             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
                                       04-3317

                                HOWARD A. BENDER,

                                                Petitioner,

                                           v.

                     OFFICE OF PERSONNEL MANAGEMENT,

                                                Respondent.

                            _________________________

                            DECIDED: February 11, 2005
                            _________________________

Before LOURIE, Circuit Judge, PLAGER, Senior Circuit Judge, and
DYK, Circuit Judge.

PER CURIAM.

      Howard A. Bender appeals from the final decision of the Merit Systems

Protection Board denying his petition for review. Bender v. OPM, No. CH-0831-03-

0590-I-1 (M.S.P.B. Mar. 30, 2004) (“Final Order”). We affirm.

                                   BACKGROUND

      Howard A. Bender was formerly a civilian employee at the Department of the Air

Force and retired under the Civil Service Retirement System. Bender v. OPM, No. CH-

0831-03-0590-I-1, slip op. at 2 (M.S.P.B. July 28, 2003) (“Initial Decision”). Bender’s

first marriage was to Margaret Bender, but that marriage ended, and on November 24,

1999, Bender married Judy Bender. Id. This appeal involves Bender’s attempt to elect
a survivor annuity benefit (“annuity”) for his second wife after the statutory deadline for

electing the annuity had passed. Id., slip op. at 1.

       After conducting a telephone hearing, the Administrative Judge (“AJ”) sustained

OPM’s decision denying Bender’s attempt to elect an annuity for Judy Bender.              In

reaching that decision, the AJ concluded that Bender did not meet his burden of proving

that there were circumstances in this case that would have allowed OPM to waive its

statutory deadline for electing the annuity.

       The AJ considered the pertinent law as it existed at the time of Bender’s

retirement. Under 5 U.S.C. § 8339(k)(2)(A), Bender had two years from the date of his

marriage to elect the annuity. The AJ determined that because he did not attempt to

elect the annuity for his second wife until over three years after their marriage, Bender’s

election was untimely and properly denied.

       To excuse his delay, Bender argued before the AJ that he was unaware of the

deadline to elect the annuity. The AJ recognized that there is an exemption to the two-

year requirement for an annuity election where OPM has failed to show that it complied

with the notice requirement of 5 U.S.C. § 8839. Id., slip op. at 2. The AJ, however,

concluded that OPM met that burden through the affidavit of Donna Lease, who

managed the printing and distribution of forms and notices for OPM’s Retirement and

Insurance Group.     Id., slip op. at 2-3. Lease stated in her affidavit that all annuitants

were mailed a copy of a general notice with the requirements for a survivor annuity

election every year.     Id., slip op. at 3.         Moreover, according to the AJ, it was

uncontested that OPM had the correct address for Bender. Id. Thus, the AJ found that

OPM mailed copies of the notice to Bender every year from 1989 to 2000. Id.




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       To rebut OPM’s showing of notice, Bender testified that he did not remember

receiving forms from OPM containing information relating to the requirements for an

annuity election during the relevant time frame, but he also acknowledged that it was

possible that he received that information.           Id.   The AJ noted the equivocality of

Bender’s testimony. Id. The AJ also found that it was improbable that Bender failed to

receive any of the twelve Notice of Annuity Adjustment forms sent by OPM explaining

the election requirements. Id. Thus, the AJ concluded that Bender had not rebutted the

presumption that he received OPM’s timely notification relating to the deadline for filing

a request for an annuity. Id., slip op. at 4.

       To justify his delay, Bender also argued to the AJ that OPM provided incorrect

information to his wife regarding her eligibility for an annuity. According to Bender, his

wife telephoned OPM, and an official at OPM told her that she could not receive an

annuity. In weighing Bender’s testimony, the AJ noted that Bender’s wife did not recall

any details of the telephone conference that she allegedly had with OPM, including the

specific questions she asked or the specific responses she received. Thus, the AJ

decided that it was not possible to know if OPM provided incorrect information to

Bender’s wife or if she simply misunderstood accurate information given to her by OPM.

       Instead, the AJ determined that, based on Bender’s testimony, it was most likely

that Bender’s wife telephoned OPM in January 2000, in which case OPM’s alleged

response that Bender’s wife was ineligible to receive an annuity would have been

correct at that time. See 5 U.S.C. § 8339(j)(5)(C)(ii) (providing that upon remarriage,

the benefiting spouse cannot receive survivor annuity earlier than nine months after the

date of the remarriage).       Nonetheless, the AJ also concluded that any incorrect




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information provided by OPM to Bender’s wife was irrelevant because she did not have

the right herself to elect survivor annuity benefits.       Furthermore, the AJ found that

because OPM provided accurate information to Bender concerning election procedures

in the form of mailed notices, a reasonable person would not have been misled by

OPM’s alleged second-hand statements to Bender’s wife.                  Accordingly, the AJ

determined that Bender did not meet his burden of showing that OPM made incorrect or

misleading statements to Bender’s wife.

       Bender petitioned the full Board for review of the Initial Decision. Concluding that

there was no new, previously unavailable evidence and that the AJ made no error in law

or regulation that affected the outcome of the appeal, the Board denied Bender’s

petition, rendering the Initial Decision final. Final Order, slip op. at 1-2.

       Bender timely appealed to this court. We have jurisdiction pursuant to 28 U.S.C.

§ 1295(a)(9).

                                        DISCUSSION

       Congress has expressly limited the scope of our review in an appeal from the

Board. Specifically, we must affirm the Board’s decision unless we find it to be arbitrary,

capricious, an abuse of discretion, or otherwise not in accordance with law; obtained

without procedures required by law, rule, or regulation having been followed; or

unsupported by substantial evidence. 5 U.S.C. § 7703(c) (2000); Ellison v. Merit Sys.

Prot. Bd., 7 F.3d 1031, 1034 (Fed. Cir. 1993). “Under the substantial evidence standard

of review, a court will not overturn an agency decision if it is supported by ‘such relevant

evidence as a reasonable mind might accept as adequate to support a conclusion.’”

Jacobs v. Dep’t of Justice, 35 F.3d 1543, 1546 (Fed. Cir. 1994) (quoting Consol. Edison




04-3317                                       -4-
Co. of N.Y. v. NLRB, 305 U.S. 197, 229 (1938)). Moreover, the Supreme Court has

explained that “the possibility of drawing two inconsistent conclusions from the evidence

does not prevent an administrative agency’s findings from being supported by

substantial evidence.” Consolo v. Fed. Mar. Comm’n, 383 U.S. 607, 620 (1966).

       On appeal, Bender does not dispute that he failed to elect an annuity within two

years of his marriage to Judy Bender. Bender also does not contest the AJ’s factual

finding that he received timely notice from OPM regarding the requirements for electing

the annuity. Accordingly, we will sustain the Board’s denial of Bender’s petition for

review unless Bender can demonstrate that the AJ lacked substantial evidence in

finding that a reasonable person in Bender’s situation would not have been misled by

allegedly conflicting statements that OPM provided to Bender’s wife.

       At bottom, the success of Bender’s appeal is contingent upon this court re-

weighing Bender’s testimony and contradicting the AJ’s factual finding regarding the

substance of the telephone conference that allegedly took place between Bender’s wife

and OPM. Bender argues that, contrary to the AJ’s finding, OPM provided Bender’s

wife with misleading information by stating that she was ineligible for an annuity.

       We conclude that Bender has not presented sufficient evidence to contradict the

AJ’s findings.   It is undisputed that Bender’s wife did not remember the specific

questions she asked OPM or OPM’s specific responses to her questions, and Bender

does not provide any supplemental information from the record in his brief to shed light

on that telephone conference. Thus, we agree with the AJ that it is not possible to know

whether OPM gave Bender any incorrect or misleading information.             Indeed, if we

accept the AJ’s finding that Bender’s wife most likely telephoned OPM in January 2000,




04-3317                                     -5-
OPM’s purported response that Bender’s wife was ineligible for survivor annuity benefits

would not have been incorrect. See 5 U.S.C. § 8339(j)(5)(C)(ii).

       Bender also appears to argue that OPM indirectly misled him by not specifically

informing his wife during her telephone conference with OPM that she would not be

eligible for survivor annuity benefits for nine months after the date of their marriage, but

that she would be eligible for an annuity after that period. Bender’s brief notably fails to

explain how OPM was charged with the duty of informing Bender’s wife of the nine-

month waiting period, especially considering that we do not even know what questions

Bender’s wife posed to OPM. We must defer to the AJ’s factual finding that OPM did

not disseminate misleading information, and Bender has provided no more than vague

and conclusory recollections to overturn that finding.

       In view of the AJ’s finding that Bender failed to establish that OPM provided him

with misleading information—a finding that we have sustained—Bender’s assertion that

a reasonable person would have been confused by allegedly conflicting information

from OPM is baseless.       Bender argues that he was given conflicting information

because OPM’s Notice of Annuity Adjustment did not inform him of the nine-month

waiting period for remarried couples and that OPM, through its telephone conference

with Bender’s wife, indirectly informed him that she was ineligible for an annuity. As a

practical matter, we do not see how there could have been conflicting information when

Bender did not even review the OPM’s Notice of Annuity Adjustment until late

December 2002 or early January 2003, long after the two-year deadline for electing the

benefit had passed.      Moreover, without establishing how OPM provided incorrect

information to Bender’s wife over the telephone regarding survivor annuity benefit




04-3317                                     -6-
eligibility, we cannot conclude that the AJ lacked substantial evidence to find that

Bender would not have been confused by OPM’s telephone statements.

                                   CONCLUSION

      For the foregoing reasons, we affirm the Board’s decision.




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