OPM met its burden of
proof by submitting an affidavit by the administrator of the contract for printing
and distribution of forms and notices for OPM’s Retirement and Insurance
Service, which described the system by which annual notices regarding survivor
elections were sent to annuitants, with copies of the December 1999 and
December 2000 notices attached. See IAF, Tab 9 at 12-13, 16-17, Tab 15 at 5-6;
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see also Fox, 98 M.S.P.R. 72, ¶¶ 8-9 (finding that a virtually identical affidavit
satisfied OPM’s burden of proof). Second, we agree that the appellant failed to
rebut this showing. See ID at 5. Although the appellant alleged below that he did
not receive the notices, see, e.g., IAF, Tab 2 at 1, his wife, acting as his
representative, later stated only that the appellant did not “recall” receiving them,
IAF, Tab 13. Moreover, the appellant did not submit any evidence or credible
testimony to support his contention that he did not receive the annual notices.
Accordingly, we conclude that the administrative judge correctly found that the
appellant is not entitled to waiver of the filing deadline for electing a survivor
annuity for his spouse.
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.