Opinion

Antonio Abe v. Office of Personnel Management

Court: Merit Systems Protection Board
Filed: Jan 5, 2023
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 22.6%

holding that a similar affidavit from a person familiar with how annual notices are prepared and sent can satisfy OPM’ s burden to show that the annual notices were sent

How later courts described this case

holding that a similar affidavit from a person familiar with how annual notices are prepared and sent can satisfy OPM’ s burden to show that the annual notices were sent
holding that 5 U.S.C. § 8339(k)(2)(A) does not permit waiver of the filing deadline to elect a survivor annuity after marriage because of the annuitant’s mental condition

Written by the judges who cited it.

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

ANTONIO L. ABE, DOCKET NUMBER

Appellant, SF-0831-16-0716-I-1

OFFICE OF PERSONNEL DATE: January 5, 2023

MANAGEMENT,

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Consuelo T. Abe, Malabon City, Philippines, for the appellant.

Cynthia Reinhold, Washington, D.C., for the agency.

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, Member

Tristan L. Leavitt, 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 under the Civil Service

Retirement System (CSRS) for his current spouse. Generally, we grant petitions

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).

such as this one only in the following circumstances: 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 administrative 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. 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. Except as expressly

MODIFIED by this Final Order to reflect the correct statutory provision

applicable to this case, we AFFIRM the initial decision.

BACKGROUND

¶2 The appellant retired under the CSRS in April 1972. Initial Appeal File

(IAF), Tab 1 at 5, Tab 8 at 28. At the time of his retirement, the appellant was

married and elected a survivor annuity for his then -spouse. IAF, Tab 8 at 28.

The appellant’s then-spouse died in July 2008, and the appellant remarried in

July 2009. Id. at 25-27. By letter dated June 6, 2015, the appellant informed

OPM that his former spouse was deceased and he had remarried, and requested

that “appropriate action be taken on matters immediat ely.” Id. at 22. OPM

construed the appellant’s request as one to provide survivor annuity benefits for

his current spouse and denied the request because the appellant did not notify

OPM of an election of a reduced annuity with a survivor benefit within 2 years of

the marriage. Id. at 20. The appellant requested reconsideration of OPM’s

decision, stating that he failed to request a survivor annuity for his current spouse

within 2 years of their marriage because weather conditions initially prevented

him from mailing the request, and then he had forgotten to mail it, citing his age

as the reason for his forgetfulness. Id. at 16, 19. On July 14, 2016, OPM issued a

reconsideration decision affirming its initial decision. Id. at 8-9.

¶3 The appellant timely filed a Board appeal of OPM’s reconsideration

decision. 2 IAF, Tab 1. He did not request a hearing. Id. at 1. The administrative

judge issued an Order Closing the Record finding that the Board has jurisdiction

over the appeal, notifying the appellant of the requirements to prove his

eligibility to elect a survivor annuity for his current spouse, and providing the

parties with the opportunity to submit additional evidence and argument prior to

the date on which the record was scheduled to close. IAF, Tab 9 at 1-4.

¶4 The administrative judge issued an initial decision affirming OPM’s

reconsideration decision, based on the written record. IAF, Tab 11, Initial

Decision (ID). The administrative judge found that the appellant was required by

statute to make a written request to elect a survivor annuity for his current spouse

within 2 years of their marriage but that he did not submit a request until 2015

and that therefore, he did not timely elect a survivor annuity for his current

spouse. ID at 3-4. The administrative judge further found that the appellant did

not show a basis for waiving the deadline to elect a survivor annuity. ID at 4-7.

Specifically, she found that the statute setting forth the filing deadline did not

provide for a waiver of the deadline, that OPM did not misinform the appellant of

the necessary steps to make the election, and that OPM complied with the

statutory requirement to annually inform the appellant of his election rights. Id.

¶5 The appellant has timely filed a petition for review in which he requests

leniency concerning his failure to timely elect a survivor annuity and argues that

it is not in the interest of justice to deny his request because he is more than

The appellant received OPM’s July 14, 2016 reconsideration decision on July 31,

2016. IAF, Tab 1 at 3, Tab 8 at 7. He mailed his appeal, postmarked August 16, 2016,

to OPM, which forwarded the appeal to the Board’s Washington Regional Office. IAF,

Tab 1 at 9, 11.

90 years old and sickly. 3 Petition for Review (PFR) File, Tab 1 at 2. OPM has

filed a response opposing the petition for review. PFR File, Tab 4. For the

reasons set forth below, we affirm the initial decision, as modified.

DISCUSSION OF ARGUMENTS ON REVIEW

¶6 An individual seeking retirement benefits bears the burden of proving his

entitlement to those benefits by preponderant evidence. Cheeseman v. Office of

Personnel Management, 791 F.2d 138, 140-41 (Fed. Cir. 1986); 5 C.F.R.

§ 1201.56(b)(2)(ii). To meet this burden, the appellant must show that he elected

to provide a survivor annuity for his current spouse in a signed writing received

by OPM within 2 years after his remarriage. 5 U.S.C. § 8339(j)(5)(C)(i); Kirk v.

Office of Personnel Management, 93 M.S.P.R. 547, ¶ 4 (2003).

¶7 Here, the administrative judge found that the appellant married his current

spouse in July 2009 but did not write to OPM to elect a survivor annuity for her

until June 6, 2015, nearly 6 years after the marriage. ID at 3-4. Thus, the

administrative judge determined that the appellant had not timely elected a

survivor annuity for his current spouse. ID at 4. The appellant has not disputed

this finding, and we discern no reason to disturb the administrative judge’s

finding, as the record reflects that she considered the evidence as a whole, drew

appropriate inferences, and made reasoned conclusions. Id.; see Clay v.

Department of the Army, 123 M.S.P.R. 245, ¶ 6 (2016) (finding no reason to

disturb the administrative judge’s findings when she considered the evidence as a

whole, drew appropriate inferences, and made reasoned conclusions); Broughton

v. Department of Health & Human Services, 33 M.S.P.R. 357, 359 (1987) (same).

The appellant mailed his petition for review of the December 12, 2016 initial decision

on January 4 or 6, 2017, to the Board’s Western Regional Office. PFR File, Tab 1

at 3-4. The Western Regional Office forwarded the petition for review to the Office of

the Clerk of the Board, which deemed the petition timely filed on January 6, 2017. PFR

File, Tab 1 at 1, Tab 2.

¶8 On review, the appellant requests a waiver of the filing deadline because of

his advanced age and ill health. PFR File, Tab 1 at 2. As noted by the

administrative judge, 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 enforcing 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 waiver of the deadline. Perez Peraza v. Office of Personnel

Management, 114 M.S.P.R. 457, ¶ 7 (2010). Although the administrative judge

did not cite the correct statutory provision applicable to this case, 5 U.S.C.

§ 8339(j)(5)(C)(i), she correctly found that the statutory provision at issue does

not permit waiver of the filing deadline. 4 ID at 3-4; see Shaughnessy v. Office of

Personnel Management, 43 M.S.P.R. 633, 637-38 (1990) (holding that, in the

case of an annuitant who was married at the time of his retirement and later

remarried, 5 U.S.C. § 8339(j)(1) did not provide a waiver of the time limit to

make an election after remarriage on the basis that the annuitant was mentally

incompetent); cf. Schoemakers v. Office of Personnel Management, 180 F.3d

1377, 1381-82 (Fed. Cir. 1999) (holding that 5 U.S.C. § 8339(k)(2)(A) does not

permit waiver of the filing deadline to elect a survivor annuity after marriage

because of the annuitant’s mental condition).

The administrative judge cited 5 U.S.C. § 8339(k)(2)(A), which pertains to an

employee who was unmarried at the time of retirement, whereas 5 U.S.C.

§ 8339(j)(5)(C)(i) pertains to an employee who was married at the time of retirement.

ID at 3. The appellant in this case was married at the time of retirement. See IAF,

Tab 8 at 28. Thus, we modify the initial decision to reflect that the statutory provision

applicable to this case is 5 U.S.C. § 8339(j)(5)(C)(i). However, sections 8339(k)(2)(A)

and 8339(j)(5)(C)(i) provide nearly identical language regarding the requirement that

electing a survivor annuity occur within 2 years after a post-retirement marriage; thus,

the administrative judge’s citing the incorrect statutory provision did not affect her

correct analysis of the statutory language. Compare 5 U.S.C. § 8339(j)(5)(C)(i), with

5 U.S.C. § 8339(k)(2)(A).

¶9 The appellant does not dispute the administrative judge’s f inding that the

agency did not engage in affirmative misconduct that could preclude enforcing

the filing deadline, nor do we discern any reason to disturb the administrative

judge’s findings on this point. ID at 4-5; see Clay, 123 M.S.P.R. 245, ¶ 6.

¶10 The appellant also does not dispute the administrative judge’s finding that

OPM met its burden to show that it properly notified the appellant of the

applicable filing deadline. ID at 5-7. OPM has a statutory obligation to notify

annuitants annually of their survivor annuity election rights under 5 U.S.C.

§ 8339(j). Act of July 10, 1978, Pub. L. No. 95-317, 92 Stat. 382 (1978)

(codified at 5 U.S.C. § 8339 note); Brush v. Office of Personnel Management,

982 F.2d 1554, 1559-60 (Fed. Cir. 1992). OPM has the burden of proving both

that it sent the annual notice and the contents of the notice. Brush, 982 F.2d

at 1561; Cartsounis v. Office of Personnel Management, 91 M.S.P.R. 502, ¶ 5

(2002). In determining whether the content of the agency’s annual notice s to an

annuitant adequately informed him of his election rights, the Board will look to

the notices sent immediately after the event that would result in the need to make

a new election. Allen v. Office of Personnel Management, 99 M.S.P.R. 653, ¶ 9

(2005). If OPM establishes through credible evidence that it is more probable

than not that it sent the annual notices, the appellant then must p resent credible

testimony or other evidence supporting the contention that he did not receive the

notices. Cartsounis, 91 M.S.P.R. 502, ¶ 5.

¶11 Here, the OPM official responsible for printing and distributing retirement

forms and notices provided an affidavit explaining that general notices regarding

survivor elections were sent annually to all annuitants on OPM’s master annuity

roll from 1989 to 2010. IAF, Tab 8 at 10-11. Such notice satisfies OPM’s burden

of proving that it sent the required annual notice. See Schoemakers, 180 F.3d

at 1380-81 (holding that a similar affidavit from a person familiar with how

annual notices are prepared and sent can satisfy OPM’ s burden to show that the

annual notices were sent). The record includes copies of the notices sent to the

appellant in December 2009 and December 2010, which contain a section titled

“Survivor Election for a Spouse You Marry After Retirement” and provide the

appellant with his right to elect a survivor annuity, including information

regarding how to make an election, the time frame within which to do so, and the

consequences of choosing a survivor annuity benefit. IAF, Tab 8 at 12-15.

Accordingly, we agree with the administrative judge’s findings that OPM sent

general notices in December 2009 and December 2010, within the 2-year period

after the appellant’s remarriage, and we find that the content of each notice

adequately informed him of his right to elect a survivor annuity. 5 ID at 5-7; see

Dorsey v. Office of Personnel Management, 587 F.3d 1111, 1115 (Fed. Cir. 2009)

(finding that OPM provided the annuitant adequate notice of his right to elect a

survivor annuity where the notices provided information regarding how to make

an election, the time frame within which he needed to do so, and the

consequences of choosing a survivor annuity benefit). Based on our review of the

record, we also agree with the administrative judge that the appellant did not

present evidence showing that he did not receive the annual notices. I D at 6. We

thus find no basis on which to waive the statutory filing deadline.

¶12 Accordingly, we find that the administrative judge properly affirmed OPM’s

reconsideration decision that denied the appellant’s request for a survivor annuity

for his current spouse.

The administrative judge only made findings regarding the adequacy of the content of

OPM’s notices with respect to the December 2010 notice. ID at 6-7. Our review of the

record reflects that the notice to which the administrative judge referred was issued in

December 2009, and the second notice that appears in the record was issued in

December 2010. IAF, Tab 8 at 12-15. The notices could cause confusion as to the date

on which they were sent to the appellant, as the first notice refers to a January 2010

payment, and the second notice refers to a January 2011 payment; however, these

references appear in the context of notifying the annuitant of adjustments to his

payment for the upcoming year. See id. We find that the content of each notice

adequately informed the appellant of his right to elect a survivor annuity. See id.

NOTICE OF APPEAL RIGHTS 6

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 may obtain

review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of

your claims determines the time limit for seeking such review and the appropriate

forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following

summary of available appeal rights, the Merit Systems Protection Board does not

provide legal advice on which option is most appropriate for your situation and

the rights described below do not represent a statement of how courts will rule

regarding which cases fall within their jurisdiction. If you wish to seek review of

this final decision, you should immediately review the law applicable to your

claims and carefully follow all filing time limits and requirements. Failure to file

within the applicable time limit may result in the dismissal of your case by your

chosen forum.

Please read carefully each of the three main possible choices of review

below to decide which one applies to your particular case. If you have questions

about whether a particular forum is the appropriate one to review your cas e, you

should contact that forum for more information.

(1) Judicial review in general. As a general rule, an appellant seeking

judicial review of a final Board order must file a petition for review with the U.S.

Court of Appeals for the Federal Circuit, which must be received by the court

within 60 calendar days of the date of issuance of this decision. 5 U.S.C.

§ 7703(b)(1)(A).

Since the issuance of the initial decision in this matter, the Board may have updated

the notice of review rights included in final decisions. As indicated in the notice, the

Board cannot advise which option is most appropriate in any matter.

If you submit a petition for review to the U.S. Court of Appeals for the

Federal Circuit, you must submit your petition to the court at the

following address:

U.S. Court of Appeals

for the Federal Circuit

717 Madison Place, N.W.

Washington, D.C. 20439

Additional information about the U.S. Court of Appeals for the Federal

Circuit 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, 10, and 11.

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

the U.S. 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

Board neither endorses the services provided by any attorney nor warrants that

any attorney will accept representation in a given case.

(2) Judicial or EEOC review of cases involving a claim of

discrimination. This option applies to you only if you have claimed that you

were affected by an action that is appealable to the Board and that such action

was based, in whole or in part, on unlawful discrimination. If so, you may obtain

judicial review of this decision—including a disposition of your discrimination

claims—by filing a civil action with an appropriate U.S. district court ( not the

U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you

receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems

Protection Board, 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a

representative in this case, and your representative receives this decision before

you do, then you must file with the district court no later than 30 calendar days

after your representative receives this decision. If the action involves a claim of

discrimination based on race, color, religion, sex, national origin, or a disabling

condition, you may be entitled to representation by a court-appointed lawyer and

to waiver of any requirement of prepayment of fees, costs, or oth er security. See

42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a.

Contact information for U.S. district courts can be found at their respective

websites, which can be accessed through the link below:

http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.

Alternatively, you may request review by the Equal Employment

Opportunity Commission (EEOC) of your discrimination claims only, excluding

all other issues. 5 U.S.C. § 7702(b)(1). You must file any such request with the

EEOC’s Office of Federal Operations within 30 calendar days after you receive

this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,

and your representative receives this decision before you do, then you must file

with the EEOC no later than 30 calendar days after your representative receives

this decision.

If you submit a request for review to the EEOC by regular U.S. mail, the

address of the EEOC is:

Office of Federal Operations

Equal Employment Opportunity Commission

P.O. Box 77960

Washington, D.C. 20013

If you submit a request for review to the EEOC via commercial delivery or

by a method requiring a signature, it must be addressed to:

Office of Federal Operations

Equal Employment Opportunity Commission

131 M Street, N.E.

Suite 5SW12G

Washington, D.C. 20507

(3) Judicial review pursuant to the Whistleblower Protection

Enhancement Act of 2012. This option applies to you only if you have raised

claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or

other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).

If so, and your judicial petition for review “raises no chall enge to the Board’s

disposition of allegations of a prohibited personnel practice described in section

2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),

(B), (C), or (D),” then you may file a petition for judicial review ei ther with the

U.S. Court of Appeals for the Federal Circuit or any court of appeals of

competent jurisdiction. 7 The court of appeals must receive your petition for

review within 60 days of the date of issuance of this decision. 5 U.S.C.

§ 7703(b)(1)(B).

If you submit a petition for judicial review to the U.S. Court of Appeals for

the Federal Circuit, you must submit your petition to the court at the