                          UNITED STATES OF AMERICA
                       MERIT SYSTEMS PROTECTION BOARD


     DORIS K. JONES,                                 DOCKET NUMBER
                         Appellant,                  CH-0831-14-0566-I-1

                  v.

     OFFICE OF PERSONNEL                             DATE: May 14, 2015
       MANAGEMENT,
                   Agency.



             THIS FINAL ORDER IS NO NPRECEDENTIAL 1

           Doris K. Jones, Elyria, Ohio, pro se.

           Roxann Johnson, 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 Office of Personnel Management’s (OPM’s) reconsideration decision
     that denied her request for a survivor annuity. Generally, we grant petitions such
     as this one only when: the initial decision contains erroneous findings of material


     1
        A nonprecedential order is one that the Board has determined does not add
     sign ificantly 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 Parties may cite nonprecedential orders,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

     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
     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, and based on the following points and authorities, 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 appellant filed an appeal from OPM’s reconsideration decision denying
     her request for a survivor annuity as the former spouse of William Jones. Initial
     Appeal File (IAF), Tab 1. The appellant and Mr. Jones were married in 1991.
     IAF, Tab 6 at 52.     He retired on June 30, 2004, at which time he elected a
     survivor annuity for the appellant.    Id. at 52-53.    Although the appellant and
     Mr. Jones divorced on May 27, 2005, he did not notify OPM of the divorce and
     he continued to receive a reduced annuity until his death on September 4, 2013,
     108 months later. Id. at 15, 24-39. OPM denied the appellant’s application on
     October 30, 2013.     Id. at 17.   On reconsideration, OPM reversed its initial
     decision and determined on April 15, 2014, that she was eligible for a survivor
     annuity. Id. at 11. OPM subsequently rescinded its April 15 determination and
     affirmed its initial decision on May 6, 2014.          Id. at 6.   OPM denied the
     appellant’s application on the basis that the divorce decree did not provide for the
     former spouse annuity, and because Mr. Jones did not elect to provide for an
     annuity within 2 years of the divorce. Id. at 6-10.
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¶3        After holding a hearing, the administrative judge affirmed OPM’s
     reconsideration decision, finding that the appellant and Mr. Jones divorced on
     May 27, 2005, that the court decree did not provide for a former spouse annuity,
     and that there is no court order or court-approved property settlement that
     provides for such an annuity.     IAF, Tab 14, Initial Decision (ID) at 5.     The
     administrative judge found further that Mr. Jones received OPM’s annual notices
     in December 2005, and December 2006, which were fully compliant with
     statutory requirements to advise him that he had to make a new election to
     provide a survivor annuity for a former spouse, but that he failed to elect a
     survivor annuity for the appellant. ID at 3-7. To the extent the appellant argued
     that there is no evidence that Mr. Jones received the notices, the administrative
     judge found that OPM’s affidavit stating that notices were sent to all annuitants,
     along with copies of the 2005 and 2006 notices, was sufficient to meet OPM’s
     burden of showing that Mr. Jones was on notice and that the appellant did not
     meet her burden of showing that he did not receive them.           Accordingly, the
     administrative judge found that the appellant had not met her burden of proving
     her eligibility for the survivor annuity benefit she sought. ID at 8.
¶4        The burden of proving entitlement to a survivor annuity is on the applicant
     for benefits.   Cheeseman v. Office of Personnel Management, 791 F.2d 138,
     140-41 (Fed. Cir. 1986).      A divorce terminates a prior election of spousal
     survivor benefits. 5 U.S.C. § 8339(j)(5)(A). A former spouse of an annuitant is
     entitled to a survivor annuity if and to the extent expressly provided for in an
     election under 5 U.S.C. § 8339(j)(3) or in the terms of any decree or divorce or
     annulment or any court order or court-approved property settlement incident to
     such decree, as specified in 5 U.S.C. § 8341(h)(1). The election under 5 U.S.C.
     § 8339(j)(3) shall be made at the time of retirement or, if later, within 2 years
     after the date on which the marriage of the former spouse is dissolved. 5 C.F.R.
     § 831.632. Under 5 U.S.C. § 8339(j) and (k)(2), OPM is required by statute to
                                                                                       4

     notify annuitants annually of their survivor annuity election rights.      Brush v.
     Office of Personnel Management, 982 F.2d 1554, 1559-60 (Fed. Cir. 1992).
¶5        On review, the appellant asserts that there are factual discrepancies in the
     initial decision which may have caused the administrative judge to reach the
     wrong result. Petition for Review (PFR) File, Tab 1. For instance, she argues
     that, while the “divorce decree makes no mention of an annuity,” the divorce
     decree also does not state that there was no annuity. The appellant asserts that,
     because Mr. Jones had elected a survivor annuity prior to his retirement, he felt
     no need to mention the annuity in the decree. Id. However, where a divorce
     decree does not explicitly provide for a survivor annuity, as is the case here, the
     former spouse would have had to make a timely election under 5 U.S.C.
     § 8339(j)(3), which Mr. Jones did not do.      The appellant also asserts that the
     administrative judge erred in stating that she testified during the hearing that her
     former spouse handled his mail with his sister, when she actually stated that his
     sister handled his mail after his death, not while he still was living. PFR File,
     Tab 1. The administrative judge stated in the initial decision that “Ms. Jones
     testified that Mr. Jones and his sister handled his mail, so she was not privy to
     whether he received the annual notices.”      ID at 6.    This statement does not
     specify, as asserted, whether Mr. Jones’ sister handled his mail before or after his
     death.      Moreover, even if the administrative judge’s statement is incorrect,
     because the appellant has not shown how this may have caused the administrative
     judge to reach the wrong result, it provides no basis for reversal of the initial
     decision.
¶6        The appellant also raises numerous challenges to OPM’s evidence that it
     mailed annual notices to Mr. Jones in December 2004, and December 2005. PFR
     File, Tab 1. Public Law 95-317, 92 Stat. 382 (1978), requires OPM to send out
     general notices warning annuitants of the survivor annuity benefits elections
     available to them under 5 U.S.C. §§ 8339(j), 8339(k)(2) and 8339(o) at least once
     every 12 consecutive months. See 5 C.F.R. § 831.681. This statutory deadline
                                                                                      5

     can be waived, however, if the annuitant did not receive the annual notice that
     OPM was required to send annuitants about the right to make an election.
     Schoemakers v. Office of Personnel Management, 73 M.S.P.R. 335, 38 (1997),
     aff’d, 180 F.3d 1377 (Fed. Cir. 1999). OPM bears the burden of proving that the
     notices actually were sent and must offer proof as to the mailing and the actual
     content of the notice. Brush, 982 F.2d at 1561. A bare allegation that the notices
     were mailed is not sufficient. However, once OPM establishes through credible
     evidence that it is more probable than not that the annual notice was sent, the
     burden of proof shifts to the appellant to prove that the annual notice never was
     received. Id.
¶7        OPM has submitted the affidavit of an individual, who administers the
     contract for printing and distribution of forms and notices for the Retirement and
     Insurance Service of OPM, and a copy of the notices sent to the annuitants in
     2004 and 2005. IAF, Tab 6 at 40-51. In this affidavit, the OPM employee states
     that general notices about the survivor benefit elections were sent to all
     annuitants in December 2005, and December 2006. Id. The mailing list for the
     notices was generated from OPM’s computer master annuity roll. A computer
     tape listing all annuitants and their correspondence addresses is created and
     maintained by the Center for Information Services, Benefits Systems Group
     (BSG). BSG then generates a computer tape, which is sent to a private contract
     firm specializing in mass mailing, which then generates mailing labels for the
     notices and sends notices to every annuitant on the tape. Id. The U.S. Court of
     Appeals for the Federal Circuit and the Board have held that an affidavit by an
     OPM official familiar with the history of OPM notices stating that OPM general
     annual notices of elections, including the election rights at issue in this appeal,
     were sent to all annuitants at the relevant times constitutes probative evidence
     that, if unrebutted, proves that OPM provided the required notices. See Darsigny
     v. Office of Personnel Management, 787 F.2d 1555, 1559 (Fed. Cir. 1986); see
     also Alton v. Office of Personnel Management, 40 M.S.P.R. 292, 294-95 (1989).
                                                                                       6

     Thus, the OPM employee’s affidavit and the copy of the annual notices he
     referred to provide the probative evidence that OPM sent Mr. Jones the required
     notices in December 2005, and December 2006, after he and the appellant had
     divorced.   The burden of proof thus shifts to the appellant to prove that her
     former husband did not receive notice of the requirements for an election to
     receive a reduced annuity.
¶8         Here, the appellant does not provide any evidence that Mr. Jones did not
     receive the notices.    Rather, she challenges OPM’s mailing procedures and
     evidence and asserts that Mr. Jones must not have received the notices because he
     intended that she was to receive a former spouse survivor annuity.        As stated
     above, however, the Board and the court have found OPM’s affidavit and
     evidence sufficient to establish a proper mailing. Darsigny, 787 F.2d at 1559;
     Alton, 40 M.S.P.R. at 294-95. Further, Mr. Jones’ mailing address apparently
     remained the same from when he retired until his death in 2013, and the appellant
     has not alleged that her deceased former husband was having difficulty receiving
     his annuity checks or any other mail from OPM at that address. IAF, Tabs 1, 9,
     11.
¶9         The appellant also contends that, because her former spouse continued to
     receive a reduced annuity following their divorce and because his annuity
     adjustments as late as January 2013, continued to indicate that his monthly
     survivor annuity was payable to her, see IAF, Tab 1 at 8, he may have believed
     that he did not need to take any further action to provide a former spouse annuity,
     PFR File, Tab 1. Although Mr. Jones may have believed that the reduction in his
     annuity established a survivor annuity for the appellant, the reduction was the
     result of his failure to notify OPM that they had divorced, as was required by
     5 U.S.C. § 8339(j)(3). 2 Thus, even though Mr. Jones erroneously continued to

     2
      OPM has acknowledged that any erroneous reduction of Mr. Jones’ annuity constitutes
     accrued annuity that will be paid under the order of precedence since no survivor
     annuity is payable. IAF, Tab 12 at 5; see 5 U.S.C. § 8342.
                                                                                        7

      receive a reduced annuity, this does not provide a basis upon which to waive the
      election requirement.
¶10        Although the appellant’s case is sympathetic, we agree with the
      administrative judge that she has cited no law, rule, or regulation that permits a
      waiver of the election requirement. Accordingly, because the appellant has not
      met the statutory requirements for a former spouse survivor annuity, the
      administrative judge correctly affirmed OPM’s reconsideration decision.         See
      Office of Personnel Management v. Richmond, 496 U.S. 414, 416, 434 (1990) (the
      Board cannot order payment of retirement benefits when the statutory conditions
      for such benefits have not been met).

                      NOTICE TO THE APPELLANT REGARDING
                         YOUR FURTHER REVIEW RIGHTS
           You have the right to request review of this final decision by the United
      States 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 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 United States 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 United
                                                                                  8

States     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
United States 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.
