Miller v. Office of Personnel Management , 407 F. App'x 446 ( 2011 )

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NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
__________________________
SANDRA H. MILLER,
Petitioner,
v.
OFFICE OF PERSONNEL MANAGEMENT
Respondent.
__________________________
2010-3170
__________________________
Petition for review of the Merit Systems Protection
Board in case No. CH0831090682-I-1.
___________________________
Decided: January 18, 2011
___________________________
SANDRA H. MILLER, of Blue Eye, Missouri, pro se.
DANIEL B. VOLK, Trial Attorney, Commercial Litiga-
tion Branch, Civil Division, United States Department of
Justice, of Washington, DC, for respondent. With him on
the brief were TONY WEST, Assistant Attorney General,
JEANNE E. DAVIDSON, Director, and REGINALD T. BLADES,
JR., Assistant Director. Of counsel on the brief was PAUL
N. ST. HILLAIRE, Office of General Counsel, Office of
Personnel Management, of Washington, DC.
MILLER v. OPM 2
__________________________
Before RADER, Chief Judge, and LINN and MOORE, Circuit
Judges.
PER CURIAM.
Sandra H. Miller (Mrs. Miller) appeals the decision of
the Merit Systems Protection Board (Board) affirming the
Office of Personnel Management’s (OPM) decision finding
that she was not entitled to a survivor annuity based on
the Federal service of her late spouse. Sandra H. Miller
v. Office of Pers. Mgmt., No. CH-0831-09-0682-I-1
(M.S.P.B. June 24, 2010). For the reasons discussed
below, this court affirms.
BACKGROUND
Frank Miller (Mr. Miller) retired from Federal service
under the Civil Service Retirement System on March 3,
1984. Upon his retirement, Mr. Miller elected a survivor
annuity benefit for his then spouse, Betty L. Miller. Betty
Miller passed away on September 13, 2001, and Mr.
Miller married Sandra Miller on August 17, 2002.
For two years following his remarriage, Mr. Miller
was eligible to elect a survivor annuity for Mrs. Miller. 5
U.S.C. § 8339(j)(5)(C)(i). OPM, however, has no record of
Mr. Miller requesting to elect a survivor annuity for Mrs.
Miller. After remarrying, Mr. Miller did change some of
his benefits. For example, on October 21, 2002, OPM
received a Designation of Beneficiary SF-2808 form from
Mr. Miller designating Mrs. Miller to receive 100% of any
accrued annuity payable. The SF-2808 form does not
relate to survivor annuity elections. Also, via a letter
dated February 14, 2005, OPM informed Mr. Miller that
based on his request it changed his health benefits from
3 MILLER v. OPM
“self” to “self and family,” thus providing Mrs. Miller
coverage.
Mr. Miller passed away in 2008 and Mrs. Miller ap-
plied for a survivor annuity as his widow. On November
20, 2008, OPM denied Mrs. Miller’s request because it
had no record of receiving any correspondence from Mr.
Miller electing a survivor annuity for Mrs. Miller. After
Mrs. Miller requested reconsideration, OPM affirmed its
initial decision on May 7, 2009. Mrs. Miller appealed the
decision to the Board. After reviewing Mrs. Miller’s
varying arguments regarding why she was entitled to a
survivor annuity, the Board affirmed the OPM decision.
The Board determined that Mrs. Miller failed to prove
that Mr. Miller submitted an election of a survivor annu-
ity for Mrs. Miller to the OPM or that OPM received such
correspondence. The Board also noted that Mrs. Miller
had advanced three different stories regarding Mr.
Miller’s alleged election of benefits and none of the stories
proved by a preponderance of the evidence that Mr. Miller
made such an election. Mrs. Miller appeals. We have
jurisdiction pursuant to 28 U.S.C. § 1295(a)(9).
DISCUSSION
We must affirm a decision of the Board unless it is
“(1) arbitrary, capricious, an abuse of discretion, or other-
wise not in accordance with law; (2) obtained without
procedures required by law, rule, or regulation having
been followed; or (3) unsupported by substantial evi-
dence.” Dickey v. Office of Pers. Mgmt., 419 F.3d 1336,
1339 (Fed. Cir. 2005).
The election of a survivor annuity in cases where a re-
tired employee remarries after retirement is governed by
5 U.S.C. § 8339(j)(5)(C)(i), which states, inter alia, that:
MILLER v. OPM 4
Upon remarriage, a retired employee or Member
who was married at the time of retirement . . .
may irrevocably elect during such marriage, in a
signed writing received by [OPM] within 2 years
after such remarriage . . . a reduction in the em-
ployee or Member’s annuity . . . for the purpose of
providing an annuity for such employee or Mem-
ber’s spouse in the event such spouse survives the
employee or Member.
Though the statute does not require annuitants to use
any particular form to elect such benefits, the statute does
require a “signed writing” manifesting the annuitant’s
election, which OPM must receive within 2 years of the
retired employee’s remarriage. See Harris v. Office of
Pers. Mgmt., 985 F.2d 549, 550 (Fed. Cir. 1993).
OPM states that it never received any correspondence
from Mr. Miller electing a survivor annuity for Mrs.
Miller, and Mrs. Miller failed to submit a copy of any
request. Contrary to Mrs. Miller’s claims, the Board
considered Mrs. Miller’s allegations including her claim
that Mr. Miller timely filed appropriate paperwork to
elect the survivor annuity and that OPM subsequently
lost or misfiled it. In its opinion, the Board noted Mrs.
Miller’s allegation but found that she failed to prove
either that Mr. Miller submitted an election as required
by the statute or that OPM received such an election from
Mr. Miller. The Board noted that Mrs. Miller did not
state she read the correspondence Mr. Miller allegedly
sent to OPM and the Board determined that it was more
likely that the correspondence sent was related to Mr.
Miller’s request to change his health benefits to include
Mrs. Miller.
The Board also noted that Mrs. Miller’s story regard-
ing her husband’s election of survivor benefits has evolved
5 MILLER v. OPM
over time and that her two earlier stories contradict her
new argument that she saw Mr. Miller timely submit a
proper election. For example, Mrs. Miller claimed in
response to OPM’s initial denial that Mr. Miller contacted
OPM by telephone in October 2004 to change his benefits
and that, after receiving OPM’s February 14, 2005 letter,
Mr. Miller assumed that his survivor benefits had been
changed. Later, in her appeal form to the Board, Mrs.
Miller claimed that Mr. Miller believed his submission of
his SF-2808 designating Mrs. Miller as the beneficiary of
any accrued annuity payable constituted an election of a
survivor annuity. 1 If Mrs. Miller actually believed, as she
now asserts on appeal, that Mr. Miller submitted an
election for a survivor annuity, which OPM subsequently
lost or misplaced, we see no reason she would have earlier
advanced contradictory arguments regarding Mr. Miller’s
intent to elect such a benefit. We find no reversible error
in the Board’s determination that Mrs. Miller failed to
prove that Mr. Miller elected a survivor annuity for her.
Substantial evidence supports the Board’s factual findings
and Mrs. Miller has failed to show that its decision was
arbitrary, capricious, an abuse of discretion, or otherwise
not in accordance with law. 2
1 Mrs. Miller does not appeal the Board’s rejection
of these two arguments.
2 Mrs. Miller also submitted copies of “Explanation
of Benefits” forms from Anthem Blue Cross and Blue
Shield alleging that her health insurance continued
beyond Mr. Miller’s death in support of her allegation that
OPM lost or misplaced Mr. Miller’s election of a survivor
annuity. This Court expresses no opinion on her contin-
ued entitlement to health insurance. Because substantial
evidence supports that Mr. Miller did not elect a survivor
annuity for Mrs. Miller as required by
5 U.S.C. § 8339(j)(5)(C)(i) we must affirm. The fact that
she continues to receive health benefits does not establish
MILLER v. OPM 6
CONCLUSION
For the reasons discussed above, we affirm the
Board’s holding denying Mrs. Miller entitlement to a
survivor annuity benefit.
AFFIRMED
COSTS
Each party shall bear its own costs.
that Mr. Miller made the proper annuity election in
writing as required by the statute.