                  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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