                    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


                                         04-3154

                                   LIGAYA I. CARINIO,

                                                                            Petitioner,

                                              v.

                      OFFICE OF PERSONNEL MANAGEMENT,

                                                                            Respondent.

                            __________________________

                            DECIDED: November 4, 2004
                            __________________________


Before CLEVENGER, RADER and BRYSON, Circuit Judges.

PER CURIAM.


       Ligaya I. Carinio seeks review of the final decision of the Merit Systems

Protection Board (“Board”) affirming the reconsideration decision of the Office of

Personnel Management (“OPM”) denying her request for survivor benefits based on her

late   husband’s   government      service.        Carinio   v.    Office    of   Pers.   Mgmt.,

No. SE0831020347-I-1 (Jan. 21, 2004). We affirm.

                                              I

       Under 5 U.S.C. ' 8339(j)(5)(C)(i), Ms. Carinio’s late husband had two years from

the date of his marriage to Ms. Carinio in which to elect her as a beneficiary of his death

benefits, and thereby entitle her to survivor benefits.           In her appeal to the Board,

Ms. Carinio conceded that her late husband had never made the required election in
order to entitle her to the benefits she seeks. She instead challenged whether OPM

had ever sent Mr. Carinio the required notice informing him of his right to make the

election in her favor. In cases where it can be shown that OPM failed to give the

required notice, the time period for making the requisite election may be waived. See

Brush v. Office of Pers. Mgmt., 982 F.2d 1554, 1559-60 (Fed. Cir. 1992).

       OPM responded to Ms. Carinio’s challenge by evidence showing that it in fact

had sent the required notices to Mr. Carinio. In response to Ms. Carinio’s argument that

OPM may have failed to update its address for Mr. Carinio to reflect his Philippines

address, the record showed that Mr. Carinio had in fact received his monthly annuity

checks at his address in the Philippines. This evidence showed that Mr. Carinio had

updated his address with OPM. Based on the record before it, the Board concluded

that OPM had mailed the required notices to Mr. Carinio in 1989 and 1990 to his

Philippines address. That being the case, there is no ground upon which Ms. Carinio

could claim entitlement to survivor benefits, since there is no way to escape from the

failure of Mr. Carinio to have made the necessary election on time. The Board thus

affirmed OPM’s reconsideration decision.

                                             II

       We must affirm the final decision of the Board unless we determine that it is

arbitrary, capricious, and abuse of discretion or otherwise not in accordance with law.

Where the Board’s final decision rests on findings of fact, those findings must be

supported by substantial evidence. 5 U.S.C. ' 7703(c) (2000).

       In this case, the Board’s final decision rests on its finding that OPM did send the

required notices to Mr. Carinio informing him of his rights to elect in Ms. Carinio’s favor.




04-3154                                  2
Substantial evidence supports that finding; indeed there is no evidence to the contrary.

We therefore must affirm the final decision of the Board, and we do so.




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