                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     ALEJANDRA S. TAYLOR,                            DOCKET NUMBER
                   Appellant,                        SF-0831-15-0521-I-1

                  v.

     OFFICE OF PERSONNEL                             DATE: February 11, 2016
       MANAGEMENT,
                   Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Rodelio V. Mendoza, Camarines Sur, Philippines, for the appellant.

           Kristine Prentice, Washington, D.C., for the agency.


                                           BEFORE

                              Susan Tsui Grundmann, Chairman
                                 Mark A. Robbins, Member


                                       FINAL ORDER

¶1         The appellant has filed a petition for review of the initial decision, which
     affirmed the decision of the Office of Personnel Management (OPM) to deny her
     November 25, 2012 application for death benefits and a survivor annuity under
     the Civil Service Retirement System (CSRS). Generally, we grant petitions such


     1
        A nonprecedential order is one that the Board has determined does not add
     significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
     but such orders have no precedential value; the Board and administrative judges are not
     required to follow or distinguish them in any future decisions. In contrast, a
     precedential decision issued as an Opinion and Order has been identified by the Board
     as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
                                                                                       2

     as this one only when: the initial decision contains erroneous findings of material
     fact; the initial decision is based on an erroneous interpretation of statute or
     regulation or the erroneous application of the law to the facts of the case; the
     administrative judge’s rulings during either the course of the appeal or the initial
     decision were not consistent with required procedures or involved an abuse of
     discretion, and the resulting error affected the outcome of the case; or new and
     material evidence or legal argument is available that, despite the petitioner’s due
     diligence, was not available when the record closed. See title 5 of the Code of
     Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115).           After fully
     considering the filings in this appeal, we conclude that the petitioner has not
     established any basis under section 1201.115 for granting the petition for review.
     Therefore, we DENY the petition for review and AFFIRM the initial decision,
     which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
¶2         The following facts are undisputed. The appellant’s now-deceased husband
     (“annuitant”) retired from the Federal service under CSRS in approximately 1991.
     Initial Appeal File (IAF), Tab 6 at 50-54. When he retired, the annuitant elected
     an annuity benefit payable only during his lifetime with the consent of his
     then-wife. Id. at 50, 53. He divorced his spouse in 1998, and he married the
     appellant on February 18, 1999. Id. at 9, 25. The annuitant contacted OPM in
     2005 and attempted to elect a survivor annuity for the appellant. Id. at 43, 49-50.
     OPM issued a decision on November 25, 2005, denying the annuitant’s request as
     untimely filed because he failed to notify OPM of his election within 2 years of
     his marriage to the appellant as required by law.      Id. at 40.   Although OPM
     advised the annuitant of his right to request reconsideration, there is no evidence
     that he requested reconsideration before his death on April 23, 2006. Id. at 4,
     10, 40.
¶3        After the annuitant’s death, the appellant filed an application for benefits
     based on her late husband’s Federal service.           Id. at 19-23, 32-38.      On
     February 14, 2013, OPM denied the appellant’s application for survivor annuity
                                                                                        3

     benefits because OPM did not receive a signed writing from her late husband
     electing a survivor annuity within 2 years of their marriage. 2 Id. at 14. OPM’s
     February 14, 2013 letter did not advise the appellant she could request
     reconsideration. The appellant filed an appeal with the Board challenging OPM’s
     decision to deny her application for a survivor annuity, and she waived her right
     to hearing. IAF, Tab 1 at 2, 5. OPM filed a motion to dismiss the appeal because
     it had not yet issued a final decision on this matter. IAF, Tab 6.
¶4        The administrative judge found that the Board had jurisdiction over the
     appeal and affirmed OPM’s decision. IAF, Tab 13, Initial Decision (ID) at 1, 3,
     Tab 10 at 2.   In relevant part, the administrative judge found that, although
     OPM’s representative asserted that OPM would issue a final decision, OPM had
     failed to submit evidence indicating that it would issue a final decision in this
     matter. IAF, Tab 10 at 2. Further, in the initial decision, the administrative judge
     found that OPM proved that it sent the annuitant annual notice of the
     requirements for electing a survivor annuity, and that preponderant evidence
     showed that he failed to make a timely election of a survivor annuity for the
     appellant. ID at 4-6. The administrative judge also found that none of the bases
     for waiving a filing deadline prescribed by statute or regulation applied in the
     appellant’s case, and that the Board had no authority to grant the appellant’s
     request to waive the filing deadline for good cause. ID at 4, 6-7. The appellant
     filed a petition for review, and OPM responded in opposition to her petition.
     Petition for Review (PFR) File, Tabs 1, 4.
¶5        The burden      of   proving entitlement    to a    survivor annuity,     by a
     preponderance of the evidence, is on the applicant for benefits. Cheeseman v.
     Office of Personnel Management, 791 F.2d 138, 140-41 (Fed. Cir. 1986).
     Pursuant to 5 U.S.C. § 8341(b)(1), the “widow” of an employee who retired under

     2
       In the February 14, 2013 decision letter, OPM also denied the appellant’s claim for
     death benefits on the ground that she already received her lump sum death benefit.
     IAF, Tab 6 at 14.
                                                                                             4

     CSRS is entitled to a survivor annuity unless the right to a survivor annuity was
     waived   under   5 U.S.C.   § 8339(j)(1)   or,   in   the   case    of     remarriage   or
     post-retirement marriage, the employee did not file a timely election under
     5 U.S.C. §§ 8339(j)(5)(C)(i) or 8339(k)(2).
¶6         OPM has a statutory obligation to notify each annuitant annually of the
     requirements under 5 U.S.C. § 8339(j) for electing a survivor annuity benefit.
     Allen v. Office of Personnel Management, 99 M.S.P.R. 653, ¶ 6 (2005). OPM
     also bears the burden of proving that the notice was sent. Nunes v. Office of
     Personnel Management, 111 M.S.P.R. 221, ¶ 20 (2009).                When an appellant
     makes a nonfrivolous allegation that OPM has failed to send the required
     statutory notice, the burden of production falls to OPM.           Id.    OPM bears the
     ultimate burden of persuasion on the issue of whether it sent the notice. Id. OPM
     is required to show beyond making a bare allegation that it actually sent the
     notice, and it must offer proof of the contents of the notice. Id. If OPM can
     establish through credible evidence that it is more probable than not that it sent
     the notice, the burden of going forward falls upon the appellant, who must put
     forth credible testimony or other evidence tending to support his contention that
     he did not receive the notice. Id. The Board then must decide whether to credit
     the appellant’s testimony and whether such testimony overcomes the presumption
     that he received the notice. Id.
¶7         To show that it has fulfilled this mandatory notice obligation, OPM must
     prove that it actually sent the required notice and prove that the content of the
     notice was adequate to inform the annuitant of the specific election requirements
     under sections 8339(j) and (k)(2). Allen, 99 M.S.P.R. 656, ¶ 7. In determining
     whether the content of OPM’s annual notices to an annuitant adequately informed
     him of his election rights, the Board looks to the notice sent immediately after the
     event that would result in his election decision.       Id., ¶ 9.        If OPM does not
     provide an annuitant with sufficient notice, OPM cannot deny a survivor annuity
     based on the annuitant’s failure to make a timely election under section 8339(j) if
                                                                                         5

     the annuitant adequately manifested the intent to provide the survivor annuity in
     question. Id.
¶8         The appellant argues on review that OPM failed to provide sufficient
     evidence that it sent the required annual notice of election to the annuitant. PFR
     File, Tab 1 at 4.   We disagree.     The record reflects that OPM submitted an
     affidavit from the employee who administered the contract for the printing and
     distribution of retirement forms and explained how the annual notices were
     prepared and sent to annuitants during the relevant period. IAF, Tab 12 at 6. In
     her affidavit, the administrator swore that a contractor for OPM sent the legally
     required notices concerning survivor elections to all annuitants at their
     correspondence addresses listed on the master annuity roll in September 1989 and
     1990, and every December from 1991 through 2000.              Id.   The record also
     included OPM’s submission of the December 1999 and 2000 notices, which is the
     relevant period in this case. Id. at 8-11. In both notices, OPM included language
     specifically informing annuitants of their eligibility to elect a survivor annuity for
     spouses married after retirement by sending a signed request to OPM within
     2 years of marriage. Id. at 9, 11.
¶9         Based on the foregoing, we find that OPM’s submissions satisfied the
     standards established by our reviewing court in Brush and Schoemakers.            See
     Brush v. Office of Personnel Management, 982 F.2d 1554, 1560-61 (Fed. Cir.
     1992); Schoemakers v. Office of Personnel Management, 180 F.3d 1377, 1380-81
     (Fed. Cir. 1999). We therefore find that OPM has met its burden of proving that
     it is more probable than not that the annual notices were sent to the annuitant
     during the period when he could have elected a survivor annuity following his
     marriage to the appellant. Because OPM met its initial burden of proof on that
     issue, the burden shifted to the appellant to produce credible testimony or other
     evidence that the annuitant did not receive the annual notice. See Brush, 982 F.2d
     at 1561.   Although on review the appellant reasserts her argument that OPM
     failed to prove that it sent the required annual notices, we agree with the
                                                                                     6

      administrative judge’s finding that the appellant’s general argument does not
      constitute credible evidence sufficient to overcome the presumption that the
      annuitant received the annual notices sent by OPM. PFR File, Tab 1 at 4-5; ID
      at 6.
¶10           On review, the appellant also asks the Board to waive the filing deadline
      because the annuitant was mentally incompetent during the filing period. PFR
      File, Tab 1 at 5. Regardless of the annuitant’s mental status during the election
      period, the Board has no authority to ignore the statutory 2-year window during
      which a recently married retiree may elect a survivor annuity. 3    See 5 U.S.C.
      § 8339(k)(2)(A); Schoemakers, 180 F.3d at 1382 (finding that Congress did not
      intend to permit waiver of the 2-year filing requirement for a survivor annuity
      because of the annuitant’s mental condition).     We therefore deny the petition
      for review.

                       NOTICE TO THE APPELLANT REGARDING
                          YOUR FURTHER REVIEW RIGHTS
              You have the right to request review of this final decision by the U.S.
      Court of Appeals for the Federal Circuit. You must submit your request to the
      court at the following address:
                                United States Court of Appeals
                                    for the Federal Circuit
                                  717 Madison Place, N.W.
                                   Washington, DC 20439

      The court must receive your request for review no later than 60 calendar days
      after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec. 27,
      2012). If you choose to file, be very careful to file on time. The court has held
      that normally it does not have the authority to waive this statutory deadline and


      3
        The appellant submitted medical documentation on appeal showing that her late
      husband had several medical conditions, but that evidence does not reflect any
      diagnosed mental condition. IAF, Tab 11 at 7-17.
                                                                                  7

that filings that do not comply with the deadline must be dismissed. See Pinat v.
Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).
      If you need further information about your right to appeal this decision to
court, you should refer to the Federal law that gives you this right. It is found in
title 5 of the U.S. Code, section 7703 (5 U.S.C. § 7703) (as rev. eff. Dec. 27,
2012). You may read this law as well as other sections of the U.S. Code, at our
website, http://www.mspb.gov/appeals/uscode.htm.        Additional information is
available at the court’s website, www.cafc.uscourts.gov. Of particular relevance
is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained
within the court’s Rules of Practice, and Forms 5, 6, and 11.
      If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Merit Systems Protection Board neither endorses the services provided by any
attorney nor warrants that any attorney will accept representation in a given case.




FOR THE BOARD:                            ______________________________
                                          William D. Spencer
                                          Clerk of the Board
Washington, D.C.
