Matthews v. Office of Personnel Management

NOTE: Pursuant to Fed. Cir. R. 47.6, this disposition is
not citable as precedent. It is a public record.
United States Court of Appeals for the Federal Circuit
05-3372
VICTORIA G. MATTHEWS,
Petitioner,
v.
OFFICE OF PERSONNEL MANAGEMENT,
Respondent.
__________________________
DECIDED: March 9, 2006
__________________________
Before MICHEL, Chief Judge, MAYER, and LOURIE, Circuit Judges.
PER CURIAM.
Victoria G. Matthews appeals the final decision of the Merit Systems Protection
Board, which denied her petition for review of the initial decision denying her application
for a survivor annuity under the Civil Service Retirement Act, 5 U.S.C. § 8331 et seq.
Matthews v. Office of Pers. Mgm’t, NY0831050022-I-1 (MSPB Sept. 15, 2005). We
affirm.
We must affirm the board’s decision unless it was arbitrary, capricious, an abuse
of discretion, or otherwise not in accordance with law; obtained without required
procedures; or not supported by substantial evidence. 5 U.S.C. § 7703(c) (2000). A
retired employee who was married at the time of retirement may elect a survivor benefit
within two years of remarrying by notifying the Office of Personnel Management of the
election in a signed notice. 5 U.S.C. § 8339(j)(5)(C)(i) (2000). Here, the board
determined that the retired employee’s election was not received within the two year
period following his remarriage. Because substantial evidence supports this conclusion,
the board did not err in denying the survivor benefit. Although the administrative judge
improperly relied on 5 U.S.C. § 8339(k)(2)(A), which applies to an employee unmarried
at the time of retirement who subsequently marries, instead of 5 U.S.C.
§ 8339(j)(5)(C)(i), which applies to an employee married at retirement who subsequently
remarries, this error was harmless because both provisions require the election within
two years of the marriage or remarriage. In addition, substantial evidence supports a
finding that the former employee was sent actual notice of the election procedures
following his remarriage and that such notice was adequate. See Simpson v. Office of
Pers. Mgm’t, 347 F.3d 1361, 1635 (Fed. Cir. 2003) (discussing notification
requirements).
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