McDonald v. Office of Personnel Management , 489 F. App'x 446 ( 2012 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
__________________________
BETTY L. MCDONALD,
Petitioner,
v.
OFFICE OF PERSONNEL MANAGEMENT,
Respondent.
__________________________
2012-3072
__________________________
Petition for review of the Merit Systems Protection
Board in case no. CH0831110436-I-1.
____________________________
Decided: July 12, 2012
____________________________
BETTY L. MCDONALD, Calumet Park, Illinois, pro se.
JOSEPH A. PIXLEY, Trial Attorney, Commercial Litiga-
tion Branch, Civil Division, United States Department of
Justice, of Washington, DC, for respondent. With him on
the brief were STUART F. DELERY, Acting Assistant Attor-
ney General, JEANNE E. DAVIDSON, Director, and
REGINALD T. BLADES, JR., Assistant Director.
__________________________
MCDONALD v. OPM 2
Before BRYSON, O’MALLEY, and WALLACH, Circuit Judges.
PER CURIAM.
Betty McDonald appeals the Merit Systems Protection
Board’s (“Board”) decision affirming the administrative
judge’s (“AJ”) initial decision affirming the Office of
Personnel Management’s (“OPM”) denial of Ms. McDon-
ald’s application for a survivor annuity benefit. We affirm
the Board’s decision because substantial evidence sup-
ports the Board’s affirmance of the AJ’s finding that Ms.
McDonald’s late husband did not elect a survivor benefit
for Ms. McDonald.
I
Oliver McDonald retired from his position as a distri-
bution clerk for the United States Postal Service in No-
vember 2001. He was not married at the time of his
retirement. He married Betty McDonald in April 2003.
He died in June 2009, survived by his wife.
When Mr. McDonald retired, he received a pension,
which provided several options for disbursement. He
chose an annuity payable only during his lifetime. During
each year that he received his annuity, Mr. McDonald
received a notice from OPM regarding survivor elections.
The notice explained how to create a survivor annuity
benefit for a spouse whom the annuitant married after
retirement, and stated that this election was required to
be made within two years of the date of marriage. 1 The
1 The process that Mr. McDonald was required to
follow to create a survivor annuity benefit for Ms. McDon-
ald was described in the notice:
2. Survivor Annuity Benefits for a Spouse You
Marry After Retirement
3 MCDONALD v. OPM
AJ found that Mr. McDonald received this notice twice
within two years after marrying Ms. McDonald—in
December 2003 and again in December 2004—but that he
did not elect to receive a reduced annuity to provide Ms.
McDonald with a survivor annuity benefit.
After Mr. McDonald’s death in July 2009, Ms.
McDonald applied for a survivor annuity benefit. OPM
denied her application, finding that Mr. McDonald did not
elect a survivor benefit. Ms. McDonald requested that
OPM reconsider its decision, but OPM denied this re-
quest. Ms. McDonald appealed this denial to the Board in
March 2011. On appeal to the Board, she did not contest
OPM’s finding that Mr. McDonald did not elect a survivor
annuity benefit. Rather, she argued that the agency
should have been more sympathetic because “I was never
aware that my late husband did not report our marriage
until his death.” The AJ found that Mr. McDonald was
Eligibility and Time Limits – You are eligible to
elect a reduced annuity to provide a survivor an-
nuity benefit for a spouse you married after re-
tirement if you send a signed request to OPM
within 2 years after the date of your marriage.
With some exceptions retirees may also make this
election within 2 years after a former spouse loses
entitlement to a survivor annuity benefit; we will
notify you if any exceptions apply in your situa-
tion.
...
How to Make an Election – Call or write to OPM
at the address on this notice within the two-year
time limit, state the election you want to make,
include proof of your marriage, and sign your re-
quest. We will send you detailed information
about the effect of the election, the exact amount
of your annuity if you decide to make the election
and an election form to sign and return to us if
you want to take this action.
MCDONALD v. OPM 4
bound by the filing deadline if he received adequate notice
of the deadline, and that the annual notices sent by OPM
constituted adequate notice. The AJ explained that the
statutory deadline could not be waived on equitable
grounds and affirmed OPM’s decision: “Although Ms.
McDonald’s situation is unfortunate, there is no relief the
Board can offer her. Oliver McDonald simply failed to
make a timely election to provide for survivor benefits
within two years after their marriage.”
The Board affirmed the AJ’s initial decision, finding
no new evidence or legal error. The Board also noted that
Ms. McDonald submitted a blank appeal form. Ms.
McDonald now appeals to this court.
II
Our standard of review in an appeal from a Board de-
cision is limited by statute. We may reverse a decision of
the Board only if it is “(1) arbitrary, capricious, an abuse
of discretion, or otherwise not in accordance with law; (2)
obtained without procedures required by law, rule, or
regulation having been followed; or (3) unsupported by
substantial evidence.” 5 U.S.C. § 7703(c) (2006).
In her informal brief, Ms. McDonald argues that the
Board failed to take into account her marriage to Mr.
McDonald and that the Board’s decision should be re-
versed on equitable grounds. The Board recognized that
Ms. McDonald was married to Mr. McDonald. Their
marriage alone, however, is insufficient to provide Ms.
McDonald a survivor annuity benefit. The Board cor-
rectly explained that such annuities are governed by 5
U.S.C. § 8339, which requires an annuitant, who is un-
married at the time of retirement and then marries after
retirement, to elect to create a survivor annuity benefit
within two years of the date of the marriage in order to
5 MCDONALD v. OPM
provide his spouse with such a benefit. 2 5 U.S.C.
§ 8339(k)(2) (2006). Because it is undisputed that Mr.
McDonald did not elect to do so, substantial evidence
supports the Board’s affirmance of the AJ’s conclusion
that Ms. McDonald is not entitled to a survivor annuity
benefit.
The Board recognized an exception to this deadline:
when OPM does not notify the annuitant of his election
rights. Schoemakers v. Office of Pers. Mgmt., 180 F.3d
1377, 1380 (Fed. Cir. 1999). Ms. McDonald, however,
does not dispute that OPM notified Mr. McDonald of his
election rights twice between his marriage to Ms. McDon-
ald and the two-year deadline. Mr. McDonald did not
merely miss the deadline in electing to create a survivor
annuity benefit; he did not elect to create a survivor
benefit at all.
The Board also correctly held that it could not reverse
OPM’s decision and provide Ms. McDonald with an annu-
ity on equitable grounds. The deadline provided in
§ 8339(k)(2) cannot be waived. Schoemakers, 180 F.3d at
1382 (“Neither courts nor administrative agencies, how-
ever, have the authority to waive requirements (including
2 “An employee or Member, who is unmarried at the
time of retiring under a provision of law which permits
election of a reduced annuity with a survivor annuity
payable to such employee or Member’s spouse and who
later marries, may irrevocably elect, in a signed writing
received in the Office within 2 years after such employee
or Member marries or, if later, within 2 years after the
death or remarriage of any former spouse of such em-
ployee or Member who was entitled to a survivor annuity
under section 8341(h) of this title (or of the last such
surviving former spouse, if there was more than one), a
reduction in the retired employee or Member’s current
annuity as provided in subsection (j) of this section.” 5
U.S.C. § 8339(k)(2)(A) (2006).
MCDONALD v. OPM 6
filing deadlines) that Congress has imposed as a condition
to the payment of federal money.”). Any payment of
money from the Treasury must be authorized by statute.
Office of Pers. Mgmt. v. Richmond, 496 U.S. 414, 424
(1990). Mr. McDonald did not satisfy the statutory dead-
line for creating a survivor annuity benefit. OPM had no
authority to grant Ms. McDonald such a benefit and,
therefore, correctly denied her request.
For the foregoing reasons, we find that the Board’s
decision is in accordance with the law and supported by
substantial evidence. The Board’s decision is affirmed.
AFFIRMED
COSTS
Each party shall bear its own costs.