                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     DONALD RAY THOMAS,                              DOCKET NUMBER
                  Appellant,                         AT-0831-15-0226-I-1

                  v.

     OFFICE OF PERSONNEL                             DATE: September 28, 2015
       MANAGEMENT,
                   Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Wen Houqiong Thomas, Longs, South Carolina, for the appellant.

           Christopher H. Ziebarth, 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 reconsideration decision of the Office of Personnel Management
     (OPM) denying his request to elect a survivor annuity for his current spouse.
     Generally, we grant petitions such as this one only when: the initial decision


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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     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 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).

                      DISCUSSION OF ARGUMENTS ON REVIEW
¶2         The appellant retired from Federal service under the Civil Service
     Retirement System (CSRS) in 1997.        Initial Appeal File (IAF), Tab 9 at 36.
     When he retired, the appellant was unmarried and, on his retirement application,
     he elected an annuity payable only during his lifetime. Id. The appellant married
     his current spouse on July 16, 1999. Id. at 31. The evidence provided by OPM
     reflects that, in December 1999, and December 2000, it sent notices to the
     appellant informing him that, if he married subsequent to his retirement, he had
     2 years from the date of his marriage to elect a survivor annuity for his new
     spouse.   Id. at 12-13, 16-17 (December 1999 notice); IAF, Tab 15 at 5-6
     (December 2000 notice). Approximately 7 years after the marriage, on July 31,
     2006, the appellant sent a request to OPM seeking to elect a survivor annuity for
     his spouse. IAF, Tab 9 at 30. OPM denied the request in an August 31, 2006
     initial decision, which the appellant purportedly never received. See id. at 19;
     IAF, Tab 2 at 20. In July 2013, the appellant submitted a second request and, in
                                                                                            3

     an initial decision dated July 15, 2013, OPM denied the request because the
     appellant had failed to make the election within 2 years of his marriage. IAF,
     Tab 2 at 19, Tab 9 at 29. The appellant requested reconsideration of the second
     initial decision. IAF, Tab 9 at 19. After an intervening Board appeal regarding
     the timeliness of the appellant’s request for reconsideration, OPM issued a
     July 24, 2014 reconsideration decision denying the appellant’s request on the
     ground that he had failed to timely elect a survivor annuity within 2 years of his
     marriage. 2 Id. at 10-11.
¶3         In December 2014, the appellant appealed the July 24, 2014 reconsideration
     decision to the Board, stating that he did not receive the reconsideration decision
     until on or about December 6, 2014. 3 IAF, Tab 1 at 5. He did not request a
     hearing.   Id. at 2.    In an initial decision based on the written record, the
     administrative judge affirmed OPM’s reconsideration decision, finding that the
     appellant did not make a timely election of survivor annuity benefits and that
     there was no basis to waive the statutory deadline. IAF, Tab 16, Initial Decision
     (ID). The appellant has petitioned for review, OPM has responded in opposition

     2
       OPM dismissed the appellant’s request for reconsideration in an October 31, 2013
     reconsideration decision, stating that his request for review of the August 31, 2006
     initial decision was untimely filed by 7 years. IAF, Tab 2 at 17-18. The appellant
     appealed the reconsideration decision to the Board, and the administrative judge
     vacated OPM’s final decision and remanded the matter to OPM for a final appealable
     decision regarding the appellant’s election of a survivor annuity benefit for his spouse.
     Id. at 8-11; see Thomas v. Office of Personnel Management, MSPB Docket No.
     AT-0831-14-0202-I-1, Initial Decision (May 5, 2014). Pursuant to the remand
     instruction, OPM issued the July 24, 2014 reconsideration decision, which is now on
     review. See IAF, Tab 9 at 10-11.
     3
       Although the appellant filed the appeal outside of the 30-day time limit for appealing
     reconsideration decisions to the Board, OPM did not challenge the timeliness of the
     appellant’s Board appeal or his contention that he did not receive a copy of the
     reconsideration decision until December 2014.         See IAF, Tab 9 at 4-5.        The
     administrative judge did not make a specific finding as to the timeliness of the
     appellant’s Board appeal. See IAF, Tab 12. As the agency has not challenged the
     timeliness of the appeal either below or on review, and this matter can be decided on
     the merits, we discern no need to address the timeliness issue. See Ferrin-Rodgers v.
     U.S. Postal Service, 115 M.S.P.R. 140, ¶ 7 (2010).
                                                                                          4

     to the petition for review, and the appellant has submitted a reply. Petition for
     Review (PFR) File, Tabs 1, 5-6.
¶4        When a Federal annuitant is unmarried at the time of his retirement under
     CSRS but marries after retirement, he may elect to provide a survivor annuity for
     his spouse within 2 years after his marriage. 5 U.S.C. § 8339(k)(2)(A); 5 C.F.R.
     § 831.631(b)(1). On review, the appellant acknowledges that he did not contact
     OPM to elect a survivor annuity for his spouse until July 2006, approximately
     7 years after the July 1999 marriage.    See PFR File, Tab 1 at 4.      He seeks a
     waiver of the filing deadline, however, based on his lack of knowledge of the
     deadline to elect a survivor annuity and the financial hardship that will befall his
     spouse if he is unable to provide a survivor annuity for her. See id. at 4-6. The
     appellant also asserts that his spouse never gave him consent to provide her less
     than the maximum current survivor spouse annuity, as discussed in chapter 52 of
     the CSRS/Federal Employees’ Retirement System Handbook. Id. at 5, 11.
¶5        The Board has recognized three bases for waiving a filing deadline
     prescribed by statute or regulation: (1) the statute or regulation may provide for a
     waiver under specified circumstances; (2) an agency’s affirmative misconduct
     may preclude enforcement of the deadline under the doctrine of equitable
     estoppel; and (3) an agency’s failure to provide a notice of rights and the
     applicable filing deadline, where such notice is required by statute or regulation,
     may warrant a waiver of the deadline.       Perez Peraza v. Office of Personnel
     Management, 114 M.S.P.R. 457, ¶ 7 (2010). For the reasons discussed below,
     however, we find that the appellant has not established that he is entitled to
     waiver of the 2-year filing deadline to elect a survivor annuity for a new spouse.
¶6        First, the applicable statute and regulation do not provide for waiver of the
     filing deadline on the basis of an annuitant’s misunderstanding of the time limit
     or on the basis of potential financial hardship if the election is not allowed.
     See 5 U.S.C. § 8339; 5 C.F.R. § 831.631.        Moreover, although the appellant
     asserts that his spouse never gave him consent to provide her less than the
                                                                                      5

     maximum current survivor spouse annuity, the requirement for spousal consent
     pertains only to employees who are married at the time of retirement. 5 U.S.C. §
     8339(j)(1). It is undisputed that the appellant was unmarried when he retired in
     1997 and, thus, the spousal consent requirement did not apply to his situation and
     provides no basis for waiver of the filing deadline.
¶7        Second, the appellant does not allege affirmative misconduct by OPM that
     may preclude enforcement of the 2-year deadline under the doctrine of equitable
     estoppel. Further, there is no evidence in the record to suggest that OPM engaged
     in any affirmative misconduct that could have affected the appellant’s ability to
     timely elect a survivor annuity for his new spouse. Thus, no waiver is warranted
     on the basis of affirmative misconduct.
¶8        Finally, OPM has a statutory obligation to notify each annuitant annually of
     his or her election rights under 5 U.S.C. § 8339(j) and (k)(2). Fox v. Office of
     Personnel Management, 98 M.S.P.R. 72, ¶ 7 (2004). In appeals concerning the
     question of whether OPM sent such notification, OPM has the burden of proving
     both that it sent the annual notice and the contents of the notice.      Id.   The
     appellant then must present credible testimony or other evidence supporting the
     contention that he or she did not receive the annual notice.       Id.   Here, the
     administrative judge concluded that the appellant was not entitled to waiver based
     on lack of statutory notice because OPM met its burden of proving that it sent the
     appellant the appropriate notices and that he did not dispute receiving them. ID
     at 3-5. On review, the appellant does not challenge this finding. See PFR File,
     Tabs 1, 6. Nonetheless, we have considered the record evidence and agree with
     the administrative judge’s finding. First, we agree that OPM met its burden of
     proof by submitting an affidavit by the administrator of the contract for printing
     and distribution of forms and notices for OPM’s Retirement and Insurance
     Service, which described the system by which annual notices regarding survivor
     elections were sent to annuitants, with copies of the December 1999 and
     December 2000 notices attached. See IAF, Tab 9 at 12-13, 16-17, Tab 15 at 5-6;
                                                                                   6

see also Fox, 98 M.S.P.R. 72, ¶¶ 8-9 (finding that a virtually identical affidavit
satisfied OPM’s burden of proof). Second, we agree that the appellant failed to
rebut this showing. See ID at 5. Although the appellant alleged below that he did
not receive the notices, see, e.g., IAF, Tab 2 at 1, his wife, acting as his
representative, later stated only that the appellant did not “recall” receiving them,
IAF, Tab 13. Moreover, the appellant did not submit any evidence or credible
testimony to support his contention that he did not receive the annual notices.
Accordingly, we conclude that the administrative judge correctly found that the
appellant is not entitled to waiver of the filing deadline for electing a survivor
annuity for his spouse.

                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
                                                                                     7

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.
