Taylor v. Office of Personnel Management , 662 F. App'x 915 ( 2016 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
ALEJANDRA S. TAYLOR,
Petitioner
v.
OFFICE OF PERSONNEL MANAGEMENT,
Respondent
______________________
2016-1822
______________________
Petition for review of the Merit Systems Protection
Board in No. SF-0831-15-0521-I-1.
______________________
Decided: September 14, 2016
______________________
ALEJANDRA S. TAYLOR, FPO, AP, pro se.
RETA EMMA BEZAK, Commercial Litigation Branch,
Civil Division, United States Department of Justice,
Washington, DC, for respondent. Also represented by
BENJAMIN C. MIZER, ROBERT E. KIRSCHMAN, JR., PATRICIA
M. MCCARTHY.
______________________
Before MOORE, TARANTO, and HUGHES, Circuit Judges.
2 TAYLOR v. OPM
PER CURIAM.
Alejandra Taylor appeals the Merit Systems Protec-
tion Board’s decision denying her claim for survivor
annuity benefits after her husband, James Taylor, passed
away. Because Mr. Taylor failed to timely elect Mrs.
Taylor as his beneficiary, we affirm the Board’s decision.
I
In 1991, Mr. Taylor, who at the time was married to a
different spouse, retired from federal service. With the
consent of his then-spouse, he elected to receive a full
retirement annuity payable during his lifetime with no
reduction for a survivor annuity. Thereafter, he divorced
his prior spouse, and married Alejandra Taylor in 1999.
In 2005, six years after his remarriage, Mr. Taylor
wrote to the Office of Personnel Management requesting
that his survivor annuity benefit be made to Mrs. Taylor.
OPM denied his request because he did not seek to
change his election within two years of his remarriage, as
required by the relevant statute.
After Mr. Taylor passed away in 2006, his widow ap-
plied for death benefits and received a lump sum repre-
senting the accrued annuity due Mr. Taylor for the partial
month during which he was still alive.
Six years later, Mrs. Taylor reapplied for death bene-
fits. In February 2013, OPM denied her claim because
she had already received all the death benefits owed.
Further, construing her application as one for survivor
benefits, OPM noted that Mr. Taylor had not elected a
survivor annuity benefit within the statutorily prescribed
two-year period after his marriage to Mrs. Taylor. There-
fore, OPM concluded that Mrs. Taylor was not entitled to
a survivor benefit.
In a subsequent letter, Mrs. Taylor again requested a
survivor benefit and OPM again denied her claim. Mrs.
TAYLOR v. OPM 3
Taylor appealed to the Board. In an initial order, the
administrative judge held that Mrs. Taylor was not enti-
tled to receive survivor benefits because OPM had proper-
ly notified Mr. Taylor of the two-year statutory limit to
change a survivor annuity benefit, and his failure to
timely comply could not be excused. The Board denied
Mrs. Taylor’s petition for review and affirmed the initial
decision. We have jurisdiction under 28 U.S.C.
§ 1295(a)(9) (2012).
II
We may set aside a Board decision only if it is “(1) ar-
bitrary, capricious, an abuse of discretion, or otherwise
not in accordance with law; (2) obtained without proce-
dures required by law, rule, or regulation having been
followed; or (3) unsupported by substantial evidence.”
5 U.S.C. § 7703(c) (2012). Mrs. Taylor bears the burden of
proving entitlement to annuity benefits. Cheeseman v.
Office of Pers. Mgmt., 791 F.2d 138, 141 (Fed. Cir. 1986).
Mrs. Taylor challenges the Board’s determination that
she is not entitled to a survivor annuity. We agree with
the Board. As a retired, remarrying annuitant, Mr.
Taylor was required to submit a written election within
two years after his remarriage if he wished to elect a
reduced retirement annuity and provide for a survivor
annuity for Mrs. Taylor. 5 U.S.C. §§ 8339(j)(5)(C)(i), (k)(2)
(2012); see Schoemakers v. Office of Pers. Mgmt., 180 F.3d
1377, 1382 (Fed. Cir. 1999). Substantial evidence sup-
ports the Board’s finding that even though OPM notified
Mr. Taylor of the two-year statutory period to change his
election, he did not attempt to elect a reduced retirement
annuity with a survivor annuity for Mrs. Taylor until
more than six years after they married—i.e., well after
the mandatory statutory deadline. Therefore, Mrs. Taylor
is not entitled to survivor annuity benefits.
4 TAYLOR v. OPM
We have considered all other arguments Mrs. Taylor
presents and find them unpersuasive. Accordingly, we
affirm the Board’s decision. 1
AFFIRMED
No costs.
1 We also deny Mrs. Taylor’s pending motion for ap-
pointment of counsel.