                 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
                                        04-3255

                              THERESA A. MOSQUEDA,

                                                             Petitioner,

                                           v.

                      OFFICE OF PERSONNEL MANAGEMENT,

                                                             Respondent.

                           ___________________________

                           DECIDED: January 13, 2005
                           ___________________________

Before MICHEL, Chief Judge, RADER and LINN, Circuit Judges.

PER CURIAM

      Appellant, Theresa A. Mosqueda, seeks review of the Merit Systems Protection

Board’s (Board’s) final decision, affirming the Office of Personnel Management’s

(OPM’s) denial of her application to increase her spousal survivor annuity. Mosqueda v.

Office of Personnel Mgmt., No. SE-0831-02-0396-I-1 (MSPB Mar 4, 2004) (Final

Decision). Because the Board’s decision is in accordance with law, this court affirms.

                                    BACKGROUND

      Albert Mosqueda, the annuitant in this matter, worked as a Supervisory General

Supply Specialist at the General Services Administration.      In December 1994, Mr.

Mosqueda sought immediate retirement under the Civil Service Retirement System

(CSRS). In his application, Mr. Mosqueda elected a partial survivor annuity, namely
55% of $10,000 per year for his wife. Mrs. Mosqueda signed the requisite spousal

consent form on December 23, 1994. In January 1995, Mr. Mosqueda retired and in

March 1995, his monthly annuity payments commenced.

      In May 1997, over two years after his retirement, Mr. Mosqueda filed a request

with OPM to change his survivor annuity election.         OPM denied this request as

untimely, noting the eighteen-month deadline under 5 U.S.C. § 8339 (o)(1)(B). On

appeal, the Board affirmed the OPM denial in an initial determination. Mosqueda v.

Office of Personnel Mgmt., No. CH-0831-98-0364-I-1 (MSPB Nov. 17, 1998).              The

Board’s initial determination became final absent Mr. Mosqueda’s petition for review.

      On September 3, 2000, Mr. Mosqueda died. In her application for CSRS survivor

annuity, Mrs. Mosqueda requested the full annuity rather than the partial annuity as

provided for in her husband’s election. OPM denied her request. On appeal, the Board

affirmed OPM’s denial of a full annuity in an initial decision. Mosqueda v. Office of

Personnel Mgmt., No. SE-0831-02-0396-I-1 (MSPB Jan. 27, 2003). Mrs. Mosqueda

filed a petition for review, which the Board denied. Final Decision, slip op. at 2. Mrs.

Mosqueda now appeals to this court.

                                      DISCUSSION

      By statute, this court’s review of a final decision from the Board is limited. A

Board decision may not be set aside unless it is: (1) arbitrary or capricious, an abuse of

discretion, or otherwise not in accordance with law; (2) obtained without procedure

required by law, rule, or regulation having been followed; or (3) unsupported by

substantial evidence. 5 U.S.C. § 7703(c) (2000).




04-3255                                     2
       On appeal, Mrs. Mosqueda argues for the first time that her husband fraudulently

obtained her signature on the spousal consent form.         Specifically, Mrs. Mosqueda

contends that her husband intentionally misled her into believing that the survivor

annuity election could be changed up until he reached the age of 55. Mrs. Mosqueda

posits that her husband lied about the 18 month deadline to avoid receiving lower

retirement payments.

       This court refrains from considering newly-raised arguments on appeal. See

generally Bosley v. Merit Sys. Prot. Bd., 162 F.3d 665, 668 (Fed. Cir. 1998) (“A party in

an MSPB proceeding must raise an issue before the administrative judge if the issue is

to be preserved for review in this court. Thus, if the party fails to raise an issue in the

administrative proceeding or raises an issue for the first time in a petition for review by

the full Board, this court will not consider the issue.” (citations omitted)). Here, the

record reflects that Mrs. Mosqueda never argued to the Board that her husband

fraudulently induced her consent to the partial survivor annuity.           In fact, Mrs.

Mosqueda’s initial hearing transcript reflects her belief at that time that her husband was

misinformed that he could change his election until he reached the age of fifty-five.

Accordingly, this court does not address Mrs. Mosqueda’s new argument on appeal.

       Moreover, the Board’s finding that Mr. and Mrs. Mosqueda’s reliance on any

misinformation may not estop the government from denying full survivor annuity finds

more than adequate legal support. See Office of Personnel Mgmt. v. Richmond, 496

U.S. 414, 434 (1990); see also Koyen v. Office of Personnel Mgmt., 973 F.2d 919, 921-

22 (Fed. Cir. 1992). Because the Board’s decision is in full accord with law, this court

affirms.




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