                 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


                                       05-3288

                              WILLIAM A. DONALDSON,

                                               Petitioner,

                                          v.

                     OFFICE OF PERSONNEL MANAGEMENT,

                                               Respondent.

                          ___________________________

                          DECIDED: March 8, 2006
                          ___________________________


Before NEWMAN, BRYSON, and PROST, Circuit Judges.

PER CURIAM.

                                      DECISION

      William A. Donaldson appeals from a decision of the Merit Systems Protection

Board, Docket No. SF-0831-04-0546-I-1, affirming a decision of the Office of Personnel

Management (“OPM”) that denied Mr. Donaldson’s post-retirement election of a survivor

annuity for his spouse. We affirm.

                                     BACKGROUND

      Mr. Donaldson retired under the Civil Service Retirement System on June 2,

2001. At the time of his retirement from federal service he was unmarried, and he did
not elect a survivor annuity benefit. On December 13, 2001, he married. OPM asserts

that it sent Mr. Donaldson two notices—in December 2001 and December 2002—

advising him that under 5 U.S.C. § 8339(k)(2)(A) he had two years from the date of any

post-retirement marriage to file an application for a survivor annuity.1 Although Mr.

Donaldson states that he does not specifically recall those notices, he acknowledges

receiving other correspondence from OPM during the same time period, and

acknowledges that he may have received the 2001 and 2002 notices.

       Mr. Donaldson contends that he wrote to OPM “sometime in between July 2003

and September 2003.” However, neither Mr. Donaldson nor OPM has any record of

any letter from that time period. Moreover, his statement regarding the letter suggests

that he did not request a survivor annuity at that time, but merely requested information

about the cost of a survivor annuity.

       The first correspondence of record received by OPM from Mr. Donaldson

regarding a survivor annuity is a letter dated February 21, 2004—more than two months

after Mr. Donaldson’s deadline for filing an application for a survivor annuity. In that

letter, Mr. Donaldson mentioned that he married in 2001, and he asked, “Is it still

possible to have my new wife be the recipient of my annuity? If so, how much will be

deducted from my monthly salary and what paperwork do I need to do to make her the

recipient?” The agency denied Mr. Donaldson’s February 2004 request for a survivor




       1
             The administrative judge’s opinion states that OPM sent the notices in
December of 2001 and 2003, suggesting that no notice was sent in 2002. The record
indicates, however, that the agency sent annual notices, including one in December
2002, as required by 5 U.S.C. § 8339 note. The omission of “2002” in the opinion
appears to have been an error, and Mr. Donaldson does not contend that he did not
receive the annual notice for 2002.


05-3288                                    2
annuity as untimely under 5 U.S.C. § 8339(k)(2)(A). The agency denied his request for

reconsideration on the same ground, and the Merit Systems Protection Board affirmed

that denial. Mr. Donaldson appeals.

                                      DISCUSSION

      Mr. Donaldson first contends that the letter he claims to have sent to OPM in

2003 was a timely request for a survivor annuity. Based on the evidence of record, the

Board concluded that there was no showing that Mr. Donaldson sent, or that OPM

received, any letter regarding a survivor annuity in 2003.        Moreover, the Board

concluded that Mr. Donaldson’s statement regarding the alleged 2003 letter suggested

that the letter did not request a survivor annuity but merely requested information about

a survivor annuity. We sustain the Board’s conclusion that Mr. Donaldson failed to

make a timely request for a survivor annuity.

      Mr. Donaldson next argues that the untimeliness of his request was a “minor

error,” and that it should therefore be excused. Congress, however, established a firm

deadline in 5 U.S.C. § 8339(k)(2)(A) and provided no exceptions to that deadline. In

Schoemakers v. Office of Personnel Management, 180 F.3d 1377 (Fed. Cir. 1999), we

expressly rejected the argument that the filing deadline under section 8339(k)(2)(A)

could be waived. As we noted in that case, and reiterate here, we lack “authority to

waive requirements (including filing deadlines) that Congress has imposed as a

condition to the payment of federal money.” 180 F.3d at 1382.

      Finally, although Mr. Donaldson states that he does not specifically recall

receiving annual notices of his election rights, he does not appear to challenge the

agency’s claim that it sent him the annual notices, as required by 5 U.S.C. § 8339 note.




05-3288                                     3
Moreover, OPM provided sufficient evidence to show that it sent annual notices to Mr.

Donaldson, and in the absence of any evidence from Mr. Donaldson that he did not

receive those notices, OPM’s evidence was sufficient to support the Board’s finding that

the required notices were provided to him. Indeed, the affidavit offered by OPM in this

case appears identical to the affidavit we found to constitute sufficient evidence of

annual notice in the Schoemakers case, 180 F.3d at 1381. The Board’s decision is

therefore affirmed.




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