Carinio v. Office of Personnel Management ( 2004 )

NOTE: Pursuant to Fed. Cir. R. 47.6, this disposition
is not citable as precedent. It is a public record.
United States Court of Appeals for the Federal Circuit
04-3154
LIGAYA I. CARINIO,
Petitioner,
v.
OFFICE OF PERSONNEL MANAGEMENT,
Respondent.
__________________________
DECIDED: November 4, 2004
__________________________
Before CLEVENGER, RADER and BRYSON, Circuit Judges.
PER CURIAM.
Ligaya I. Carinio seeks review of the final decision of the Merit Systems
Protection Board (“Board”) affirming the reconsideration decision of the Office of
Personnel Management (“OPM”) denying her request for survivor benefits based on her
late husband’s government service. Carinio v. Office of Pers. Mgmt.,
No. SE0831020347-I-1 (Jan. 21, 2004). We affirm.
I
Under 5 U.S.C. ' 8339(j)(5)(C)(i), Ms. Carinio’s late husband had two years from
the date of his marriage to Ms. Carinio in which to elect her as a beneficiary of his death
benefits, and thereby entitle her to survivor benefits. In her appeal to the Board,
Ms. Carinio conceded that her late husband had never made the required election in
order to entitle her to the benefits she seeks. She instead challenged whether OPM
had ever sent Mr. Carinio the required notice informing him of his right to make the
election in her favor. In cases where it can be shown that OPM failed to give the
required notice, the time period for making the requisite election may be waived. See
Brush v. Office of Pers. Mgmt., 982 F.2d 1554, 1559-60 (Fed. Cir. 1992).
OPM responded to Ms. Carinio’s challenge by evidence showing that it in fact
had sent the required notices to Mr. Carinio. In response to Ms. Carinio’s argument that
OPM may have failed to update its address for Mr. Carinio to reflect his Philippines
address, the record showed that Mr. Carinio had in fact received his monthly annuity
checks at his address in the Philippines. This evidence showed that Mr. Carinio had
updated his address with OPM. Based on the record before it, the Board concluded
that OPM had mailed the required notices to Mr. Carinio in 1989 and 1990 to his
Philippines address. That being the case, there is no ground upon which Ms. Carinio
could claim entitlement to survivor benefits, since there is no way to escape from the
failure of Mr. Carinio to have made the necessary election on time. The Board thus
affirmed OPM’s reconsideration decision.
II
We must affirm the final decision of the Board unless we determine that it is
arbitrary, capricious, and abuse of discretion or otherwise not in accordance with law.
Where the Board’s final decision rests on findings of fact, those findings must be
supported by substantial evidence. 5 U.S.C. ' 7703(c) (2000).
In this case, the Board’s final decision rests on its finding that OPM did send the
required notices to Mr. Carinio informing him of his rights to elect in Ms. Carinio’s favor.
04-3154 2
Substantial evidence supports that finding; indeed there is no evidence to the contrary.
We therefore must affirm the final decision of the Board, and we do so.
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