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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).
2
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
4
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
5
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).
6
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.
7
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.