Meunier v. Office of Personnel Management

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
SHIRLEY L. MEUNIER,
Petitioner,
v.
OFFICE OF PERSONNEL MANAGEMENT,
Respondent.
______________________
2013-3135
______________________
Petition for review of the Merit Systems Protection
Board in No. CH0831120581-I-1.
______________________
Decided: February 11, 2014
______________________
SHIRLEY L. MEUNIER, of Hoopeston, Illinois, pro se.
DEVIN A. WOLAK, Trial Attorney, Commercial Litiga-
tion Branch, Civil Division, United States Department of
Justice, of Washington, DC, for respondent. On the brief
were STUART F. DELERY, Assistant Attorney General,
JEANNE E. DAVIDSON, Director, and BRIAN A. MIZOGUCHI,
Assistant Director.
______________________
2 MEUNIER v. OPM
Before RADER, Chief Judge, NEWMAN, and DYK, Circuit
Judges.
PER CURIAM.
Shirley A. Meunier (“Petitioner”) appeals from the fi-
nal order of the Merit Systems Protection Board (the
“Board”) denying her petition for review of the Board’s
initial decision that affirmed the Office of Personnel
Management (“OPM”) decision denying Petitioner’s
request for survivor annuity benefits under the Civil
Service Retirement System, based on the federal service
of her deceased spouse, Robert E. Meunier, who retired in
1979. 1 The Board denied Petitioner’s claim because Mr.
Meunier did not elect a survivor annuity for Petitioner, as
required by 5 U.S.C. §8339(j)(5)(C)(i). The Board found
that Petitioner did not establish that OPM failed to send
Mr. Meunier the statutorily required notice of his right to
elect a survivor annuity or that Mr. Meunier intended to
elect her for such. The Board’s decision is supported by
substantial evidence, and is affirmed.
BACKGROUND
In 1997 Mr. Meunier married the Petitioner, his fifth
wife. In the month of their marriage, Mr. Meunier sub-
mitted a Designation of Beneficiary form to OPM desig-
nating Petitioner to receive lump-sum death benefits. Mr.
Meunier did not make a written election to provide Peti-
tioner with a survivor annuity.
After Mr. Meunier’s death in 2010, Petitioner applied
for survivor annuity benefits. OPM denied the applica-
tion on the basis that Mr. Meunier did not make a written
election to provide Petitioner with a survivor annuity.
1 Meunier v. Office of Pers. Mgmt., No. CH-0831-12-
0581-I-1 (M.S.P.B. June 11, 2013) (“Final Order”);
(M.S.P.B. Oct. 12, 2012) (“Initial Decision”).
MEUNIER v. OPM 3
Petitioner sought review by the Board, which affirmed the
OPM decision on the basis that Mr. Meunier did not
submit a signed writing to OPM electing Petitioner for a
survivor annuity and Petitioner had not presented credi-
ble evidence that Mr. Meunier intended to do so.
DISCUSSION
I
We affirm the Board’s decision unless it is “(1) arbi-
trary, capricious, an abuse of discretion, or otherwise not
in accordance with 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); Tunik v. Merit Sys. Prot. Bd., 407 F.3d
1326, 1330 (Fed. Cir. 2005).
The law requires that, upon remarriage, an election
for a survivor annuity for a new spouse must be received
by OPM within two years of the remarriage.
See 5 U.S.C. §8339(j)(5)(C)(i). 2 No particular form or
format is required for the election. All that is required is
a signed writing conveying the federal retiree/annuitant’s
intent to make a survivor annuity election. See Dorsey v.
Office of Pers. Mgmt., 587 F.3d 1111, 1114 (Fed. Cir.
2009); Harris v. Office of Pers. Mgmt., 985, F.2d 549, 550
(Fed. Cir. 1993).
2 We note that our holding in this case is limited to
the context of remarriages. See 5 U.S.C. §8341(b)(1)
(providing that a widow or widower is entitled to an
annuity “unless the right to a survivor annuity was
waived under such section 8339(j)(1) or, in the case of
remarriage, the employee . . . did not file an election
under section 8339(j)(5)(C) or section 8339(k)(2) of this
title”).
4 MEUNIER v. OPM
The law also provides that, in the event the annuitant
did not make a written election by signed writing pursu-
ant to 5 U.S.C. §8339(j), the spouse may still receive the
survivor annuity if “(1) the [annuitant] did not receive the
required notice, 3 and (2) ‘there is evidence sufficient to
show that the [annuitant] indeed intended to provide a
survivor annuity for the former spouse.’” Hernandez v.
Office of Pers. Mgmt., 450 F.3d 1332, 1335 (Fed. Cir. 2006)
(quoting Wood v. Office of Pers. Mgmt., 241 F.3d 1364,
1367 (Fed. Cir. 2001)); see also Dachniwskyj v. Office of
Pers. Mgmt., 713 F.3d 99, 102 (Fed. Cir. 2013).
“The onus is . . . upon OPM to show that notice was
sent.” Brush v. Office of Pers. Mgmt., 982 F.2d 1554,
1560-61 (Fed. Cir. 1992).
In accordance with the statutory mandate, OPM
must show two things when attempting to prove
that it has met its burden of providing retirees
with the notice here in issue. First, OPM must at-
tempt to prove that the notice was actually sent.
Such evidence must be more than a bare allega-
tion that notice was sent.
Id. An affidavit or the testimony of a person familiar with
how annual notices are prepared and sent can satisfy
OPM’s burden to show that the annuitant received the
annual notice. See Schoemakers v. Office of Pers. Mgmt.,
180 F.3d 1377, 1380-81 (Fed. Cir. 1999). “Second, OPM
3 “OPM is statutorily obligated to inform each an-
nuitant annually of his right to elect a survivor annuity.”
Dachniwskyj v. Office of Pers. Mgmt., 713 F.3d 99, 102
(Fed. Cir. 2013) (citing Pub. L. No. 95-317, 92 Stat. 382
(1978), as amended by Reorganization Plan No. 2 of 1978,
§102, 92 Stat. 3783 (codified at 5 U.S.C. §8339 note
(1988))).
MEUNIER v. OPM 5
must offer proof as to the contents of the annual notice.”
Brush, 982 F.2d at 1561.
In the event that OPM is able to establish through
credible evidence that it is more probable than not
that the annual notice was sent, the burden of go-
ing forward falls upon the petitioner. The peti-
tioner, if able to do so, must put forth such
credible testimony or other evidence tending to
support the contention that the annuitant in
question did not receive the annual notice. The
Board must then decide whether it will credit the
applicant’s testimony, and whether that testimony
overcomes the presumption that the notice was
received. As in other cases before the Board, evi-
dence regarding the annuitant’s conduct . . . is
probative evidence regarding the question wheth-
er the annuitant would have made the election in
question.
Brush, 982 F.2d at 1561.
OPM argues that the Board correctly decided the facts
of notice and intent. The Board found that OPM provided
sufficient affidavit evidence that it sent Mr. Meunier the
statutorily required notice. Petitioner’s assertion to the
contrary was not supported by any evidence. The Board
further found that there was no evidence Mr. Meunier
intended to elect Petitioner for a survivor annuity. At the
proceedings before the Board, the administrative judge
(“AJ”) stated:
OPM asserted that . . . it sent Mr. Meunier notice
of his survivor annuity election rights. It provided
an affidavit attesting to this claim. In a prehear-
ing conference, the appellant stated no forms were
sent to Mr. Meunier to explain his rights. I find
that Brush does not require OPM to allow a survi-
vor annuity for the appellant. First, the appellant
provided no information or evidence that she
6 MEUNIER v. OPM
would know what correspondence Mr. Meunier re-
ceived from OPM. Second, it is apparent from Mr.
Meunier’s actions relating to his other four mar-
riages that he knew he had to notify OPM to re-
quest survivor annuity benefits for his new wife.
Although he changed his beneficiary to provide
the appellant with [] lump-sum [death] benefi[ts],
he did not include a designation for the appellant
to receive a survivor annuity. I find his conduct
was not consistent with his having made an elec-
tion of a survivor annuity.
Initial Decision at 4. On this appeal, Petitioner argues
that the burden was improperly placed on her, and that
OPM had not established that the required notice had
been sent to Mr. Meunier.
II
We conclude that the Board’s findings that Mr.
Meunier received the required annual notice and that
there was no evidence establishing his intent to provide
Petitioner with a survivor annuity were supported by
substantial evidence, and that the burden of providing
contrary evidence was properly shifted to Petitioner.
The affidavit submitted by OPM to the Board satisfies
the standard set forth under Brush and Schoemakers.
The affiant stated that she is familiar with the notices
regarding survivor elections and that such notices were
sent to all annuitants on December 1997 and December
1998, the periods within which Mr. Meunier could make a
survivor election following his marriage to Petitioner.
Although the affidavit does not mention Mr. Meunier by
name, but states that the notices were sent to all annui-
tants, naming the annuitant is not required for OPM to
meet its burden of showing that it mailed the required
notice to any specific annuitant. See Schoemakers, 180
F.3d at 1381 (“There is no requirement, however, that
OPM’s proof relate to any specific notices sent to the
MEUNIER v. OPM 7
particular annuitant.”). A copy of the statutorily required
notice was attached to the affidavit, thus satisfying the
second requirement under Brush to prove the contents of
the notice. See Brush, 982 F.2d at 1561; Schoemakers,
180 F.3d at 1380-81.
The burden having shifted to Petitioner, the Board
found that Petitioner failed to put forth credible evidence
that Mr. Meunier did not receive the required notice and
that he intended to elect her for a survivor annuity.
There is no evidence, other than Petitioner’s conten-
tion, that Mr. Meunier did not receive the required notice.
The Board found that Petitioner would not know what
correspondence Mr. Meunier received from OPM, and that
Petitioner failed to show a reasonable likelihood that the
notice was not sent to Mr. Meunier.
Further, assuming arguendo OPM did not send Mr.
Meunier the required notice, Petitioner would have then
been required to establish Mr. Meunier’s intent to provide
her with a survivor annuity. The Board’s conclusion that
Petitioner did not provide credible evidence of such intent
is supported by substantial evidence. Looking at Mr.
Meunier’s previous marriages, the Board found that his
prior conduct belied any assertion he intended to elect
Petitioner for survivor annuity benefits. See Brush, 982
F.2d at 1561 (“[E]vidence regarding the annuitant’s
conduct . . . is probative evidence regarding the question
whether the annuitant would have made the election in
question.”). At the time of retirement, Mr. Meunier
elected his first and then-current wife for a survivor
annuity. In 1980, Mr. Meunier and his first wife divorced
and he eliminated her survivor annuity. In 1982, Mr.
Meunier married his second wife, and elected her for a
survivor annuity. Mr. Meunier and his second wife sub-
sequently divorced in 1985 and he eliminated her survivor
annuity benefits. In 1986, Mr. Meunier married his third
wife, and elected health benefits for her. The record
8 MEUNIER v. OPM
shows that Mr. Meunier inquired of OPM how much it
would cost to elect his third wife for a survivor annuity.
In 1988, Mr. Meunier notified OPM of his divorce from his
third wife, and requested that OPM remove her from his
health benefits and add his fourth wife. 4
Petitioner argues that Mr. Meunier’s intent to provide
her with a survivor annuity was thwarted by OPM send-
ing him the wrong form in response to an alleged request
Mr. Meunier made for the proper form. The AJ discussed
this argument, and found that “[f]rom the appellant’s
statements, I infer that both she and Mr. Meunier knew
that the form they completed together was not a request
for a survivor annuity,” and stating further that:
With his prior wives [Mr. Meunier] requested a
survivor annuity by completing a form upon re-
tirement, but thereafter all his requests for
changes upon remarriage were by letter. Had Mr.
Meunier intended to provide a survivor benefit for
the appellant, he only needed to write a letter
stating his intent as he had successfully done on
prior occasions.
Initial Decision at 3-4.
Thus, the Board found that Mr. Meunier knew how to
elect a survivor annuity without using the standard form
by sending a signed writing manifesting his intent, which
he had done in the past. These findings are supported by
substantial evidence, and support the Board’s conclusion.
4 Petitioner has argued that Mr. Meunier was not
legally married to his fourth wife. We agree with the
Board that this is immaterial to the present appeal. See
Initial Decision at 2. The record is unclear as to the date
of Mr. Meunier’s marriage to, and divorce from, his fourth
wife.
MEUNIER v. OPM 9
The Board’s findings are supported by substantial ev-
idence in the record and are not otherwise arbitrary,
capricious, an abuse of discretion, or not in accordance
with law or obtained without procedures required by law.
The Board’s decision denying Petitioner a survivor annui-
ty is affirmed.
AFFIRMED
No costs.