       NOTE: This disposition is nonprecedential.


  United States Court of Appeals
      for the Federal Circuit
                ______________________

                FLORENE WIGGINS,
                    Petitioner

                           v.

    OFFICE OF PERSONNEL MANAGEMENT,
                  Respondent
            ______________________

                      2019-1143
                ______________________

   Petition for review of the Merit Systems Protection
Board in No. CH-0831-18-0259-I-1.
                ______________________

              Decided: November 12, 2019
                ______________________

   GREG SMITH, The Law Office of Gregory D. Smith,
Clarksville, TN, for petitioner.

    NATHANAEL YALE, Commercial Litigation Branch, Civil
Division, United States Department of Justice, Washing-
ton, DC, for respondent. Also represented by JOSEPH H.
HUNT, REGINALD THOMAS BLADES, JR., ROBERT EDWARD
KIRSCHMAN, JR.
                 ______________________

    Before DYK, TARANTO, and STOLL, Circuit Judges.
2                                           WIGGINS v. OPM




STOLL, Circuit Judge.
    Florene Wiggins appeals from the decision of the Merit
Systems Protection Board affirming the denial of her claim
for a Federal Employees Retirement System (FERS) survi-
vor annuity under 5 U.S.C. § 8339(k)(2)(A). The Board’s
decision relied in part on Schoemakers v. Office of Person-
nel Management, 180 F.3d 1377 (Fed. Cir. 1999), a decision
by this court holding that § 8339(k)(2)(A)’s two-year dead-
line for election of a survivor’s annuity cannot be waived
due to an annuitant’s mental impairment. Ms. Wiggins
asks this court to overrule Schoemakers. For at least the
reason that we do not have the authority to grant Ms. Wig-
gins’s requested relief, we affirm.
                        BACKGROUND
    Section 8339(k)(2)(A) permits a qualified federal em-
ployee who marries after retirement to reduce his or her
own annuity in order to provide an annuity to a surviving
spouse. To do so, the employee must elect to provide the
survivor’s annuity to his or her spouse in a signed writing
to the Office of Personnel Management within two years of
marriage. § 8339(k)(2)(A).
    The facts of this case are not in dispute. James Seneca
Wiggins retired from the Department of the Army on June
29, 2001. On August 2, 2002, Mr. Wiggins married Ms.
Wiggins and remained married to her until his death.
Mr. Wiggins did not provide a written notice to OPM of his
election to provide a survivor’s annuity to Ms. Wiggins at
any point before his death on May 17, 2011. Mr. Wiggins
received an unreduced annuity until his death. Mr. Wig-
gins did designate Ms. Wiggins and his children as benefi-
ciaries of a lump sum death benefit under FERS, which
they received after Mr. Wiggins’s death.
    Ms. Wiggins submitted her claim for a survivor’s annu-
ity to OPM on October 29, 2012. OPM denied her claim
because Mr. Wiggins had never provided written notice of
WIGGINS v. OPM                                            3



his election to provide a survivor’s annuity. Ms. Wiggins
appealed to the Board, arguing that Mr. Wiggins suffered
from Post-Traumatic Stress Disorder and was mentally in-
capable of submitting a written election. Ms. Wiggins also
argued that OPM had failed to give Mr. Wiggins notice of
the two-year deadline as required by § 8339 and OPM’s
regulations.
    The Board first addressed Ms. Wiggins’s argument
that Mr. Wiggins lacked the mental capacity to submit an
election within the two-year deadline. The Board deter-
mined that Ms. Wiggins’s argument was expressly fore-
closed by our holding in Schoemakers. Appx. 5–6 (citing
Schoemakers, 180 F.3d at 1382). The Board explained that
Schoemakers explicitly rejected the argument that waiver
of the two-year deadline in § 8339(k)(2)(A) could be prem-
ised on an annuitant’s mental condition. Id. The Board
also determined that OPM had met its burden of proving
that it provided adequate notice of the election deadline to
Mr. Wiggins. The Board thus affirmed OPM’s denial of Ms.
Wiggins’s claim for a survivor’s annuity.
                       DISCUSSION
    On appeal, Ms. Wiggins requests that this court modify
or overrule Schoemakers and permit waiver of the two-year
deadline for qualified employees who suffer a mental infir-
mity that impairs timely election. Ms. Wiggins argues that
rigid application of the deadline violates due process and
conflicts with both state law and prior Board decisions con-
sidering principles of equity when interpreting
§ 8339(k)(2)(A). Ms. Wiggins also argues that the Federal
Circuit departed from its holding in Schoemakers when it
created an exception to the two-year deadline for annui-
tants who failed to receive adequate notice.
    We agree with the Board and Ms. Wiggins that Schoe-
makers, a precedential opinion by this court, controls the
issue of waiver. Presented with a similar argument regard-
ing the mental incapacity of the annuitant, we held in
4                                           WIGGINS v. OPM




Schoemakers that we do not “have the 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 (citing Crown v. U.S. R.R. Re-
tirement Bd., 811 F.2d 1017, 1020 (7th Cir. 1987)). As
Ms. Wiggins recognizes, the panel is bound by Schoemak-
ers and cannot overrule or modify its holding.
     Instead, Ms. Wiggins seeks en banc review. But, even
if the court were to sit en banc and overrule Schoemakers,
Ms. Wiggins might not benefit, given that there is at least
one meaningful difference between the facts here and those
in Schoemakers. In contrast to Schoemakers, where the
mentally impaired annuitant submitted a notice of election
almost three years after the two-year deadline, see id. at
1379, Mr. Wiggins never submitted a written notice of elec-
tion to OPM. Ms. Wiggins does not address how overruling
Schoemakers would entitle her to a survivor’s annuity de-
spite the lack of any election. For this additional reason,
we find Ms. Wiggins’s arguments based on her request to
overrule Schoemakers unpersuasive.
                       CONCLUSION
     We have considered Ms. Wiggins’s remaining argu-
ments and find them unpersuasive. We discern no reversi-
ble error in the Board’s decision and, accordingly, we
affirm.
                      AFFIRMED
                          COSTS
    No costs.
