NOTE: Pursuant to Fed. Cir. R. 47.6, this disposition
is not citable as precedent. It is a public record.
United States Court of Appeals for the Federal Circuit
04-3255
THERESA A. MOSQUEDA,
Petitioner,
v.
OFFICE OF PERSONNEL MANAGEMENT,
Respondent.
___________________________
DECIDED: January 13, 2005
___________________________
Before MICHEL, Chief Judge, RADER and LINN, Circuit Judges.
PER CURIAM
Appellant, Theresa A. Mosqueda, seeks review of the Merit Systems Protection
Board’s (Board’s) final decision, affirming the Office of Personnel Management’s
(OPM’s) denial of her application to increase her spousal survivor annuity. Mosqueda v.
Office of Personnel Mgmt., No. SE-0831-02-0396-I-1 (MSPB Mar 4, 2004) (Final
Decision). Because the Board’s decision is in accordance with law, this court affirms.
BACKGROUND
Albert Mosqueda, the annuitant in this matter, worked as a Supervisory General
Supply Specialist at the General Services Administration. In December 1994, Mr.
Mosqueda sought immediate retirement under the Civil Service Retirement System
(CSRS). In his application, Mr. Mosqueda elected a partial survivor annuity, namely
55% of $10,000 per year for his wife. Mrs. Mosqueda signed the requisite spousal
consent form on December 23, 1994. In January 1995, Mr. Mosqueda retired and in
March 1995, his monthly annuity payments commenced.
In May 1997, over two years after his retirement, Mr. Mosqueda filed a request
with OPM to change his survivor annuity election. OPM denied this request as
untimely, noting the eighteen-month deadline under 5 U.S.C. § 8339 (o)(1)(B). On
appeal, the Board affirmed the OPM denial in an initial determination. Mosqueda v.
Office of Personnel Mgmt., No. CH-0831-98-0364-I-1 (MSPB Nov. 17, 1998). The
Board’s initial determination became final absent Mr. Mosqueda’s petition for review.
On September 3, 2000, Mr. Mosqueda died. In her application for CSRS survivor
annuity, Mrs. Mosqueda requested the full annuity rather than the partial annuity as
provided for in her husband’s election. OPM denied her request. On appeal, the Board
affirmed OPM’s denial of a full annuity in an initial decision. Mosqueda v. Office of
Personnel Mgmt., No. SE-0831-02-0396-I-1 (MSPB Jan. 27, 2003). Mrs. Mosqueda
filed a petition for review, which the Board denied. Final Decision, slip op. at 2. Mrs.
Mosqueda now appeals to this court.
DISCUSSION
By statute, this court’s review of a final decision from the Board is limited. A
Board decision may not be set aside unless it is: (1) arbitrary or capricious, an abuse of
discretion, or otherwise not in accordance with law; (2) obtained without procedure
required by law, rule, or regulation having been followed; or (3) unsupported by
substantial evidence. 5 U.S.C. § 7703(c) (2000).
04-3255 2
On appeal, Mrs. Mosqueda argues for the first time that her husband fraudulently
obtained her signature on the spousal consent form. Specifically, Mrs. Mosqueda
contends that her husband intentionally misled her into believing that the survivor
annuity election could be changed up until he reached the age of 55. Mrs. Mosqueda
posits that her husband lied about the 18 month deadline to avoid receiving lower
retirement payments.
This court refrains from considering newly-raised arguments on appeal. See
generally Bosley v. Merit Sys. Prot. Bd., 162 F.3d 665, 668 (Fed. Cir. 1998) (“A party in
an MSPB proceeding must raise an issue before the administrative judge if the issue is
to be preserved for review in this court. Thus, if the party fails to raise an issue in the
administrative proceeding or raises an issue for the first time in a petition for review by
the full Board, this court will not consider the issue.” (citations omitted)). Here, the
record reflects that Mrs. Mosqueda never argued to the Board that her husband
fraudulently induced her consent to the partial survivor annuity. In fact, Mrs.
Mosqueda’s initial hearing transcript reflects her belief at that time that her husband was
misinformed that he could change his election until he reached the age of fifty-five.
Accordingly, this court does not address Mrs. Mosqueda’s new argument on appeal.
Moreover, the Board’s finding that Mr. and Mrs. Mosqueda’s reliance on any
misinformation may not estop the government from denying full survivor annuity finds
more than adequate legal support. See Office of Personnel Mgmt. v. Richmond, 496
U.S. 414, 434 (1990); see also Koyen v. Office of Personnel Mgmt., 973 F.2d 919, 921-
22 (Fed. Cir. 1992). Because the Board’s decision is in full accord with law, this court
affirms.
04-3255 3