Rakowsky v. Office of Personnel Management

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
NATALIYA RAKOWSKY,
Petitioner
v.
OFFICE OF PERSONNEL MANAGEMENT,
Respondent
______________________
2017-1742
______________________
Petition for review of the Merit Systems Protection
Board in No. DE-0831-14-0388-I-1.
______________________
Decided: August 11, 2017
______________________
NATALIYA RAKOWSKY, Marana, AZ, pro se.
KRISTIN MCGRORY, Commercial Litigation Branch,
Civil Division, United States Department of Justice,
Washington, DC, for respondent. Also represented by
CHAD A. READLER, ROBERT E. KIRSCHMAN, JR., BRIAN A.
MIZOGUCHI.
______________________
Before PROST, Chief Judge, CLEVENGER and STOLL,
Circuit Judges.
2 RAKOWSKY v. OPM
PER CURIAM.
This is an appeal from a decision of the Merit Systems
Protection Board (“Board”) affirming a decision of the
Office of Personnel Management (“OPM”) that the Appel-
lant Nataliya Rakowsky was not entitled to a survivor’s
annuity. We affirm.
I
On December 29, 1986, Ihor Rakowsky retired from
the federal service and from the position of Supervisory
Special Agent, Drug Enforcement Administration, De-
partment of Justice. Upon retirement, he elected a max-
imum survivor annuity (55%) to be payable to his then-
wife Sophie Kandiuk upon his death. To effectuate his
annuity election, Mr. Rakowsky executed the “Alternative
Annuity Election” form, which provided that he elected “to
receive the reduced alternative annuity.” J.A. 24. Follow-
ing his submission of the form to OPM, Mr. Rakowsky’s
monthly annuity payments were reduced to account for
the survivor benefit election.
Ten years after his retirement, Mr. Rakowsky advised
OPM that his wife had died, and, as a result, he requested
that OPM “kindly make the necessary changes in [his]
records and advise.” J.A. 25. In response, OPM sent Mr.
Rakowsky a letter advising him that his annuity was
adjusted to full life rate due to the change in his marital
status.
Mr. Rakowsky married the Appellant in 1997. About
a year later, Mr. Rakowsky executed a Standard Form
(SF) 2808, “Designation of Beneficiary,” designating the
Appellant as the beneficiary to “receive any lump-sum
benefit which may become payable under the Civil Service
Retirement law after my death.” J.A. 56. This form also
states, “I understand that this designation of beneficiary
will not affect the rights of any survivors who may qualify
for annuity benefits after my death.” Id. Mr. Rakowsky
RAKOWSKY v. OPM 3
also executed a SF-2823 “Designation of Beneficiary” form
for the Federal Employees’ Group Life Insurance Pro-
gram, designating the appellant as his beneficiary. Mr.
Rakowsky continued to receive annuity payments at the
full life rate.
In December 1997 and December 1998, OPM sent no-
tices to Mr. Rakowsky informing him that, if he married
subsequent to his retirement, he had two years from the
date of his marriage to elect a survivor annuity for his
new spouse.
In 2010, OPM informed Mr. Rakowsky that a valid
marriage certificate was missing from his personnel file
and requested he provide a copy to be included in the file.
Following this notification, Mr. Rakowsky made the
required submission and requested that OPM send him
three copies of his file. Mr. Rakowsky, however, did not
reference a survivor benefit annuity, and he did not state
that he desired a reduction in his monthly annuity rate.
Mr. Rakowsky died in 2013. Following his death, Ms.
Rakowsky filed a claim for a survivor annuity benefit.
OPM denied the request because Mr. Rakowsky had not
elected a survivor annuity benefit within the statutorily
prescribed two-year period after his marriage.
Ms. Rakowsky requested reconsideration of the decision
and OPM again denied her request, finding that
Mr. Rakowsky failed to make a timely election to provide
her an annuity.
Ms. Rakowsky filed an initial appeal with the Board
challenging OPM’s denial of her application for a survivor
annuity. Following a telephonic conference, the adminis-
trative judge affirmed OPM’s decision. The full Board
denied her petition for review, thus rendering the initial
decision final. 5 C.F.R. § 1201.113(b). Ms. Rakowsky
timely appealed to this court. We have jurisdiction pur-
suant to 28 U.S.C. § 1295(a)(9).
4 RAKOWSKY v. OPM
II
Our review of a decision of the Board is strictly lim-
ited by statute. 5 U.S.C. § 7703(c). We must affirm a
Board’s decision unless it is “(1) arbitrary, 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) unsupport-
ed by substantial evidence.” Id. “Substantial evidence” is
defined as “such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion.” Simp-
son v. Office of Pers. Mgmt., 347 F.3d 1361, 1364 (Fed.
Cir. 2003) (quoting Consol. Edison Co. v. NLRB, 305 U.S.
197, 229 (1938)). Ms. Rakowsky has the burden of
demonstrating by a preponderance of the evidence that
she is entitled to a survivor annuity. Cheeseman v. Office
of Pers. Mgmt., 791 F.2d 138, 141 (Fed. Cir. 1986).
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, in relevant part,
that:
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 under paragraph (4)
of this subsection for the purpose of providing an
annuity for such employee or Member’s spouse in
the event such spouse survives the employee or
Member.
The statutory provision does not require an election of a
survivor annuity in any particular form, but it must show
an “unmistakable intent” to make such an election.
Harris v. Office of Pers. Mgmt., 985 F.2d 549, 550 (Fed.
Cir. 1993). Any signed writing that manifests the annui-
tant’s intent to make an election will suffice. Dorsey v.
RAKOWSKY v. OPM 5
Office of Pers. Mgmt., 587 F.3d 1111, 1114 (Fed. Cir.
2009).
Ms. Rakowsky argues that the evidence clearly shows
that her husband intended to provide a survivor annuity
for her, even though he did not file an election. According
to her, Mr. Rakowsky’s submission of Standard Forms
2808 and 2823 in 1998 and the marriage certificate in
2010, combined with his desire to take care of his family,
demonstrates that he intended for Ms. Rakowsky to
receive a survivor annuity.
We conclude that substantial evidence supports the
Board’s determination that Mr. Rakowsky did not elect a
survivor annuity in a signed writing, as required by
statute. The forms Mr. Rakowsky submitted relate to
other benefits and do not elect a survivor annuity benefit.
See Dorsey, 587 F.3d at 1114 (holding that submission of
the Standard Forms 2808 and 2823 did not demonstrate
an intent to elect survivor annuity benefits). Accordingly,
the forms themselves do not demonstrate an intent to
elect survivor annuity benefits. See id.Ms. Rakowsky also argues that her husband—by
sending in his marriage certificate, allegedly in 1997 and
again in 2010, and notifying OPM of his change in marital
status—sufficiently manifested his intent to elect a survi-
vor annuity. Her evidence in support of this argument
was not all before the administrative judge. Nor did the
Board consider this evidence “because [it did] not consti-
tute new evidence.” J.A. 10. Even if the Board had
considered it, however, substantial evidence would still
support the Board’s determination that Mr. Rakowsky did
not elect to provide a survivor annuity for Ms. Rakowsky.
This court has encountered this situation before and has
held that a retired employee sending OPM a copy of his
marriage certificate and placing his wife on his insurance
before the time limit expired did not show an “unmistak-
able intent” to make a survivor annuity election. Taylor
6 RAKOWSKY v. OPM
v. Office of Pers. Mgmt., 15 F. App’x 864, 866 (Fed. Cir.
2001). Even where, in addition to filing a Designation of
Beneficiary form with OPM, the retired employee also
sent a letter stating, “I have remarried and would like to
change my beneficiary for death benefits on my life insur-
ance to [my new wife],” this court held that such actions
did not evince a clear intent to elect survivor annuity
benefits. Czvik v. Office of Pers. Mgmt., 20 F. App’x 890,
891 (Fed. Cir. 2001). Because the conclusion that Mr.
Rakowsky failed to make a legally sufficient election of
such a benefit for Ms. Rakowsky is supported by substan-
tial evidence, we must affirm. See Dorsey, 587 F.3d at
1115.
Finally, the law also provides that a former spouse
may receive survivor annuity benefits even without an
affirmative election by the annuitant if the annuitant
intended to provide the annuity but did not receive the
required notice. Hernandez v. Office of Pers. Mgmt., 450
F.3d 1332, 1334–35 (Fed. Cir. 2006). To prove that it
provided adequate notice, OPM must establish both “that
the notice was actually sent . . . [and] the contents of the
annual notice.” Brush v. Office of Pers. Mgmt., 982 F.2d
1554, 1561 (Fed. Cir. 1992). If OPM can establish
through credible evidence that it is more probable than
not that the annual notice was sent, the burden of going
forward falls upon the petitioner. Schoemakers v. Office
of Pers. Mgmt., 180 F.3d 1377, 1380 (Fed. Cir. 1999).
Ms. Rakowsky maintains on appeal that Mr. Rakow-
sky never received a personal notice from OPM. The
Board reviewed OPM’s evidence and found that OPM
properly notified Mr. Rakowsky of his right to elect a
survivor annuity. OPM provided a declaration by Donna
G. Lease in which she stated that she sent out annual
notices to all annuitants, including Mr. Rakowsky, in
December 1997 and December 1998. A declaration of a
person familiar with how annual notices are prepared and
sent can satisfy OPM’s burden to show that the annuitant
RAKOWSKY v. OPM 7
received the annual notice. Schoemakers, 180 F.3d at1380–81. Further, OPM may satisfy its obligation by
sending a general notice announcement rather than
providing each annuitant with a personalized notice
letter. Hairston v. Office of Pers. Mgmt., 318 F.3d 1127,
1130 (Fed. Cir. 2003). The notices provided Mr. Rakow-
sky 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.
Thus, we agree that the notices were adequate.
OPM having established that the notices were sent,
the burden shifts to Ms. Rakowsky to establish that her
husband did not receive the annual notice. Schoemakers,
180 F.3d at 1381. 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. Brush, 982 F.2d at 1561. To rebut OPM’s
evidence, Ms. Rakowsky provided testimony that Mr.
Rakowsky “must not have received the notices.” J.A 17.
Ms. Rakowsky did not provide any other evidence sup-
porting her contention that the notices were not received.
We agree with the administrative judge and the Board,
therefore, that Ms. Rakowsky did not sustain her burden
to show that the annuitant did not receive the annual
notices. See Schoemakers, 180 F.3d at 1381 (holding that
a wife’s testimony that the notices may have been thrown
out or misplaced by her husband and that she never
received the notices did not establish that her husband,
the annuitant, did not receive them).
8 RAKOWSKY v. OPM
In sum, the Board’s conclusion that Mr. Rakowsky did
not elect a survivor annuity benefit, timely or not, for Ms.
Rakowsky is supported by substantial evidence. We have
considered all other arguments Ms. Rakowsky presents
and find them unpersuasive. Accordingly, we affirm the
Board’s decision.
AFFIRMED
COSTS
The parties shall bear their own costs.