Wishneski v. Office of Personnel Management , 592 F. App'x 926 ( 2014 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
PEGGY ANN WISHNESKI,
Petitioner,
v.
OFFICE OF PERSONNEL MANAGEMENT,
Respondent.
______________________
2014-3128
______________________
Petition for review of the Merit Systems Protection
Board in No. AT-0831-13-0194-I-1.
______________________
Decided: November 7, 2014
______________________
PEGGY ANN WISHNESKI, of Palm Coast, Florida, pro se.
JOSEPH E. ASHMAN, Trial Attorney, Commercial Liti-
gation Branch, Civil Division, United States Department
of Justice, of Washington, DC, for respondent. With him
on the brief were STUART F. DELERY, Assistant Attorney
General, ROBERT E. KIRSCHMAN, JR., Director, and
DONALD E. KINNER, Assistant Director.
______________________
Before NEWMAN, CLEVENGER, and DYK, Circuit Judges.
2 WISHNESKI v. OPM
PER CURIAM
Peggy A. Wishneski appeals the Merit Systems Pro-
tection Board’s (“Board”) decision of April 11, 2014, af-
firming the Office of Personnel Management’s (“OPM”)
decision that Mrs. Wishneski could not elect survivor
annuity for her spouse because she did not submit her
election within the statutory timeframe. We affirm.
I
Peggy A. Ridenour retired from federal service under
Civil Service Retirement law on June 1, 2001. At the time
of her retirement she was unmarried. On October 4, 2008,
she married Robert Wishneski, and within a month of her
marriage Mrs. Wishneski elected to add her husband to
her health benefits.
In addition to adding her husband to her health bene-
fits, Mrs. Wishneski was allowed to elect a survivor
annuity for her husband. 5 U.S.C. § 8339(k)(2) (2012).
With a survivor annuity, a retiree’s spouse continues to
receive benefits after the retiree’s death. See Belanger v.
Office of Personnel Management, 1 F.3d 1223, 1225 (Fed.
Cir. 1993) (explaining the difference between “retirement
annuity” and “survivor annuity”). When a retiree elects a
survivor annuity, a portion of his or her regular monthly
retirement payments are set aside, and after the retiree
dies that reserved portion of the annuity is disbursed to
the surviving spouse on a monthly basis. A survivor
annuity reduces the retiree’s monthly retirement annuity,
and therefore the retiree must make an affirmative
election to establish it. Id. The government withholds
from these annuity payments to cover costs of the retiree
and spouse’s health benefits. 5 U.S.C. § 8906.
A retiree may elect a survivor annuity if he or she
marries after retirement, but the retiree must make the
election in a signed writing within two years of the mar-
riage. 5 U.S.C. § 8339(k)(2). Therefore, Mrs. Wishneski
WISHNESKI v. OPM 3
had until October 4, 2010, to file for a survivor annuity.
Additionally, OPM has a statutory obligation to inform
each annuitant, on an annual basis, of his or her rights of
election under 5 U.S.C. § 8339(j) & (k)(2). Pub. L. 95-317 §
3, 92 Stat. 382 (1978).
In December 2008 and 2009, OPM sent Mrs. Wish-
neski a required annual notice containing a statement of
Survivor Annuity Election Rights. Those notices included
a section explaining her eligibility and time limits for
electing survivor annuity for a spouse married after
retirement. Elsewhere on the annual notice appears the
following statement: “Health Benefits Coverage for Your
Surviving Spouse – In the event of your death, your
spouse will have health benefits coverage only if you:
[e]lect survivor benefits for your spouse, and [h]ave family
health benefits coverage when you die. There are no
exceptions to these two requirements.” Respondent’s
Informal Brief & Appendix at A32, A34, Wishneski v.
OPM, No. 14-3128 (Fed. Cir. Aug. 4, 2014).
On February 25, 2011, Mrs. Wishneski wrote to OPM
requesting survivor benefits for her husband. This was
two years and four months after her marriage, and out-
side the statutory timeframe during which she was al-
lowed to make the election. Mrs. Wishneski stated that
she was unaware that she had to elect survivor benefits in
order for her husband’s health benefits to continue after
her death. OPM denied Mrs. Wishneski’s request for
survivor annuity, because she did not file it within two
years of the marriage. Respondent’s Informal Brief &
Appendix at A26, Wishneski v. OPM, No. 14-3128 (Fed.
Cir. Aug. 4, 2014). In her June 26, 2011, request to OPM
for reconsideration, Mrs. Wishneski admits that “I do
realize now” that the notices she received stated the
requirement concerning health benefits quoted above.
OPM denied her request for reconsideration.
4 WISHNESKI v. OPM
Mrs. Wishneski appealed OPM’s denial to the Board.
The administrative law judge affirmed OPM’s decision,
because Mrs. Wishneski had failed to make a timely
election to provide her spouse with a survivor annuity.
Wishneski v. Office of Personnel Management, No. AT-
0831-13-0194-I-1 (M.S.P.B. Apr. 10, 2013) (Initial Deci-
sion). Furthermore, the ALJ concluded that OPM had
sent adequate notice to Mrs. Wishneski regarding her
post retirement election rights. Mrs. Wishneski filed a
petition for review of this initial decision. The Board
denied her petition and affirmed the ALJ. Wishneski v.
Office of Personnel Management, No. AT-0831-13-0194-I-1
(M.S.P.B. Apr. 11, 2014) (Final Order). The Board reiter-
ated that Mrs. Wishneski was required to elect the survi-
vor annuity within two years of her marriage, and OPM
cannot waive this requirement. Moreover, here OPM
complied with the statutory requirement that it notify
annuitants of their rights of election. Finally, the Board
concluded that there is no requirement for OPM to specif-
ically address health benefits in its annual notices. Pub.
L. 95-317 § 3.
On appeal, Mrs. Wishneski alleges that OPM and
staff were negligent in failing to inform her more clearly
that she needed to elect survivor annuity within two years
of her marriage in order for her husband to receive health
benefits after her death. She is seeking to have her hus-
band’s health benefits continued in the event of her death.
II
This Court must affirm a Board decision unless it is
found to be “(1) arbitrary, capricious, an abuse of discre-
tion, or otherwise not in accordance with the 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); Simpson v.
Office of Personnel Management, 347 F.3d 1361, 1363–64
(Fed. Cir. 2003).
WISHNESKI v. OPM 5
A federal employee who was unmarried at the time of
retirement, but would have otherwise been permitted to
elect a survivor annuity, may elect a survivor annuity if
he or she marries after retirement. 5 U.S.C. § 8339(k)(2).
To make this election, the employee must provide it in a
signed writing to OPM within two years of the marriage.
Id. The agency cannot waive this filing deadline require-
ment. Schoemakers v. Office of Personnel Management,
180 F.3d 1377, 1382 (Fed. Cir. 1999). However, OPM has
a statutory obligation to inform each annuitant, on an
annual basis, of his or her rights of election under 5
U.S.C. § 8339(j) & (k)(2). Pub. L. 95-317 § 3. If OPM fails
to comply with the notice requirement, then the agency
cannot deny an annuity election filed outside the statuto-
ry timeframe, as long as there is evidence the retiree
wished his or her spouse to receive the benefit. Wood v.
Office of Personnel Management, 241 F.3d 1364, 1366
(Fed. Cir. 2001).
In this case, Mrs. Wishneski did not file her election
for survivor annuity within the two year window, but she
may still be entitled to elect a survivor annuity if OPM
failed to notify her of her election rights. In December
2008 and 2009, OPM sent a notice to annuitants, includ-
ing Mrs. Wishneski, which contained a statement of
survivor annuity election rights. Mrs. Wishneski does not
dispute that she received the annual notices. Nor does she
dispute the substance of the notices with respect to elec-
tion of a survivor annuity.
Instead, Mrs. Wishneski contends that the substance
of the notice was deficient. As before the Board, she
argues that the notice she received concerning the connec-
tion between a retirement annuity and health benefits
was “poorly designed and thus did not clearly communi-
cate that the 2-year window for election of a survivor
annuity was related to the continuation of health-related
benefits for the survivor after the retiree dies.” Wishneski
6 WISHNESKI v. OPM
v. Office of Personnel Management, No. AT-0831-13-0194-
I-1 at 3 (M.S.P.B. Apr. 11, 2014) (Final Order).
Here, as before the Board, the government argues
that the agency’s obligation concerning notices regarding
survivor annuities extends only to information about
obtaining the survivor annuity, not to benefits that may
be collaterally affected by the decision to obtain or forego
a survivor annuity. The government rests its argument on
the statute which mandates the agency’s annual survivor
annuity election notices, and does so only with reference
to annuity election requirements. See Pub. L. 95-31 §3.
In this case, we need not decide if the agency has a le-
gal obligation to notify those eligible to elect a survivor
annuity of the relationship of the survivor annuity to
health benefits. Mrs. Wishneski recognizes that she was
given notice concerning that relationship, but faults the
notice as lacking clarity. We disagree with her assessment
of the notice. The text, quoted above, is set off from the
balance of the information in the notice by a line box
drawn around the text, which highlights its presence. We
therefore agree with the Board’s conclusion that the
“notice issued in this case is sufficient.” Wishneski v.
Office of Personnel Management, No. AT-0831-13-0194-I-1
at 4 (M.S.P.B. Apr. 11, 2014) (Final Order).
CONCLUSION
Because OPM has established that it sent annual no-
tices to Mrs. Wishneski regarding her right to elect a
survivor annuity, these notices contained a statement
that she had to elect survivor benefits in order for her
husband’s health benefits to continue after her death, and
because she failed to make an election within the desig-
nated two year timeframe, the decision of the Board is
affirmed.
AFFIRMED
WISHNESKI v. OPM 7
COSTS
Each side shall bear its own costs.