UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
MARIA BAQUERA, DOCKET NUMBER
Appellant, DA-0831-16-0103-I-1
v.
OFFICE OF PERSONNEL DATE: September 13, 2016
MANAGEMENT,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL *
Miguel A. Mota, El Paso, Texas, for the appellant.
Kristopher L. Rogers, 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 her application for survivor annuity benefits. Generally, we grant
petitions such as this one only when: the initial decision contains erroneous
*
A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).
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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. 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).
¶2 In 1984, the decedent, Andres Baquera, retired from Federal service. At the
time, he was married to Amelia Baquera, and he elected a reduced annuity with
full survivor benefits for her. Initial Appeal File (IAF), Tab 7 at 41-43. She died
in 2005 and the decedent married the appellant in 2006. IAF, Tab 4 at 11-12. He
filed new designation of beneficiary forms for his Civil Service Retirement
System (CSRS) benefits and his life insurance, but he did not elect a survivor
annuity. IAF, Tab 7 at 20-21.
¶3 In 2015, the decedent died and the appellant applied for survivor annuity
benefits. IAF, Tab 4 at 13, Tab 7 at 36-40. In a reconsideration decision dated
November 3, 2015, OPM affirmed its initial decision denying her application on
the basis that the decedent never elected a survivor annuity for the appellant.
IAF, Tab 7 at 6-7. The appellant appealed.
¶4 After holding the appellant’s requested hearing, the administrative judge
affirmed the reconsideration decision. Initial Decision (ID) at 1, 6. He found
that OPM proved that it sent the required annual notices concerning survivor
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annuities to the decedent’s address of record and that the appellant did not show
that the decedent elected a survivor annuity for her. Id. at 3-6.
¶5 Under 5 U.S.C. § 8339(j)(5)(C)(i), a retired employee who was married
at retirement and who thereafter remarries may irrevocably elect, in a signed
writing received by OPM within 2 years after the remarriage, a reduction in the
employee’s annuity to provide a survivor annuity for the new spouse. Hatch v.
Office of Personnel Management, 101 M.S.P.R. 300, ¶ 5 (2006). OPM is required
to annually notify annuitants of their survivor annuity election rights under
5 U.S.C. § 8339(j). Simpson v. Office of Personnel Management, 347 F.3d 1361,
1364 (Fed. Cir. 2003); Hatch, 101 M.S.P.R. 300, ¶ 5. OPM has the burden of
proving both that it sent the annual notice and that the notice was adequate to
inform the annuitant of the specific election requirements under 5 U.S.C.
§ 8339(j). Hatch, 101 M.S.P.R. 300, ¶ 5.
¶6 Here, the administrative judge correctly found that OPM met its burden of
proof. OPM submitted copies of sample notices and the affidavit of Cyrus
S. Benson, which the Board has repeatedly found sufficient to establish that OPM
provided the required notice. E.g., Nunes v. Office of Personnel Management,
111 M.S.P.R. 221, ¶ 21 (2009); IAF, Tab 7 at 9-16. The appellant did not
challenge this evidence below or on review.
¶7 An individual seeking retirement benefits bears the burden of proving
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 in this case, the appellant must show
that the decedent elected to provide a survivor annuity for the appellant “in a
signed writing received” by OPM within 2 years after his marriage, or, by
June 13, 2008. 5 U.S.C. § 8339(j)(5)(C)(i); Kirk v. Office of Personnel
Management, 93 M.S.P.R. 547, ¶ 4 (2003).
¶8 The appellant does not specifically contend that the decedent made a proper
election. Instead, she asserts that he intended to provide a survivor annuity for
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her and thought he was doing so when he submitted newly executed designation
of beneficiary forms. To make an effective election of a survivor annuity benefit
for a current spouse, an annuitant must manifest an unmistakable intent to make
such an election. Robinson v. Office of Personnel Management, 106 M.S.P.R.
255, ¶ 8 (2007). The submission of a completed designation of beneficiary form
to OPM does not manifest an unmistakable intent to elect a survivor annuity
benefit. Id.; Kirk, 93 M.S.P.R. 547, ¶ 10. Therefore, we find that the
administrative judge correctly concluded that the appellant failed to meet her
burden of proving that she is entitled to survivor annuity benefits.
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
You have the right to request review of this final decision by the U.S.
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
States Code, at our website, http://www.mspb.gov/appeals/uscode.htm.
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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 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
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: ______________________________
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.