                 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

                                        06-3156

                           THE ESTATE OF BETTY L. COX,

                                                       Petitioner,

                                           v.

                      OFFICE OF PERSONNEL MANAGEMENT,

                                                       Respondent.



                           __________________________

                             DECIDED: November 9, 2006

                           __________________________



Before MAYER, BRYSON, and LINN, Circuit Judges.

PER CURIAM.

      The Estate of Betty L. Cox (“Cox”) petitions for review of a final decision of the

Merit Systems Protection Board (“Board”) affirming the Office of Personnel

Management’s (“OPM”) decision that Cox was not eligible to apply for and receive

survivor annuity benefits. Estate of Cox v. Office Pers. Mgmt., No. DA-0831-05-0558-I-

1 (M.S.P.B. Nov. 23, 2005) (“Order”). Because the Board’s decision is in accordance

with law and does not otherwise contain reversible error, we affirm.
                                      BACKGROUND

       Earl Cox retired from the Department of Justice on February 1, 1978. At the time

of his retirement, Earl Cox elected a survivor annuity for his wife, Betty H. Cox, pursuant

to the Civil Service Retirement System (“CSRS”). Earl Cox died on October 30, 2003.

His death was not reported to OPM, which continued to deposit his annuity into a bank

account. Betty H. Cox died on September 7, 2004. After her death, Kenneth E. Cox,

the executor of her estate, notified OPM that both his mother and father had died and

sought survivor benefits on behalf of his mother for the period of time between their

deaths. OPM determined that benefits were not payable because the application for

survivor benefits was not filed during the lifetime of Betty H. Cox. Order, slip op. at 2.

       Cox filed a petition for review of OPM’s decision with the Board. In an initial

decision, the administrative judge affirmed OPM’s decision, citing 5 U.S.C. §§ 8345(e),

8331(11),1 5 C.F.R. § 831.643, and our decision in Davis v. Office of Personnel

Management, 918 F.2d 944 (Fed. Cir. 1990). Order, slip op. at 3-5. The administrative

judge’s initial decision became the final decision of the Board on December 28, 2005

when Cox chose not to petition the Board for review. See 5 C.F.R. § 1201.113. This

appeal followed. We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(9).




       1
              Section 8345 of the statute provides, in relevant part, that

       after the death of an employee, Member, or annuitant, no benefit based on
       his service shall be paid from the Fund unless an application therefore is
       received in the Office of Personnel Management within 30 years after the
       death or other event which gives rise to title to the benefit.

       5 U.S.C. § 8345(i)(2). A survivor annuitant is defined as “a survivor who files
claim for annuity.” Id. § 8331(11).



06-3156                                   2
                                       DISCUSSION

                                   A. Standard of Review

       This court must affirm a Board decision unless it is: “(1) arbitrary, capricious, an

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

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

by substantial evidence.” 5 U.S.C. § 7703(c); see also Hayes v. Dep’t of the Navy, 727

F.2d 1535, 1537 (Fed. Cir. 1984). The burden of establishing reversible error in a

Board decision rests upon the petitioner. Harris v. Dep’t of Veterans Affairs, 142 F.3d

1463, 1467 (Fed. Cir. 1998).

                                         B. Analysis

       On appeal, Cox argues that our decision in Simpson v. Office of Personnel

Management, 347 F.3d 1361 (Fed. Cir. 2003), overturned our previous decision in

Davis. Alternatively, Cox argues that Davis conflicts with earlier precedent, Roebling v.

Office of Personnel Management, 788 F.2d 1544 (Fed. Cir. 1986), and was therefore

wrongly decided.

       As Cox acknowledges, the facts in Davis are very similar to those at issue in this

case. In Davis, the annuitant elected a survivor annuity for his wife. 918 F.2d at 945.

The annuitant died, and his wife died shortly thereafter without having filed a survivor’s

claim to an annuity. Id. We held that 5 U.S.C. §§ 8345(e), 8331(11) and the relevant

regulations provide that a right to a survivor annuity “does not vest automatically; an

application must first be filed before there is any entitlement to a survivor annuity.” Id. at

946. We also held that the application must be filed before the survivor’s death. Id.




06-3156                                   3
“Accordingly, if a potential survivor annuitant does not make application during his or

her lifetime, there can be no accrual of any unpaid annuity.” Id.

       Cox argues that Simpson renders Davis inapplicable by creating a general duty

on OPM to advise individuals of their retirement rights. We disagree. In Simpson, we

noted that OPM had a statutory duty to inform an annuitant of the requirements that

must be met to reelect a spousal annuity after a divorce. 347 F.3d at 1364. Because

“OPM’s notices of record fail[ed] to comply with the statutory requirement of notice,” we

reversed the Board’s denial of the former spouse’s application for a survivor annuity. Id.

at 1364, 1367 (emphasis added). However, as we acknowledged in Davis, “[t]here is no

statutory duty imposed on OPM to notify potential survivor annuitants of the requirement

to file a claim for an annuity.” 918 F.2d at 946. Because Cox was a potential survivor

annuitant, and not an annuitant, Simpson is inapposite.

       Cox’s remaining alternative arguments are unpersuasive.        The administrative

judge correctly applied 5 U.S.C. §§ 8345(e), 8331(11), 5 C.F.R. § 831.643, and our

decision in Davis. Because the Board’s decision is in accordance with law and does not

otherwise contain reversible error, we affirm.




06-3156                                  4
