Barbara S. Prosser v. Office of Personnel Management ( 2016 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
BARBARA S. PROSSER, DOCKET NUMBER
Appellant, CH-0831-16-0094-I-1
v.
OFFICE OF PERSONNEL DATE: September 8, 2016
MANAGEMENT,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL *
Mark C. Fels, Esquire, Springfield, Missouri, for the appellant.
Roxann Johnson, Washington, D.C., for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Mark A. Robbins, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
affirmed the decision of the Office of Personnel Management (OPM) denying her
request for a survivor annuity. Generally, we grant petitions such as this one only
when: the initial decision contains erroneous findings of material fact; the initial
*
A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).
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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. See 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 and AFFIRM the initial decision, which is now the Board’s final
decision. 5 C.F.R. § 1201.113(b).
BACKGROUND
¶2 OPM denied the appellant’s request to reconsider its initial decision, in
which it had denied her request for a survivor annuity because her decedent
spouse failed to elect a former spouse survivor annuity for her by direct election
in the 2 years following their 2005 divorce and the terms of their divorce decree
or marital settlement did not provide for one. Initial Appeal File (IAF), Tab 5,
Subtab 2. The appellant subsequently filed a Board appeal and did not request a
hearing. IAF, Tab 1. On the written record, the administrative judge affirmed
OPM’s reconsideration decision, finding that OPM met its burden to demonstrate
that it had sent the annuitant the required annual notice of election rights and that
the content of that notice was adequate to inform him of the specific election
requirements. IAF, Tab 10, Initial Decision (ID).
¶3 In her petition for review, the appellant argues that OPM’s affidavit is
insufficient to establish its burden of proving that it sent a compliant version of
the required annual notice of election rights. Petition for Review (PFR) File,
Tab 1 at 1-2. She contends that the affidavit is deficient because it does not
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distinguish between or set forth the content of the notices sent in each of the
specified years. Id. at 3. Therefore, because the general notices issued by OPM
between 1989 and 2003 were found insufficient by the U.S. Court of Appeals for
the Federal Circuit, and OPM’s affidavit does not reflect that it changed those
general notices, the appellant argues that OPM failed to prove that it sent a
compliant notice to the appellant. Id. at 3-4. The appellant also argues that the
blank notices provided by OPM in this action were not incorporated by reference
in the affidavit and were undated. Id. at 4-5. Therefore, the appellant contends
that OPM not only failed to establish that it actually sent the required notice, it
also failed to establish that the content of the notice that it sent was sufficient to
give the decedent notice of the specific election requirements. Id. at 5.
DISCUSSION OF ARGUMENTS ON REVIEW
¶4 The appellant, as the applicant for benefits, bears the burden of proving
entitlement to a former spouse survivor annuity by preponderant evidence.
McKenzie v. Office of Personnel Management, 113 M.S.P.R. 240, ¶ 7 (2010).
“Divorce terminates a prior election of spousal survivor benefits.” Hernandez v.
Office of Personnel Management, 450 F.3d 1332, 1334 (Fed. Cir. 2006); see
5 U.S.C. § 8339(j)(5)(A). Thus, the appellant’s entitlement to a survivor annuity,
based on her ex-husband’s pre-divorce election to provide such benefits,
terminated when she and the appellant divorced in 2005.
¶5 The former spouse of a retired Federal employee is entitled to a survivor
annuity if and to the extent the retiree expressly provided for one in an election
under 5 U.S.C. § 8339(j)(3), or in the terms of a divorce decree or any court order
or court-approved property settlement issued in connection with the divorce
decree. 5 U.S.C. § 8341(h)(1); e.g., Bleidorn v. Office of Personnel Management,
111 M.S.P.R. 456, ¶ 6 (2009). In this matter, it is unrebutted that neither the
2005 divorce decree nor any related court order or property settlement included a
term expressly awarding the appellant a former spouse survivor annuity.
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¶6 Even without an affirmative election by the annuitant, a former spouse may
nonetheless receive survivor annuity benefits if (1) the annuitant did not receive
the required notice, and (2) there is sufficient evidence to show that the annuitant
intended to provide a survivor annuity for the former spouse. Hernandez,
450 F.3d at 1334-35. The burden of proof is on OPM to prove both that it sent
the annual notice and that the notice was adequate to inform the annuitant of the
specific election requirements under 5 U.S.C. § 8339(j). Djeridi v. Office of
Personnel Management, 115 M.S.P.R. 250, ¶ 15 (2010).
¶7 On review, the appellant challenges the adequacy of OPM’s affidavit,
arguing that it fails to set forth the content of the notices sent to annuitants in the
specified years and also fails to note the changes which were made to the various
notices used in different years to make them compliant with the pertinent statute.
PFR File, Tab 1 at 2-4. The appellant also argues that the affidavit failed to
incorporate the undated blank notices submitted below and contends that the
notices, which only reflect the date that OPM revised them, do not indicate when
they were sent to the decedent. Id. at 4-5. Consequently, as noted above, the
appellant asserts that OPM failed to establish its burden of proving that it sent a
compliant version of the required annual notice of election rights to the decedent.
¶8 We disagree. There is no requirement that OPM provide such specific
evidence. Schoemakers v. Office of Personnel Management, 180 F.3d 1377, 1381
(Fed. Cir. 1999). The question is whether OPM has provided credible evidence
showing that it is more likely than not that the annual notice was sent. Id. Here,
OPM provided an affidavit from a responsible OPM official averring that general
notices regarding survivor elections were sent to all annuitants annually and
explaining the procedures by which notices were mailed to each annuitant on the
master annuity roll. IAF, Tab 5, Subtab 2. OPM also provided examples of the
two most pertinent notices it sent, those for 2005 and 2006, the years following
the couple’s divorce. Id.; e.g., Allen v. Office of Personnel Management,
99 M.S.P.R. 653, ¶ 9 (2005). Our reviewing court has found this to be sufficient
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evidence to support a reasonable inference that OPM sent the required notice.
Schoemakers, 180 F.3d at 1381. The notices explain that a new survivor annuity
election must be made within 2 years after the date a former spouse loses
entitlement to a survivor annuity. IAF, Tab 5, Subtab 2 at 12, 14. Thus we agree
with the administrative judge that the decedent more likely than not received
adequate annual OPM notices concerning his election rights during the election
period following the couple’s divorce and that the appellant has failed to establish
by preponderant evidence that she is entitled to a former spouse survivor annuity.
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
You have the right to request review of this final decision by the U.S.
Court of Appeals for the Federal Circuit. You must submit your request to the
court at the following address:
United States Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, DC 20439
The court must receive your request for review no later than 60 calendar days
after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec. 27,
2012). If you choose to file, be very careful to file on time. The court has held
that normally it does not have the authority to waive this statutory deadline and
that filings that do not comply with the deadline must be dismissed. See Pinat v.
Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).
If you need further information about your right to appeal this decision to
court, you should refer to the Federal law that gives you this right. It is found in
title 5 of the United States Code, section 7703 (5 U.S.C. § 7703) (as rev. eff. Dec.
27, 2012). You may read this law as well as other sections of the United States
Code, at our website, http://www.mspb.gov/appeals/uscode.htm. Additional
information is available at the court’s website, www.cafc.uscourts.gov. Of
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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, 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
Merit Systems Protection Board neither endorses the services provided by any
attorney nor warrants that any attorney will accept representation in a given case.
FOR THE BOARD: ______________________________
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.