Antonio Abe v. Office of Personnel Management ( 2023 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ANTONIO L. ABE, DOCKET NUMBER
Appellant, SF-0831-16-0716-I-1
v.
OFFICE OF PERSONNEL DATE: January 5, 2023
MANAGEMENT,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Consuelo T. Abe, Malabon City, Philippines, for the appellant.
Cynthia Reinhold, Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
affirmed the reconsideration decision of the Office of Personnel Management
(OPM) denying his request to elect a survivor annuity under the Civil Service
Retirement System (CSRS) for his current spouse. Generally, we grant petitions
1
A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
2
such as this one only in the following circumstances: the initial decision contains
erroneous findings of material fact; the initial decision is based on an erroneous
interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115).
After fully considering the filings in this appeal, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
review. Therefore, we DENY the petition for review. Except as expressly
MODIFIED by this Final Order to reflect the correct statutory provision
applicable to this case, we AFFIRM the initial decision.
BACKGROUND
¶2 The appellant retired under the CSRS in April 1972. Initial Appeal File
(IAF), Tab 1 at 5, Tab 8 at 28. At the time of his retirement, the appellant was
married and elected a survivor annuity for his then -spouse. IAF, Tab 8 at 28.
The appellant’s then-spouse died in July 2008, and the appellant remarried in
July 2009. Id. at 25-27. By letter dated June 6, 2015, the appellant informed
OPM that his former spouse was deceased and he had remarried, and requested
that “appropriate action be taken on matters immediat ely.” Id. at 22. OPM
construed the appellant’s request as one to provide survivor annuity benefits for
his current spouse and denied the request because the appellant did not notify
OPM of an election of a reduced annuity with a survivor benefit within 2 years of
the marriage. Id. at 20. The appellant requested reconsideration of OPM’s
decision, stating that he failed to request a survivor annuity for his current spouse
within 2 years of their marriage because weather conditions initially prevented
3
him from mailing the request, and then he had forgotten to mail it, citing his age
as the reason for his forgetfulness. Id. at 16, 19. On July 14, 2016, OPM issued a
reconsideration decision affirming its initial decision. Id. at 8-9.
¶3 The appellant timely filed a Board appeal of OPM’s reconsideration
decision. 2 IAF, Tab 1. He did not request a hearing. Id. at 1. The administrative
judge issued an Order Closing the Record finding that the Board has jurisdiction
over the appeal, notifying the appellant of the requirements to prove his
eligibility to elect a survivor annuity for his current spouse, and providing the
parties with the opportunity to submit additional evidence and argument prior to
the date on which the record was scheduled to close. IAF, Tab 9 at 1-4.
¶4 The administrative judge issued an initial decision affirming OPM’s
reconsideration decision, based on the written record. IAF, Tab 11, Initial
Decision (ID). The administrative judge found that the appellant was required by
statute to make a written request to elect a survivor annuity for his current spouse
within 2 years of their marriage but that he did not submit a request until 2015
and that therefore, he did not timely elect a survivor annuity for his current
spouse. ID at 3-4. The administrative judge further found that the appellant did
not show a basis for waiving the deadline to elect a survivor annuity. ID at 4-7.
Specifically, she found that the statute setting forth the filing deadline did not
provide for a waiver of the deadline, that OPM did not misinform the appellant of
the necessary steps to make the election, and that OPM complied with the
statutory requirement to annually inform the appellant of his election rights. Id.¶5 The appellant has timely filed a petition for review in which he requests
leniency concerning his failure to timely elect a survivor annuity and argues that
it is not in the interest of justice to deny his request because he is more than
2
The appellant received OPM’s July 14, 2016 reconsideration decision on July 31,
2016. IAF, Tab 1 at 3, Tab 8 at 7. He mailed his appeal, postmarked August 16, 2016,
to OPM, which forwarded the appeal to the Board’s Washington Regional Office. IAF,
Tab 1 at 9, 11.
4
90 years old and sickly. 3 Petition for Review (PFR) File, Tab 1 at 2. OPM has
filed a response opposing the petition for review. PFR File, Tab 4. For the
reasons set forth below, we affirm the initial decision, as modified.
DISCUSSION OF ARGUMENTS ON REVIEW
¶6 An individual seeking retirement benefits bears the burden of proving his
entitlement to those benefits by preponderant evidence. Cheeseman v. Office of
Personnel Management, 791 F.2d 138, 140-41 (Fed. Cir. 1986); 5 C.F.R.
§ 1201.56(b)(2)(ii). To meet this burden, the appellant must show that he elected
to provide a survivor annuity for his current spouse in a signed writing received
by OPM within 2 years after his remarriage. 5 U.S.C. § 8339(j)(5)(C)(i); Kirk v.
Office of Personnel Management, 93 M.S.P.R. 547, ¶ 4 (2003).
¶7 Here, the administrative judge found that the appellant married his current
spouse in July 2009 but did not write to OPM to elect a survivor annuity for her
until June 6, 2015, nearly 6 years after the marriage. ID at 3-4. Thus, the
administrative judge determined that the appellant had not timely elected a
survivor annuity for his current spouse. ID at 4. The appellant has not disputed
this finding, and we discern no reason to disturb the administrative judge’s
finding, as the record reflects that she considered the evidence as a whole, drew
appropriate inferences, and made reasoned conclusions. Id.; see Clay v.
Department of the Army, 123 M.S.P.R. 245, ¶ 6 (2016) (finding no reason to
disturb the administrative judge’s findings when she considered the evidence as a
whole, drew appropriate inferences, and made reasoned conclusions); Broughton
v. Department of Health & Human Services, 33 M.S.P.R. 357, 359 (1987) (same).
3
The appellant mailed his petition for review of the December 12, 2016 initial decision
on January 4 or 6, 2017, to the Board’s Western Regional Office. PFR File, Tab 1
at 3-4. The Western Regional Office forwarded the petition for review to the Office of
the Clerk of the Board, which deemed the petition timely filed on January 6, 2017. PFR
File, Tab 1 at 1, Tab 2.
5
¶8 On review, the appellant requests a waiver of the filing deadline because of
his advanced age and ill health. PFR File, Tab 1 at 2. As noted by the
administrative judge, the Board has recognized three bases for waiving a filing
deadline prescribed by statute or regulation: (1) the statute or regulation may
provide for a waiver under specified circumstances; (2) an agency’s affirmative
misconduct may preclude enforcing the deadline under the doctrine of equitable
estoppel; and (3) an agency’s failure to provide a notice of rights and the
applicable filing deadline, where such notice is required by statute or regulation,
may warrant waiver of the deadline. Perez Peraza v. Office of Personnel
Management, 114 M.S.P.R. 457, ¶ 7 (2010). Although the administrative judge
did not cite the correct statutory provision applicable to this case, 5 U.S.C.
§ 8339(j)(5)(C)(i), she correctly found that the statutory provision at issue does
not permit waiver of the filing deadline. 4 ID at 3-4; see Shaughnessy v. Office of
Personnel Management, 43 M.S.P.R. 633, 637-38 (1990) (holding that, in the
case of an annuitant who was married at the time of his retirement and later
remarried, 5 U.S.C. § 8339(j)(1) did not provide a waiver of the time limit to
make an election after remarriage on the basis that the annuitant was mentally
incompetent); cf. Schoemakers v. Office of Personnel Management, 180 F.3d
1377, 1381-82 (Fed. Cir. 1999) (holding that 5 U.S.C. § 8339(k)(2)(A) does not
permit waiver of the filing deadline to elect a survivor annuity after marriage
because of the annuitant’s mental condition).
4
The administrative judge cited 5 U.S.C. § 8339(k)(2)(A), which pertains to an
employee who was unmarried at the time of retirement, whereas 5 U.S.C.
§ 8339(j)(5)(C)(i) pertains to an employee who was married at the time of retirement.
ID at 3. The appellant in this case was married at the time of retirement. See IAF,
Tab 8 at 28. Thus, we modify the initial decision to reflect that the statutory provision
applicable to this case is 5 U.S.C. § 8339(j)(5)(C)(i). However, sections 8339(k)(2)(A)
and 8339(j)(5)(C)(i) provide nearly identical language regarding the requirement that
electing a survivor annuity occur within 2 years after a post-retirement marriage; thus,
the administrative judge’s citing the incorrect statutory provision did not affect her
correct analysis of the statutory language. Compare 5 U.S.C. § 8339(j)(5)(C)(i), with
5 U.S.C. § 8339(k)(2)(A).
6
¶9 The appellant does not dispute the administrative judge’s f inding that the
agency did not engage in affirmative misconduct that could preclude enforcing
the filing deadline, nor do we discern any reason to disturb the administrative
judge’s findings on this point. ID at 4-5; see Clay, 123 M.S.P.R. 245, ¶ 6.
¶10 The appellant also does not dispute the administrative judge’s finding that
OPM met its burden to show that it properly notified the appellant of the
applicable filing deadline. ID at 5-7. OPM has a statutory obligation to notify
annuitants annually of their survivor annuity election rights under 5 U.S.C.
§ 8339(j). Act of July 10, 1978, Pub. L. No. 95-317, 92 Stat. 382 (1978)
(codified at 5 U.S.C. § 8339 note); Brush v. Office of Personnel Management,
982 F.2d 1554, 1559-60 (Fed. Cir. 1992). OPM has the burden of proving both
that it sent the annual notice and the contents of the notice. Brush, 982 F.2d
at 1561; Cartsounis v. Office of Personnel Management, 91 M.S.P.R. 502, ¶ 5
(2002). In determining whether the content of the agency’s annual notice s to an
annuitant adequately informed him of his election rights, the Board will look to
the notices sent immediately after the event that would result in the need to make
a new election. Allen v. Office of Personnel Management, 99 M.S.P.R. 653, ¶ 9
(2005). If OPM establishes through credible evidence that it is more probable
than not that it sent the annual notices, the appellant then must p resent credible
testimony or other evidence supporting the contention that he did not receive the
notices. Cartsounis, 91 M.S.P.R. 502, ¶ 5.
¶11 Here, the OPM official responsible for printing and distributing retirement
forms and notices provided an affidavit explaining that general notices regarding
survivor elections were sent annually to all annuitants on OPM’s master annuity
roll from 1989 to 2010. IAF, Tab 8 at 10-11. Such notice satisfies OPM’s burden
of proving that it sent the required annual notice. See Schoemakers, 180 F.3d
at 1380-81 (holding that a similar affidavit from a person familiar with how
annual notices are prepared and sent can satisfy OPM’ s burden to show that the
annual notices were sent). The record includes copies of the notices sent to the
7
appellant in December 2009 and December 2010, which contain a section titled
“Survivor Election for a Spouse You Marry After Retirement” and provide the
appellant with his right to elect a survivor annuity, including information
regarding how to make an election, the time frame within which to do so, and the
consequences of choosing a survivor annuity benefit. IAF, Tab 8 at 12-15.
Accordingly, we agree with the administrative judge’s findings that OPM sent
general notices in December 2009 and December 2010, within the 2-year period
after the appellant’s remarriage, and we find that the content of each notice
adequately informed him of his right to elect a survivor annuity. 5 ID at 5-7; see
Dorsey v. Office of Personnel Management, 587 F.3d 1111, 1115 (Fed. Cir. 2009)
(finding that OPM provided the annuitant adequate notice of his right to elect a
survivor annuity where the notices provided information regarding how to make
an election, the time frame within which he needed to do so, and the
consequences of choosing a survivor annuity benefit). Based on our review of the
record, we also agree with the administrative judge that the appellant did not
present evidence showing that he did not receive the annual notices. I D at 6. We
thus find no basis on which to waive the statutory filing deadline.
¶12 Accordingly, we find that the administrative judge properly affirmed OPM’s
reconsideration decision that denied the appellant’s request for a survivor annuity
for his current spouse.
5
The administrative judge only made findings regarding the adequacy of the content of
OPM’s notices with respect to the December 2010 notice. ID at 6-7. Our review of the
record reflects that the notice to which the administrative judge referred was issued in
December 2009, and the second notice that appears in the record was issued in
December 2010. IAF, Tab 8 at 12-15. The notices could cause confusion as to the date
on which they were sent to the appellant, as the first notice refers to a January 2010
payment, and the second notice refers to a January 2011 payment; however, these
references appear in the context of notifying the annuitant of adjustments to his
payment for the upcoming year. See id. We find that the content of each notice
adequately informed the appellant of his right to elect a survivor annuity. See id.8
NOTICE OF APPEAL RIGHTS 6
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain
review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your cas e, you
should contact that forum for more information.
(1) Judicial review in general. As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
6
Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
9
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination. This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision—including a disposition of your discrimination
claims—by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board, 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
10
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court-appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or oth er security. See
42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues. 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012. This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
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other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no chall enge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review ei ther with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction. 7 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
7
The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510.
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Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
FOR THE BOARD: /s/ for
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.