                       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

                                           04-3279

                                    KAYE C. TIMMERS,

                                                                       Petitioner,

                                              v.

                        MERIT SYSTEMS PROTECTION BOARD,

                                                                       Respondent.

                           ___________________________

                           DECIDED: March 10, 2005
                           ___________________________


Before MICHEL, Chief Judge, SCHALL and DYK, Circuit Judges.

DYK, Circuit Judge.

      Petitioner Kaye C. Timmers (“Timmers”) petitions for review of the final decision

of the Merit Systems Protection Board (“Board”), which dismissed her appeal as

untimely filed. Timmers v. Office of Pers. Mgmt., No. CH0831030715-I-1 (M.S.P.B.

Sept. 12, 2003). We affirm-in-part the Board’s final decision and remand for further

proceedings.

                                    BACKGROUND

      This case concerns the timeliness of an appeal filed with the Board. The merits

of the underlying case concern the payment of annuity benefits by the Office of

Personnel Management (“OPM”).

      Timmers’ former spouse, Vernon John Rausch (“Rausch”), was employed with

the United States Department of the Interior, and qualified for retirement benefits under
the Civil Service Retirement System. The couple divorced in August 1983. The divorce

decree was amended in October 1985, and, as amended, included a provision on

pension benefits, which stated:

       [Rausch’s] pension benefits shall be divided between the parties as and
       when received. . . . At [Rausch’s] retirement at age 62, [Timmers] shall be
       entitled to, and shall receive, $ 711.00 per month pension benefit
       payments . . . . In the event [Rausch] dies prior to receiving his pension
       benefits, any death benefit payable shall be apportioned between
       [Timmers] and [Rausch’s] named beneficiary of his estate in the same
       manner as pension benefits would otherwise have been paid had [Rausch]
       survived to retirement date of age 62 and began receiving said benefits. . .
       . [Timmers’] benefits are fixed as date of Decree at $ 711.00 per month
       based on present vested pension benefits. [Timmers’] entitlement to
       death benefits is also fixed as of date of the Decree, utilizing the same
       apportionment as would be utilized if [Rausch] begins receiving his
       pension benefits at age 62.

(Resp’t App. at 41-42 (emphasis added).)

       In March 1998, OPM approved the $ 711.00 monthly payment to Timmers, which

was made effective retroactively to September 1, 1997. In August 2000, Rausch died,

and subsequently, in October 2000, OPM ceased paying Timmers.

       Timmers applied to OPM to continue payment of the benefits. After a significant

period of delay, OPM issued an initial decision denying Timmers’ application for benefits

on April 23, 2002, and a final decision denying benefits followed on March 18, 2003. In

its final decision, OPM stated that under 5 U.S.C. § 8341(h), a former spouse is entitled

to a survivor annuity “to the extent expressly provided for . . . in the terms of any decree

of divorce.” (Resp’t App. at 33 (emphasis omitted).) Despite our decision in Hokanson

v. Office of Personnel Management, 122 F.3d 1043, 1046 (Fed. Cir. 1997), OPM

determined that Timmers was “not entitled to survivor annuity benefits as a former




04-3279                                     2
spouse of Mr. Rausch. At Mr. Rausch’s death, his annuity benefits terminated and

[Timmers was] no longer entitled to an apportionment.” (Resp’t App. at 34.)

       The final paragraph of OPM’s decision stated that Timmers had “the right to

appeal to the Merit Systems Protection Board . . . . An appeal must be filed within . . .

30 days after receipt of this decision.” (Id. at 35.) By her own admission, Timmers

received the decision “sometime in the week of March 24th, 2003.” (Id. at 13.) She

filed her appeal with the Board on July 24, 2003. (Id. at 2.) There is no dispute that this

was outside of the 30-day limit prescribed by 5 C.F.R. § 1201.22(b).

       The administrative judge issued an Acknowledgement Order on August 12, 2003,

advising Timmers that she had filed her appeal out of time and ordering her to show

good cause for the delay. Timmers responded that her tardiness should be excused

because (1) she was not a lawyer, failed in her efforts to secure a lawyer, and was

intimidated by the appeal form; and (2) her three months delay was less serious when

compared to the 18 months that OPM took to deny her benefits. (Id. at 23.) The

administrative judge dismissed the appeal as untimely filed, finding that Timmers had

not exercised due diligence or ordinary prudence and did not establish good cause for

waiver of the filing time limit, and further stating that Timmers could not “prevail on the

merits of her claim for a survivor annuity. The divorce decree . . . did not specifically

award her a former spouse survivor annuity benefit. . . . [Timmers] does not meet the

statutory requirements of 5 U.S.C § 8341(h) to receive a survivor annuity, and [the

Board] do[es] not have any authority to waive those requirements.” Timmers v. Office of

Pers. Mgmt., No. CH0831030715-I-1, slip op. at 3 n.2 (M.S.P.B. Sept. 12, 2003).




04-3279                                    3
       Timmers then secured a lawyer and petitioned the full Board for review under 5

C.F.R. § 1201.115, or, in the alternative, to reopen the case under 5 C.F.R. § 1201.118.

Timmers submitted an affidavit wherein she stated that during the four months between

her receipt of the OPM decision and the time of her filing with the Board, she suffered

various crises including the death of her father, a high risk pregnancy for her daughter,

an emergency cesarean birth for her daughter-in-law, a car accident, and major

upheaval at her work with the Red Cross due to sanctions imposed by the Food and

Drug Administration. (Resp’t App. at 13-16.) The full Board summarily denied her

petition.

       Timmers petitions this court for review.    We have jurisdiction pursuant to 28

U.S.C. § 1295(a)(9).

                                     DISCUSSION

       Insofar as the Board denied Timmers’ petition for review, we see no error in this

decision. Pursuant to 5 C.F.R. § 1201.115(d), the Board may grant such a petition

when, inter alia, the petitioner presents “[n]ew and material evidence . . . that, despite

due diligence, was not available when the record closed.” In the affidavit she submitted

in support of her petition for review, Timmers described a string of crises in her life

occurring after receipt of OPM’s reconsideration decision. While we are sympathetic to

the situation in which Timmers found herself during this period, it is clear that nothing

prevented her from presenting the circumstances described in her affidavit to the

administrative judge in response to the Acknowledgement Order. In other words, these

circumstances do not constitute new evidence that was not available when the record

closed. This does not end the case, however.




04-3279                                    4
       On appeal to the full Board, Timmers also specifically requested that the Board

reopen the case pursuant to 5 C.F.R. § 1201.118. That section provides: “The Board

may reopen an appeal and reconsider a decision of a judge on its own motion at any

time.” The Board refused to reopen the case. In past cases we have assumed that we

have authority to review the Board’s decision not to reopen. As we noted in Azarkhish

v. Office of Pers. Mgmt., 915 F.2d 675 (Fed. Cir. 1990): “Assuming, without deciding,

that [petitioner] has standing . . . the full Board has ‘broad discretion’ in deciding which

initial decisions to review sua sponte,” and the petitioner bears a “heavy burden” in this

court to overcome it. Id. at 679 (citations omitted); see Zamot v. Merit Sys. Prot. Bd.,

332 F.3d 1374, 1378 (Fed. Cir. 2003) (“The Board enjoys broad discretion in deciding

whether to reopen particular appeals, and this court has stated that, even assuming we

have the authority to review such a decision (an issue the court has left open), a party

has a ‘heavy burden’ in attempting to demonstrate that the full Board erred in exercising

its discretion not to reopen.” (emphasis added)).       The standard of review for such

decisions is the highly deferential abuse of discretion standard. Nelson v. FDIC, 83

F.3d 1375, 1377 (Fed. Cir. 1996) (“Assuming, without deciding, that we may review the

Board's decision not to reopen an appeal on its own motion under 5 C.F.R. § 1201.118

for an abuse of discretion.” (emphasis added)); Azarkhish, 915 F.2d at 679. When it

denied Timmers’ petition for review in its final decision, the Board did not mention the

request to reopen.

       In the past, the Board has exercised its discretion to reopen cases to prevent

what it perceived to be “manifest injustice to the appellant's substantive rights.” Fields

v. Office of Pers. Mgmt., 79 M.S.P.R. 659, 661-62 (1998) (considering additional




04-3279                                     5
evidence submitted to the full Board on reopening). In Fields, the petitioner was the first

wife of a federal employee and was seeking survivor annuity benefits from OPM

pursuant to the terms of the divorce decree. OPM found that because the deceased

husband was married to a second wife at the time of his death, the second wife would

share in the survivor annuity, and accordingly reduced petitioner’s benefits.            79

M.S.P.R. at 660-61. Petitioner appealed OPM’s decision to the Board, but the appeal

was untimely. The full Board nonetheless reopened the case because OPM had plainly

erred. The evidence conclusively demonstrated that the second wife had divorced the

husband prior to his death, and was not entitled to share in the survivor annuity. Id. at

662. The full Board thus remanded the case to OPM for a new determination. See also

Beck v. Gen. Servs. Admin., 86 M.S.P.R. 489 (2000) (reopening case despite untimely

petition for review because the initial decision directly conflicted with this court’s

precedent). We agree with the Board that it has authority to reopen a case to prevent

manifest injustice. See Wright v. United States Postal Serv., 183 F.3d 1328, 1332 (Fed.

Cir. 1999) (“The board has broad discretion in deciding whether reconsideration of a

decision is necessary to preserve consistency or achieve ‘the right result.’” (citing

Azarkhish, 915 F.2d at 679)).

       The circumstances of this case are similar. OPM denied Timmers’ claim for

survivor annuity benefits because 5 U.S.C. § 8341(h) provides: “[A] former spouse of a

deceased employee . . is entitled to a survivor annuity . . . if and to the extent expressly

provided for . . . in the terms of any decree of divorce.” OPM held that the decree did

not “expressly” provide for a survivor annuity, and the administrative judge agreed.

They are plainly wrong. The divorce decree, which was presented to OPM and the




04-3279                                     6
administrative judge, unambiguously states: “[Timmers’] entitlement to death benefits is

. . . fixed as of date of the Decree, utilizing the same apportionment as would be utilized

if [Rausch] begins receiving his pension benefits at age 62.” (Resp’t App. at 41-42.)

The reference to “death benefits” appears sufficient to establish an entitlement to a

survivor annuity. Hokanson, 122 F.3d at 1046.

       We recognize the broad discretion that the Board has in deciding whether to

reopen a case pursuant to 5 C.F.R. § 1201.118. However, if there is not already “ample

justification for the board to exercise this discretion here,” Wright, 183 F.3d at 1332-33,

there certainly is good reason for the Board to consider whether to exercise that

discretion. OPM’s reconsideration decision appears inconsistent with Hokanson, which

would bring this case within the purview of Fields and Beck. At the same time, although

she couched the request in terms of the timeliness issue, Timmers asked the Board to

reopen. Under these particular circumstances, we think a remand is required. Thus,

while we affirm the denial of the petition for review, we remand the case to the Board for

it to determine whether OPM made a manifest error which requires reopening under 5

C.F.R. § 1201.118 under the rationale of Fields and Beck.

                                     CONCLUSION

       The decision of the Board is affirmed insofar as it denied Timmers’ petition for

review. Otherwise, the case is remanded for further proceedings consistent with this

opinion.

                                         COSTS

       No costs.




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