                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     LEE J. STILLWELL, SR.,                          DOCKET NUMBER
                    Appellant,                       AT-0843-15-0122-I-1

                  v.

     OFFICE OF PERSONNEL                             DATE: September 22, 2015
       MANAGEMENT,
                   Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Sara McDonough, Esquire, Washington, D.C., 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) finding him ineligible to elect a survivor annuity for his current spouse
     under the Civil Service Retirement System (CSRS). Generally, we grant petitions


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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     such 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
     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. We MODIFY
     the initial decision, insofar as the administrative judge failed to address the
     appellant’s argument that OPM provided him with misleading information
     regarding his election rights. Except as expressly modified by this Final Order,
     we AFFIRM the initial decision.
¶2         On July 21, 2002, the appellant completed an application for deferred
     retirement under CSRS, electing to receive a reduced annuity with a survivor
     annuity for his then-wife.          Initial Appeal File (IAF), Tab 10 at 28-29.   His
     retirement became effective in August 2002. See id. at 25, 27. His then-wife
     died on May 20, 2007. Id. at 21. He married his current wife on August 15,
     2011. Id. at 22.
¶3         On February 4, 2014, the appellant mailed a request to OPM to elect a
     survivor annuity for his current wife.        Id. at 20.   OPM denied the request on
     June 17, 2014, finding that he failed to timely elect survivor annuity benefits for
     his new wife within 2 years of their marriage, as required by law. Id. at 16. The
     appellant requested reconsideration and, on September 26, 2014, OPM affirmed
     its initial decision. Id. at 6-7.
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¶4         In its reconsideration decision, and again on October 29, 2014, OPM
     informed the appellant that it would adjust his annuity, retroactive to the first
     month following the death of his former wife. Id. at 7, 17. It subsequently issued
     him a refund for the period from June 1, 2007, through October 30, 2014, because
     he had been underpaid during the period when his annuity was erroneously being
     reduced to provide a survivor annuity for his deceased wife. Id. at 17-19.
¶5         The   appellant    filed   an   appeal   with   the   Board    regarding    OPM’s
     reconsideration decision. IAF, Tab 1. He argued that OPM did not adequately
     inform him of the requirements for electing a survivor annuity upon remarriage
     after retirement and that, in any event, his election was timely filed. IAF, Tabs 1,
     24. He requested a hearing, but subsequently withdrew that request. IAF, Tab 1
     at 2, Tab 18.
¶6         The administrative judge issued an initial decision based on the written
     record. IAF, Tab 25, Initial Decision (ID). He affirmed OPM’s reconsideration
     decision, finding that OPM’s annual notice sufficiently apprised the appellant of
     the requirements for electing a survivor annuity for his current wife. ID.
¶7         The appellant has filed a petition for review. Petition for Review (PFR)
     File, Tab 1.    He argues that: (1) his deceased wife remained entitled to the
     survivor annuity until October 2014 and, as such, his request was timely filed less
     than 2 years after her entitlement ended; 2 (2) OPM’s notice of how to make a new
     survivor annuity election was inadequate; and (3) even if the Board finds that his
     election was untimely, the Board should waive the filing deadline. Id. OPM filed


     2
       The administrative judge stated in the initial decision that the appellant did not argue
     that he timely elected the survivor annuity. ID at 2, 5. This is incorrect. In his initial
     appeal, the appellant asserted that he “is still within the statutory period for filing an
     election” and that “the two years after the date a former spouse loses entitlement has
     not yet begun in [his] case.” IAF, Tab 1 at 8. We discern no harm in the administrative
     judge’s misstatement because, as explained herein, we have considered this argument
     and find it to be without merit. See Panter v. Department of the Air Force,
     22 M.S.P.R. 281, 282 (1984) (finding that an adjudicatory error that is not prejudicial to
     a party’s substantive rights provides no basis for reversal of an initial decision).
                                                                                        4

      a pro forma response in opposition, to which the appellant did not reply. PFR
      File, Tab 4.

      The appellant failed to timely elect a survivor annuity for his current wife.
¶8           Upon remarriage, an annuitant who was married at the time of retirement
      and subsequently remarries may elect within 2 years following his remarriage to
      receive a reduced retirement annuity so as to provide for a survivor annuity for
      his current spouse. 5 U.S.C. § 8339(j)(5)(C)(i); see Duzon v. Office of Personnel
      Management, 101 M.S.P.R. 430, ¶ 7 (2006).
¶9           The appellant argues that his deceased wife remained entitled to the
      survivor annuity, regardless of the fact that his election terminated upon her
      death, until on or around October 29, 2014, when OPM notified him of his refund.
      PFR File, Tab 1 at 6-7.      Therefore, he contends, his February 2014 election
      request was timely filed within 2 years of the end of his deceased wife’s
      entitlement. Id. He bases this argument on the fact that in OPM’s June 17, 2014
      initial decision denying his request to elect a survivor annuity for his current
      wife, OPM stated that it “ha[d] not made the adjustment to remove [his deceased
      wife] from his annuity” and instructed him to advise OPM if he “would like to
      make that adjustment.” Id.; see IAF, Tab 10 at 16.
¶10          This argument has no merit. The law is clear that the appellant’s election of
      a survivor annuity terminated upon the death of his former wife and that, to
      provide a survivor annuity for his current wife, he was required to make the
      election within 2 years of his remarriage.         5 U.S.C. § 8339(j)(5)(A)(i); see
      Williams v. Office of Personnel Management, 105 M.S.P.R. 29, ¶ 6 (2007).
      OPM’s apparently erroneous action of continuing the deductions from the
      appellant’s annuity to fund a survivor annuity following the death of the
      appellant’s previous wife, as documented in the June 17, 2014 letter, did not alter
      this     requirement.         See     Calkins     v.     Office     of    Personnel
      Management, 116 M.S.P.R. 130, ¶ 9 (2011) (addressing the fact that the payment
      of a retirement benefit may not be made in direct contravention of CSRS).
                                                                                        5

      Indeed, OPM later recognized and corrected its error, refunding the improperly
      deducted amount to the appellant. We therefore find that the appellant did not
      timely elect a survivor annuity for his current spouse because he failed to do so
      within 2 years of their marriage.

      OPM properly notified the appellant of the specific requirements for electing a
      survivor annuity.
¶11        Under Public Law No. 95-317 (codified at 5 U.S.C. § 8339 note), OPM is
      required by statute to notify annuitants annually of their survivor annuity election
      rights under 5 U.S.C. § 8339(j) and (k)(2). Cartsounis v. Office of Personnel
      Management, 91 M.S.P.R. 502, ¶ 5 (2002).         This statutory obligation is not
      satisfied simply by providing accurate annual notices.         Nixon v. Office of
      Personnel Management, 452 F.3d 1361, 1365-67 (Fed. Cir. 2006). Rather, OPM
      is statutorily obligated to provide straight forward, full and accurate information
      regarding election rights in all of its communications to the employee or former
      employee, so that statutorily-required notice is not diluted or contradicted. See
      id.; Wood v. Office of Personnel Management, 241 F.3d 1364, 1367 (Fed. Cir.
      2001).
¶12        If OPM fails to provide such notice, it cannot deny an annuity even if
      formal election has not been made during the applicable time period, so long as
      there is some evidence that the employee wished to elect a survivor annuity. See
      Wood, 241 F.3d at 1366. For instance, in Wood, the annuitant sent a letter to
      OPM, prior to his divorce, requesting information regarding how to continue his
      spouse’s survivor annuity once the divorce was finalized.      Id. at 1365.   OPM
      informed him that he could voluntarily elect to provide survivor coverage for an
      ex-spouse and that he should notify OPM if his marriage were ever terminated,
      but did not provide any further information. Id. at 1365-66. Wood did not notify
      OPM of his divorce but, after he divorced and within the 2-year election period,
      he received a notice from OPM informing him of the requirement to elect a
      survivor annuity within 2 years of his divorce and that he would receive a reduced
                                                                                          6

      annuity if he so elected. Id. at 1366. Wood never made an election after his
      divorce, but continued to receive a reduced annuity until his death. Id.
¶13        The    U.S. Court    of   Appeals   for   the   Federal   Circuit   found   that,
      notwithstanding Wood’s failure to make an election following his divorce, his
      ex-wife was entitled to a survivor annuity because OPM did not provide Wood
      with adequate notice of his election rights and Wood had manifested an intention
      to provide her with one. Id. at 1367-68. In particular, the court noted that OPM’s
      failure to mention, in response to Wood’s inquiry letter, that he was required to
      make an election after his divorce became final could have caused him to believe
      that his letter was sufficient to constitute an election, particularly given that he
      continued to receive a reduced annuity. Id. at 1367. Although the annual notice
      Wood received following his divorce, standing alone, was adequate, it was
      insufficient to put him on notice of the election requirements because it was
      “hardly a model of clarity, and did little to correct the earlier confusion” created
      by OPM’s incomplete response to his inquiry letter. Id.
¶14        Here, the appellant asserted below, and reiterates on review, that he
      contacted OPM in or around April 2011 to inquire about electing a survivor
      annuity for his then-fiancée upon their marriage and an OPM representative
      informed him that she would not become eligible to be his survivor annuity
      beneficiary until 9 months after their marriage, see 5 U.S.C. § 8339(j)(5)(C)(ii),
      but made no mention of the requirement to file an election within 2 years of their
      marriage, IAF, Tab 2 at 4-6, Tab 24 at 3; PFR File, Tab 1 at 4-5.                The
      administrative judge failed to address this argument below and we thus modify
      the initial decision in this regard. For the reasons set forth below, we discern no
      harm because to the extent that the appellant alleges that he did not receive
      adequate notice because the OPM representative misled him into believing that
      the sole restriction governing his election of a survivor annuity for his new wife
      was the 9-month waiting period, we disagree. See Panter, 22 M.S.P.R. at 282.
                                                                                           7

¶15         As an initial matter, we note that the appellant’s assertions concerning his
      April 2011 communication with OPM are made through his attorney. He has not
      provided any sworn statement or affidavit to support this claim. Thus, there is no
      evidence that this communication occurred as alleged. 3            See Hendricks v.
      Department of the Navy, 69 M.S.P.R. 163, 168 (1995) (finding that the statements
      of a party’s representative in a pleading do not constitute evidence). Even if it
      did, we find that OPM’s annual notices were sufficient to correct any confusion
      the appellant may have had.
¶16         In determining whether the content of OPM’s annual notices to an annuitant
      adequately informed him of his election rights, we look to the notice sent
      immediately after the event that would result in his election or reelection
      decision. Duzon, 101 M.S.P.R. 430, ¶ 11. There is no dispute that the appellant
      received annual notices from OPM in or around December 2011 and December
      2012, after he remarried and within the 2-year election period. IAF, Tab 1 at 7,
      Tab 24 at 4; see IAF, Tab 10 at 11, 13. Yet, he disputes that these notices were
      adequate to inform him of the requirements for electing a survivor annuity for his
      current spouse. PFR File, Tab 1. We disagree. OPM’s notices informed him
      that: “Survivor elections terminate upon the death of the person elected . . . a
      survivor annuity election made at retirement . . . terminate[s] upon death . . . and
      the annuitant must make a new election (reelection) within 2 years after the
      terminating event to provide a survivor annuity for a spouse acquired after
      retirement. Continuing a survivor reduction, by itself, is not effective to reelect a


      3
        The record contains what the appellant’s attorney asserts are contemporaneous notes
      the appellant took during the April 2011 conversation; and a calendar entry the
      appellant made following his April 2011 communication with OPM, reflecting that he
      recorded the date his new wife would become eligible for a survivor annuity. IAF,
      Tab 2 at 4-5, 8, 11. However, the appellant did not provide a sworn statement or
      affidavit explaining what these documents are and, in any event, the handwritten notes
      are illegible. The appellant also submitted telephone records indicating that he called
      OPM in April 2011, but this does nothing to prove the content of that telephone
      conversation. Id. at 15-17.
                                                                                           8

      survivor annuity for a spouse married after retirement.” IAF, Tab 10 at 11, 13.
      The notices further stated that a “survivor election for a spouse you marry after
      retirement” “must” be submitted “in writing, before the expiration of the 2-year
      time limit.” Id.
¶17         We find that these notices are abundantly clear and the appellant’s
      arguments to the contrary, including his claim that he had “a reasonable and good
      faith belief that he had properly elected to provide survivor annuity benefits for
      his current spouse,” PFR File, Tab 1 at 8, are unpersuasive. Further, unlike the
      situation in Wood, we cannot find that these notices lacked clarity and thus were
      insufficient to correct any confusion that may have resulted from the appellant’s
      alleged April 2011 communication with OPM. If OPM somehow misled him into
      believing that there was no time limit for making an election, other than having to
      wait for 9 months after his marriage, this was corrected when he was twice
      notified that an election must be made within 2 years of the date of his marriage.
¶18         The appellant also argues that the administrative judge erred in citing to
      Downing v. Office of Personnel Management, 619 F.3d 1374 (Fed. Cir. 2010), in
      support of his finding that the appellant received adequate notice.       PFR File,
      Tab 1 at 7-8. Specifically, he notes that Downing concerned language relating to
      making an election for a former spouse, whereas the issue in the instant case is
      the language relating to making an election for a current spouse upon
      post-retirement remarriage. Id. We discern no error. The administrative judge
      discussed in detail the factors he considered in finding the notices at issue in this
      appeal adequate.    ID at 6-7.    We agree with his analysis and we also find
      additional support for his analysis in the notices, as discussed above.

      We deny the appellant’s request for a waiver of the election deadline.
¶19         The appellant argues that, even if his election request were untimely filed,
      the “equitable principles of justice and good conscience” demand that the Board
      waive the filing deadline because:      (1) the delay was minimal; (2) he had a
      lengthy Federal career; (3) he had a “reasonable and good faith belief that he had
                                                                                          9

      properly elected to provide survivor annuity benefits for his current spouse;” and
      (4) denying his request would have a “devastating and permanent impact.” PFR
      File, Tab 1 at 8.
¶20         It is well settled that equitable considerations do not provide a basis for
      awarding benefits not otherwise authorized by law. Hunt v. Office of Personnel
      Management,         89 M.S.P.R. 449,   ¶9   (2001)   (citing   Office   of   Personnel
      Management v. Richmond, 496 U.S. 414, 416, 434 (1990)). We recognize that, in
      addition to OPM’s failure to provide required statutory notice, a filing deadline
      prescribed by statute or regulation may be waived if: (1) the statute or regulation
      specifically provides for a waiver under the circumstances; or (2) an agency’s
      affirmative misconduct precludes enforcement of the deadline under the doctrine
      of equitable estoppel, at least where such estoppel would not result in the
      expenditure of appropriated funds in contravention of a statute.         See Blaha v.
      Office of Personnel Management, 106 M.S.P.R. 265, ¶ 8 (2007).                However,
      neither of these exceptions is applicable here.          As a result, we deny the
      appellant’s request.       Accordingly, we affirm the initial decision except as
      modified herein.

                          NOTICE TO THE APPELLANT REGARDING
                             YOUR FURTHER REVIEW RIGHTS
            The initial decision, as supplemented by this Final Order, constitutes the
      Board’s final decision in this matter. 5 C.F.R. § 1201.113. You have the right to
      request the United States Court of Appeals for the Federal Circuit to review this
      final decision.      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
                                                                                    10

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
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.
