UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
NATALIYA RAKOWSKY, DOCKET NUMBER
Appellant, DE-0831-14-0388-I-1
v.
OFFICE OF PERSONNEL DATE: January 6, 2017
MANAGEMENT,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Steven E. Brown, Esquire, Westlake Village, California, for the appellant.
Kristine Prentice, 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) that denied her request for a survivor annuity under the Civil Service
Retirement System (CSRS). Generally, we grant petitions such as this one only
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
when: 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 and AFFIRM the initial decision, which is now the Board’s final
decision. 5 C.F.R. § 1201.113(b).
BACKGROUND
¶2 The appellant’s deceased spouse, the annuitant, retired under the CSRS
on December 29, 1986. Initial Appeal File (IAF), Tab 6 at 36-38. At the time of
his retirement, the annuitant was married and elected a survivor annuity for his
then-spouse. Id. at 36, Tab 13 at 15-16. After the annuitant informed OPM that
his then-spouse died on January 31, 1996, OPM notified him that it had adjusted
his retirement annuity to the full-life rate due to his change in marital status.
IAF, Tab 6 at 32, 34. There is no indication that the annuity was reduced to fund
a survivor annuity thereafter.
¶3 The annuitant married the appellant on February 5, 1997. Id. at 30-31. In
January 1998, the annuitant designated the appellant on Standard Form (SF) 2823
and SF-2808 as his beneficiary under the Federal Employees’ Group Life
Insurance program and under the CSRS to receive a lump-sum death benefit.
IAF, Tab 13 at 18, 20. In May 2010, the annuitant sent to OPM a copy of a
certificate of his marriage to the appellant. IAF, Tab 6 at 29-31. After the
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annuitant died on June 27, 2013, the appellant filed a claim for a survivor annuity
that OPM denied. Id. at 11, 26. She requested reconsideration, and OPM
affirmed its decision. Id. at 6-10.
¶4 The appellant filed a Board appeal of OPM’s reconsideration decision and
asked for a hearing. IAF, Tab 1. After holding a telephonic hearing, the
administrative judge issued an initial decision affirming OPM’s reconsi deration
decision. IAF, Tab 23, Initial Decision (ID) at 2, 6. Specifically, she found that
the record was devoid of evidence showing that the annuitant manifested an
unmistakable intent to provide the appellant with a survivor annuity benefit and
that he failed to make a legally sufficient election of such a benefit. ID at 4. The
administrative judge further found that OPM complied with the statutory annual
notice requirement and the appellant failed to prove that the annuitant did not
receive the annual notices. ID at 5-6.
¶5 The appellant has filed a petition for review arguing, among other things,
that: she is entitled to a survivor annuity because the annuitant manifested an
intent to provide her with benefits; the administrative judge erred in finding that
OPM established that the annuitant received the statutorily required notice ; and
OPM failed to provide the annuitant with a survivor annuity election form after
he designated her as his beneficiary on the SF-2808 and SF-2823. Petition for
Review (PFR) File, Tab 2 at 8, 10, 14-15, 31-32. The agency has filed a
response. PFR File, Tab 5.
DISCUSSION OF ARGUMENTS ON REVIEW
¶6 An individual seeking retirement benefits bears the burden of proving her
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 the
annuitant elected to provide a survivor annuity for her “in a signed writing
received” by OPM within 2 years after their marriage.
4
5 U.S.C. § 8339(j)(5)(C)(i); see Jordan v. Office of Personnel Management,
100 M.S.P.R. 623, ¶ 7 (2005) (explaining that the annuitant, who had elected a
survivor annuity for his then-spouse at the time of his retirement and remarried
after she died, had 2 years after his remarriage to elect a survivor annuity for his
current spouse). An annuitant is not required to use any particular form in
making an election, but an annuitant’s intention to provide a survivor annuity
benefit is insufficient to constitute an effective election in the absence of a signed
writing received by OPM within 2 years of the date of his marriage that manifests
an unmistakable intent to provide such a benefit. Robinson v. Office of Personnel
Management, 106 M.S.P.R. 255, ¶¶ 8-9 (2007); Jordan, 100 M.S.P.R. 623, ¶ 7.
¶7 Here, the administrative judge found that, while the annuitant intended to
provide the appellant a survivor annuity, as mentioned previously, there was no
record evidence that the annuitant made the election in a writing to OPM.
ID at 4. The appellant has not shown error in the administrative j udge’s finding.
See Crosby v. U.S. Postal Service, 74 M.S.P.R. 98, 106 (1997) (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).
¶8 OPM has a statutory obligation to notify annuitants annually of their
survivor annuity election rights under 5 U.S.C. § 8339(j). Pub. L. No. 95-317
(codified at 5 U.S.C. § 8339 note); Brush v. Office of Personnel Management,
982 F.2d 1554, 1559-60 (Fed. Cir. 1992). 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. Cartsounis v. Office of
Personnel Management, 91 M.S.P.R. 502, ¶ 5 (2002). If OPM establishes
through credible evidence that it is more probable than not that it sent the annual
notice(s), the appellant then must present credible testimony or other evidence
supporting the contention that the annuitant did not receive the notice(s). Id.
5
¶9 Here, the OPM official responsible for printing and distributing retirement
forms and notices provided an affidavit explaining how general notices regarding
survivor elections were sent annually to all annuitants on OPM’s master annuity
roll from 1989 to 2000. IAF, Tab 6 at 12-13. The record includes copies of the
notices sent in December 1997 and 1998, which contain information on “Survivor
Annuity Benefits for a Spouse You Marry After Retirement” and state the 2-year
election requirement. Id. at 20-24. Our reviewing court held in Schoemakers v.
Office of Personnel Management, 180 F.3d 1377, 1380-81 (Fed. Cir. 1999), that a
similar affidavit satisfied OPM’s burden of proving both that it sent the required
annual notice and the contents of that notice. Accordingly, we agree with the
administrative judge’s findings that the annuitant received OPM’s general notices
in December 1997 and 1998, within the 2-year period after his remarriage, and
that the content of such notices was legally sufficient to satisfy the statutory
annual notice requirement. 2 ID at 3, 5-6; see Cartsounis, 91 M.S.P.R. 502, ¶ 7
(finding that OPM’s affidavit and notice satisfied its burden of proving both that
it sent the required annual notice and the contents of that notice). Based on our
review of the record, we also agree with the administrative judge’s finding that
the appellant failed to present credible testimony or other evidence showing that
the annuitant did not receive the annual notices. 3 ID at 5; see Stracquatanio v.
2
This case is factually distinguishable from Simpson v. Office of Personnel
Management, 347 F.3d 1361, 1364-65 (Fed. Cir. 2003), in which our reviewing court
found that OPM’s general notice failed to properly inform an annuitant , who already
had elected a survivor annuity for his spouse at the time of his retirement, of the
requirement to make a reelection for her following their divorce. This appeal involves
different factual circumstances, and we discern no reason to find OPM’s notice
inadequate. See Schoemakers, 180 F.3d at 1379-81.
3
The appellant argues that the administrative judge failed to consider her testimony and
evidence showing that the annuitant did not receive the annual notices. PFR File, Tab 2
at 8. However, the administrative judge addressed her contention that the annuitant did
not receive OPM’s notices and found it without merit. ID at 5. To the extent that the
administrative judge did not discuss her hearing testimony in depth, that does not mean
that he did not consider it. Marques v. Department of Health & Human Services,
22 M.S.P.R. 129, 132 (1984), aff’d, 776 F.2d 1062 (Fed. Cir. 1985) (Table).
6
Walkama, 54 M.S.P.R. 529, 532 (1992) (stating that a letter that is properly
addressed, stamped, and mailed is presumed to be delivered to the addressee).
¶10 Regarding the appellant’s argument that OPM failed to provide the
annuitant with a survivor annuity election form after he designated her as his
beneficiary on a SF-2808 and SF-2823, the appellant has not cited to any
requirement for OPM to take this action. PFR File, Tab 2 at 14-15, 31. Further,
the election to provide lump-sum death benefits and life insurance benefits is
insufficient to establish a survivor annuity election. See Kirk v. Office of
Personnel Management, 93 M.S.P.R. 547, ¶¶ 8, 10 (2003) (finding that, although
the annuitant designated his second wife as his beneficiary on SF -2808 and
SF-2823, he failed to prove that she was entitled to a survivor annuity because he
did not fulfill the statutory election requirements) ; see also Robinson,
106 M.S.P.R. 255, ¶ 8 (finding that submission of a completed SF-2808 does not
manifest an unmistakable intent to elect a survivor annuity benefit).
¶11 The appellant further claims on review that OPM’s mistakes in adjudicating
her annuity application, such as referring to the annuitant as “Mr. Jenkins” and
claiming that he did not notify OPM of his remarriage, show that OPM
mishandled his records and lost his written election. PFR File, Tab 2 at 8 -9,
12-13. We disagree and find that OPM simply made typographical errors. To the
extent the appellant argues that the annuitant was unable to make a survivor
annuity election due to his deteriorating mental condition, our reviewing court
has rejected a similar argument. PFR File, Tab 2 at 7, 33; see Schoemakers,
180 F.3d at 1381-82.
¶12 The appellant also argues that, although the annuitant’s retirement annuity
was not reduced to provide for a survivor annuity, she was willing to retroactively
pay the amount to receive survivor annuity benefits. PFR File, Tab 2 at 11. The
appellant cites no legal authority for such an action, and the Board lacks the
authority to waive requirements that Congress has imposed as a condition to the
payment of Federal money. Schoemakers, 180 F.3d at 1382.
7
¶13 With her petition for review, the appellant has submitted letters purportedly
sent from the annuitant to the Defense Finance and Accounting Service, medical
documentation showing the annuitant’s memory loss, letters supporting the
annuitant’s intent to provide a survivor annuity for her, a list of her medications
and supplements, and evidence from the record below. PFR File, Tab 2 at 12-29.
We need not consider these submissions because they do not constitute new
evidence. See Meier v. Department of the Interior, 3 M.S.P.R. 247, 256 (1980)
(stating that evidence that is already a part of the record is not new); Avansino v.
U.S. Postal Service, 3 M.S.P.R. 211, 214 (1980) (stating that the Board will not
consider evidence submitted for the first time with the petition for review absent
a showing that it was unavailable before the record was closed despite the p arty’s
due diligence). Nevertheless, even if we were to consider this evidence, it is
immaterial to whether the annuitant made a legally sufficient survivor annuity
election and does not warrant a different outcome than that of the initial decision.
See Russo v. Veterans Administration, 3 M.S.P.R. 345, 349 (1980) (stating that
the Board generally will not grant a petition for review based on new evidence
absent a showing that it is of sufficient weight to warrant an outcome different
from that of the initial decision).
¶14 Accordingly, we find that the administrative judge properly affirmed OPM’s
reconsideration decision that denied the appellant’s request for a survivor
annuity.
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
8
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 sta tutory
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 U.S. 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
U.S. 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 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.