NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
__________________________
IRENE BRIGGS,
Petitioner,
v.
OFFICE OF PERSONNEL MANAGEMENT,
Respondent.
__________________________
2012-3023
__________________________
Petition for review of the Merit Systems Protection
Board in case no. PH0843110006-I-1
_________________________
Decided: April 9, 2012
_________________________
IRENE BRIGGS, of Lakeville, Massachusetts, pro se.
JEFFREY D. KLINGMAN, Trial Attorney, Commercial
Litigation Branch, Civil Division, United States Depart-
ment of Justice, of Washington, DC, on behalf of respon-
dent. With him on the brief were TONY WEST, Assistant
Attorney General, JEANNE E. DAVIDSON, Director, and
CLAUDIA BURKE, Assistant Director.
__________________________
BRIGGS v. OPM 2
Before DYK, O’MALLEY, and REYNA, Circuit Judges
PER CURIAM.
Irene Briggs (“Ms. Briggs”) appeals from the final or-
der of the United States Merit Systems Protection Board
(“the Board”), which adopted the initial decision of the
administrative judge (“AJ”) that Ms. Briggs was not
entitled to former spouse survivor annuity benefits under
the Civil Service Retirement System (“CSRS”), 5 U.S.C.
§ 8331 et seq. Briggs v. Office of Pers. Mgmt., No. PH-
0843-11-0006-I-1 (M.S.P.B. Sept. 1, 2011) (“Final Deci-
sion”). For the reasons explained below, we affirm.
BACKGROUND
Paul Briggs (“Mr. Briggs”) was employed by the U.S.
Postal Service from 1970 until he was granted disability
retirement on October 30, 1997. Mr. and Ms. Briggs were
married in 1976. When Mr. Briggs retired, he elected to
receive a reduced annuity so that his wife, Ms. Briggs,
could receive a maximum survivor annuity.
While Mr. and Ms. Briggs separated in 1992, their di-
vorce did not become final until May 15, 2009. Their
divorce decree does not stipulate that survivor annuity
benefits should be distributed to Ms. Briggs upon Mr.
Briggs’ death. Indeed, the decree indicates that “the
parties have no retirement/investment funds to distrib-
ute.” Resp’t’s App. 31.
Less than a year after the divorce was finalized, Mr.
Briggs passed away on March 23, 2010. After his death,
Ms. Briggs requested survivor annuity benefits from the
Office of Personnel Management (“OPM”). On May 27,
2010, OPM informed Ms. Briggs that she was not entitled
to a former spouse survivor annuity because the divorce
decree it had on file did not indicate that survivor benefits
should be distributed to her. On reconsideration, OPM
3 BRIGGS v. OPM
affirmed its initial decision, “finding that Mr. Briggs’
election of a survivor annuity prior to his retirement
terminated upon dissolution of the marriage to the appel-
lant, and he had not elected a former spouse annuity
between the date of the divorce and his death” as required
by relevant statutes. Briggs v. Office of Pers. Mgmt., No.
PH-0843-11-0006-I-1, slip op. at 2 (M.S.P.B. Jan. 7, 2011)
(“Initial Decision”).
Responding to OPM’s decision, Ms. Briggs filed an ap-
peal with the Board. In its initial decision, the AJ af-
firmed OPM’s denial of survivor annuity benefits for Ms.
Briggs. The AJ concluded that, because Mr. Briggs’ initial
survivor annuity election was terminated by the divorce,
Ms. Briggs must establish either: “(1) that Mr. Briggs
made a new election of a survivor annuity for her–his
former spouse–within two years of their divorce . . . ; or,
(2) that the terms of any divorce decree, or in any court
order or court-approved property settlement agreement
issued in connection with the divorce decree, expressly
provided for a former spouse survivor annuity.” Id., slip
op. at 3–4. Because Mr. Briggs never filed a former
spouse survivor annuity election with OPM and the
divorce decree did not include language that provided Ms.
Briggs with a former spouse survivor annuity, the AJ
found that she could still receive survivor benefit only if
she established that: (1) Mr. Briggs did not receive the
required annual notice of his election rights; and (2) he
intended to provide Ms. Briggs with former spouse survi-
vor annuity benefits. While there was ample evidence
that Mr. Briggs intended for Ms. Briggs to receive a
survivor annuity, the AJ concluded that, in the face of the
evidence OPM presented that it had sent the required
annual notice to Mr. Briggs, Ms. Briggs had not estab-
lished that Mr. Briggs did not receive that notice. The AJ,
therefore, determined that Ms. Briggs was not entitled to
BRIGGS v. OPM 4
survivor annuity benefits.
Ms. Briggs filed a petition for review of the AJ’s initial
decision. Upon consideration of her petition, the Board
denied her request for review of the initial decision be-
cause Ms. Briggs had not established the existence of any
grounds upon which it could grant a review. Accordingly,
the initial decision became final.
Ms. Briggs timely appealed this decision. We have ju-
risdiction pursuant to 28 U.S.C. § 1295(a)(9).
DISCUSSION
I.
This court must affirm the Board’s decision unless it
was “(1) arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law; (2) obtained with-
out procedures required by law, rule, or regulation having
been followed; or (3) unsupported by substantial evi-
dence.” 5 U.S.C. § 7703(c); see Yates v. Merit Sys. Prot.
Bd., 145 F.3d 1480, 1483 (Fed. Cir. 1998). Substantial
evidence is “such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion.” Simp-
son v. Office of Pers. Mgmt., 347 F.3d 1361, 1364 (Fed.
Cir. 2003) (internal quotation marks omitted).
II.
At retirement, a federal employee can elect to receive
a reduced annuity to provide survivor annuity benefits.
Divorce, however, terminates a prior election of spousal
survivor annuity benefits. 5 U.S.C. § 8339(j)(5)(A). A
former spouse may still receive a survivor annuity, how-
ever, “if and to the extent a divorce decree or court order
expressly provides for one, 5 U.S.C. § 8341(h)(1), or if the
annuitant makes a new election to grant a survivor
annuity within two years after the date on which the
5 BRIGGS v. OPM
marriage dissolves. 5 U.S.C. §§ 8341(h)(1), 8339(j)(3).”
Downing v. Office of Pers. Mgmt., 619 F.3d 1374, 1376–77
(Fed. Cir. 2010). In the absence of a new election, or a
divorce decree or court order granting a survivor annuity,
a former spouse may still receive survivor annuity bene-
fits if “(1) the annuitant did not receive the required
[annual] notice, and (2) ‘there [is] evidence sufficient to
show that the retiree indeed intended to provide a survi-
vor annuity for the former spouse.’ ” Hernandez v. Office
of Pers. Mgmt., 450 F.3d 1332, 1335 (Fed. Cir. 2006)
(second alteration in original) (quoting Vallee v. Office of
Pers. Mgmt., 58 F.3d 613, 616 (Fed. Cir. 1995)).
Here, Ms. Briggs concedes that her former husband
never made a new election and that the divorce decree
does not grant her survivor annuity benefits. The issue
before the Board was, therefore, whether Ms. Briggs could
establish that her husband never received his annual
notice and that he intended to provide her with a survivor
annuity.
Regarding the annual notice requirement, the Gov-
ernment must “on an annual basis, inform each annuitant
of such annuitant’s rights of election under section[]
8339(j).” Act of July 10, 1978, Pub. L. No. 95-317, § 3, 92
Stat. 382, 382, reprinted in 5 U.S.C. § 8339 note. Such
notice is insufficient if it does not “stat[e] that a pre-
divorce election automatically terminates upon divorce
and that an annuitant must make a new election to
provide a survivor annuity for a former spouse.” Simpson,
347 F.3d at 1365. “When a nonfrivolous allegation is
made that OPM has not sent the mandatory notice as
required by statute, the burden of going forward (or the
burden of production) falls to OPM.” Brush v. Office of
Pers. Mgmt., 982 F.2d 1554, 1560–61 (Fed. Cir. 1992). To
meet this burden, OPM must establish that: (1) notice
BRIGGS v. OPM 6
was actually sent; 1 and (2) the contents of the notice were
sufficient to inform the annuitant of his election rights.
Id. at 1561; see also Schoemakers v. Office of Pers. Mgmt.,
180 F.3d 1377, 1380 (Fed. Cir. 1999) (“[T]he burden is
upon OPM to show that notice was sent, and the contents
thereof.” (citation omitted) (internal quotation marks
omitted)).
Although OPM cannot meet this burden merely by
submitting a letter stating that annual notice was sent to
the annuitant, it can meet this burden by providing
testimony or an affidavit of a person familiar with how
annual notices are prepared and sent. U Schoemakers,
180 F.3d at 1380–81 (citing Darsigny v. Office of Pers.
Mgmt., 787 F.2d 1555, 1559 (Fed. Cir. 1986)). In Schoe-
makers, for example, we deemed sufficient to meet this
burden an affidavit, from the manager of the printing and
distribution of forms and notices for OPM, discussing how
notices were prepared by the automated computer system,
and averring that “ ‘[g]eneral notices regarding survivor
elections were sent to all annuitants’ and that, as a result
of the procedures OPM followed, ‘a notice was sent to each
and every annuitant on [OPM’s] rolls at the time of each
mailing.’ ” Id. at 1381 (alterations in original). To estab-
lish the contents of the notice, the Government may
proffer a copy of the form notice that was sent to annui-
tants. See id. at 1380.
When OPM is able to establish “through credible evi-
dence that it is more probable than not that the annual
notice was sent,” the burden shifts to the petitioner to
establish that the annuitant never received notice.
Brush, 982 F.2d at 1561; see also Schoemakers, 180 F.3d
1 Once OPM establishes that the notices were sent
to the annuitant, the notices are presumed to have been
received. Brush, 982 F.2d at 1561.
7 BRIGGS v. OPM
at 1380. The petitioner “must put forth such credible
testimony or other evidence tending to support the con-
tention that the annuitant in question did not receive the
annual notice.” Brush, 982 F.2d at 1561. If the petitioner
comes forward with such evidence, the Board must de-
termine “whether it will credit the [petitioner’s evidence],
and whether that testimony overcomes the presumption
that the notice was received.” Id.
On appeal, Ms. Briggs argues that OPM did not prove
that Mr. Briggs received annual notice. 2 Because the
Government concedes that substantial evidence supports
the Board’s finding that Mr. Briggs intended to provide
Ms. Briggs with survivor annuity benefits, the only issue
on appeal is whether substantial evidence supports the
Board’s determination that OPM provided Mr. Briggs
with annual notice of his election rights.
Before the Board, OPM submitted an affidavit stat-
ing, “that it sent general notices providing information
regarding survivor elections to all annuitants on various
dates, and . . . that such notice was sent in December
2009–while Mr. Briggs was still alive and after the di-
vorce.” Initial Decision, slip op. at 4. The affidavit ex-
plains, moreover, how the list of addresses to which OPM
sent notices was created and how the computer system
2 It is unclear whether Ms. Briggs also argues that,
in the alternative, if her husband did in fact receive the
December 2009 notice that, because Mr. Briggs’ medical
condition prevented him from being able to understand
the notice, the two-year statutory period for requesting a
survivor annuity should be waived. To the extent Ms.
Briggs raises this argument, we must reject it. See
Schoemakers, 180 F.3d at 1382 (holding that the two-year
statutory period for requesting a survivor annuity for a
new spouse who was married after the annuitant’s re-
tirement could not be waived because of the annuitant’s
mental condition).
BRIGGS v. OPM 8
created mailings from the “Mastery Annuity Roll.” Id.
Ms. Briggs testified that the address that OPM had on file
for Mr. Briggs was his residence at the time in question.
See id., slip op. at 5. Finally, the Government attached a
copy of the form notice sent to annuitants. Resp’t’s App.
23–25. This notice informed the annuitant that a divorce
terminated a prior survivor election and that a new
election needed to be made to within two years from the
date of the divorce to enable a former spouse to receive
survivor benefits. Id. at 24. We have previously held that
the language in this form provides adequate notice that
an annuitant must reelect within two years of divorce to
provide survivor annuity benefits. See Downing, 619 F.3d
at 1378 & n.2. This evidence is sufficient to establish that
OPM sent adequate annual notice to Mr. Briggs. See
Schoemakers, 180 F.3d at 1380–81. The burden, thus,
shifted to Ms. Briggs to present evidence that Mr. Briggs
never received the December 2009 notice.
To rebut the presumption that Mr. Briggs received
the December 2009 notice, Ms. Briggs offers a letter from
her son, Kevin Briggs, who took care of Mr. Briggs during
the relevant time period. This letter is insufficient for
three reasons. First, the letter is not a sworn affidavit.
Second, it was never presented to the Board. The letter is
not, therefore, record evidence. Lastly, even if we could
consider the contents of the letter, it is still insufficient to
establish that Mr. Briggs did not receive the December
2009 notice. In the two-sentence letter, Kevin Briggs
states that “[Mr. Briggs] could not do much for himself I
did his meals, his appointments, his prescriptions, his
mail, his bills and anything else he needed me to do.”
Pet’r’s Reply App. 16. He then states that “I want to
confirm that [Mr. Briggs] did not receive a form from
OPM regarding changes in his retirement annuity status,
if he had he would have certainly made the change for my
9 BRIGGS v. OPM
Mother to remain as his surviving former spouse.” Id.
This letter fails to establish that Mr. Briggs did not
receive the December 2009 notice. First, as evidenced by
the final sentence of the letter, Kevin Briggs does not
state unequivocally that his father did not receive the
notice. Second, to the extent that Kevin Briggs is at-
tempting to make such an unequivocal statement, his
certainty is based upon his belief that, if Mr. Briggs had
received the December 2009 notice, he would have sent
the required election to OPM. Such a conditional state-
ment is insufficient to establish that Mr. Briggs did not
receive the December 2009 notice. See Schoemakers, 180
F.3d at 1381 (rejecting a conditional affidavit that merely
established that petitioner’s wife did not receive the
required annual notice and not that her husband, the
annuitant, did not receive it).
Although this case presents us with a straightforward
legal question, its disposition is a difficult one. We are
sympathetic to Ms. Briggs’ plight. The record makes clear
that Mr. Briggs intended to provide his ex-wife with
survivor annuity benefits and that, during their marriage,
he reduced his own annuity benefits so as to make that
happen. Unfortunately, Mr. Briggs failed to follow the
procedures necessary to bring this outcome to fruition.
Other than noting our sympathy for Ms. Briggs, there is
nothing we can do to alter the outcome dictated by the
system Congress put in place. Here, to establish her
entitlement to benefits, Ms. Briggs was required to estab-
lish that, among other things, Mr. Briggs did not receive
the required annual notice. Substantial evidence supports
the Board’s finding that OPM proved that Mr. Briggs
received adequate annual notice in December 2009,
however. Accordingly, Ms. Briggs is not entitled to re-
ceive survivor annuity benefits. We must affirm.
BRIGGS v. OPM 10
COSTS
Each party shall bear its own costs.
AFFIRMED