Williams v. Opm , 646 F. App'x 976 ( 2016 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
TERRY A. WILLIAMS,
Petitioner
v.
OFFICE OF PERSONNEL MANAGEMENT,
Respondent
______________________
2016-1196
______________________
Petition for review of the Merit Systems Protection
Board in No. DC-0831-14-1065-I-1.
______________________
Decided: May 5, 2016
______________________
TERRY A. WILLIAMS, Norfolk, VA, pro se.
ADAM E. LYONS, Commercial Litigation Branch, Civil
Division, United States Department of Justice, Washing-
ton, DC, for respondent. Also represented by PATRICIA M.
MCCARTHY, ROBERT E. KIRSCHMAN, JR., BENJAMIN C.
MIZER.
______________________
Before O’MALLEY, CLEVENGER, and BRYSON, Circuit
Judges.
2 WILLIAMS v. OPM
PER CURIAM.
Appellant Terry A. Williams seeks review of the Sep-
tember 15, 2015 decision of the Merit Systems Protection
Board (“Board”) denying her request for survivorship
benefits. Supplemental Appendix (“SA”) 1-7. For the
reasons below, we affirm the Board’s decision.
BACKGROUND
Ms. Williams seeks entitlement to survivorship bene-
fits based on an election of benefits made by Ms. Wil-
liams’s former husband, Robert L. Williams, before their
divorce. The parties do not dispute that Mr. Williams did
not take any action to renew the pre-divorce election of
survivorship benefits after the divorce. The principal
issue on appeal is whether the Office of Personnel Man-
agement (“OPM”) properly informed Mr. Williams after
the divorce that he was required to renew the pre-divorce
election of survivorship benefits in order for it to continue
in force.
Mr. and Ms. Williams married on November 12, 1975.
SA 2. During their marriage, Mr. Williams elected to
have Ms. Williams receive his annuity as a survivorship
benefit. Id. Mr. Williams retired from Federal employ-
ment on May 30, 1995, and Mr. and Ms. Williams subse-
quently divorced. Id. The divorce decree did not include
any reference to survivorship benefits. SA 47-48.
After her divorce, Ms. Williams applied for an annuity
based on the pre-divorce election. SA 2. On September
23, 2005, OPM denied Ms. Williams’s application (the
“2005 decision”). SA 42. Ms. Williams moved for recon-
sideration of the 2005 decision, and OPM affirmed in a
decision dated February 23, 2006. SA 39.
Mr. Williams died on October 22, 2012. Ms. Williams
again applied for a lump sum survivor benefit based on
Mr. Williams’s pre-divorce election. SA 2. On September
9, 2013, OPM denied Ms. Williams’s application.
WILLIAMS v. OPM 3
The ensuing procedural history involved two appeals.
In the first appeal, docketed as matter DC-0831-14-01017-
1-1 (the “first appeal”), Ms. Williams appealed from
OPM’s September 9, 2013 Order, arguing that OPM had
not provided proper notice to Mr. Williams that he needed
to make a post-divorce election in order for his pre-divorce
election of survivorship benefits to be effective. SA 29. In
an order dated October 31, 2014, the administrative judge
instructed Ms. Williams to file evidence to support her
claim that OPM had failed to provide adequate notice to
Mr. Williams. Id.
During that first appeal, Ms. Williams explained that
she had not received the February 23, 2006 reconsidera-
tion decision affirming the 2005 decision. SA 34. Accord-
ingly, on March 4, 2014, OPM entered a new
reconsideration decision, in which it affirmed the 2005
decision. SA 3. Ms. Williams then appealed from that
decision, in a matter docketed as DC-0831-14-1065-1-1
(second appeal). SA 33. Ms. Williams dismissed the first
appeal and chose, instead, to pursue an appeal from the
March 4, 2014 Order. SA 35-36.
On December 8, 2014, the administrative judge held a
status conference in the second appeal. SA 26. During
the status conference, Ms. Williams repeatedly stated
that the only issue she was raising was whether OPM had
properly notified Mr. Williams that he was required to
make a new survivorship election after the divorce in
order to continue his pre-divorce survivorship election.
SA 26-27. At the status conference, Ms. Williams also
withdrew her request for a hearing, and elected to proceed
on the papers. Id.
On April 23, 2015, the administrative judge entered a
decision affirming the OPM’s denial of Ms. Williams’s
request for a survivorship benefit, finding that OPM had
provided notice to Mr. Williams that a post-divorce elec-
tion was necessary. SA 4. Ms. Williams sought review of
4 WILLIAMS v. OPM
the administrative judge’s decision, and the Board af-
firmed in its September 15, 2015 decision.
Ms. Williams now appeals the Board’s September 15,
2015 judgment.
DISCUSSION
Our review of Board decisions is limited by statute.
We will set aside a Board decision if it is: “(1) arbitrary,
capricious, an abuse of discretion, or otherwise not in
accordance with law; (2) obtained without procedures
required by law, rule, or regulation having been followed;
or (3) unsupported by substantial evidence.” 5 U.S.C.
§ 7703(c). Under the substantial evidence standard, “we
will reverse the MSPB’s decision if it is not supported by
‘such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.’” Haebe v.
Dep’t of Justice, 288 F.3d 1288, 1298 (Fed. Cir. 2002). “On
appeal, [the appellant] bears the burden of establishing
error in the Board’s decision.” Link v. Dep’t of the Treas-
ury, 51 F.3d 1577, 1581 (Fed. Cir. 1995).
As previously noted, during the December 8, 2014 sta-
tus conference before the administrative judge, Ms. Wil-
liams “confirmed and acknowledged that she is not
challenging OPM’s decision to deny her request for an
annuity on any other basis” than that OPM failed to
properly notify Mr. Williams of the need to renew his pre-
divorce election of survivorship benefits. SA 26-27 (em-
phasis in original). In particular, Ms. Williams “repeated-
ly confirmed during the prehearing conference she [wa]s
not raising . . . any other related claims in the context of
this appeal.” SA 27 n.1. Ms. Williams did not take excep-
tion to the administrative judge’s summary of the status
conference, despite the administrative judge’s express
invitation to raise any concerns she had. SA 28. Issues
not raised to the Board are not before us on appeal.
Frank v. Dep’t of Transp., 35 F.3d 1554, 1559 (Fed. Cir.
1994). Therefore, the only issue before us is whether the
WILLIAMS v. OPM 5
OPM provided proper notice to Mr. Williams regarding
the need to renew his pre-divorce survivorship election.
Ms. Williams argues that OPM’s notice was deficient
because OPM never provided evidence that it mailed a
notice (1) specifically naming Mr. Williams, and
(2) specifically bearing Mr. Williams’s address. Appellant
Br. at 1-2. The government responds that it has provided
ample evidence in the form of an affidavit from the re-
sponsible OPM official averring that notices were sent in
the ordinary course of business to each annuitant on the
master annuity roll each year from 1989 to 2008 and that
those notices informed annuitants of the need to file post-
divorce annuity elections within two years of the divorce
decree. Appellee Br. at 7 (citing SA 17-18 (Affidavit of
Cyrus S. Benson)).
We have held that OPM may provide affidavit evi-
dence to demonstrate that it provided an annuity notice,
and that the affidavit need not refer by name to the
particular annuitant involved. See Schoemakers v. Office
of Pers. Mgmt., 180 F.3d 1377, 1381 (Fed. Cir. 1999)
(finding that an affidavit constituted adequate proof that
OPM mailed notices to an annuitant even where the
affidavit did not refer “by name to the particular annui-
tant involved.”). Here, as in Schoemakers, we agree that
the government’s affidavit is sufficient evidence of the
mailing of the requisite notice to Mr. Williams. As noted
in the September 15, 2015 Board decision, there is no
dispute that Mr. Williams was receiving his annuity
payments, confirming that his name and address were
already on the annuity roll. Id. The Board accordingly
found it more likely than not that OPM had provided the
notice regarding survivorship elections to Mr. Williams.
We find that substantial evidence supports the Board’s
conclusion regarding the provision of notice to Mr. Wil-
liams.
6 WILLIAMS v. OPM
Ms. Williams further argues that the content of the
OPM notices did not sufficiently inform Mr. Williams of
the need to renew pre-divorce survivor elections after a
divorce in order for the survivor elections to be effective.
Appellant Br. at 1-2. The government responds that the
notices referenced in the OPM official’s affidavit informed
each annuitant about the need to renew pre-divorce
survivor elections consistent with OPM’s statutory obliga-
tion to do so. Appellee Br. at 2-3.
The 2004 and 2005 OPM notices instructed Mr. Wil-
liams as follows:
3. Survivor Annuity Benefits for a Former
Spouse
Eligibility and Time Limits – With some excep-
tions, retirees are eligible to elect a reduced annu-
ity to provide a survivor annuity for a former
spouse if they send a signed request to OPM 1)
within 2 years after the date the marriage ended
by divorce or annulment . . . . Please note that a
NEW SURVIVOR ANNUITY ELECTION IS
REQUIRED to provide a former spouse annuity
WITHIN TWO YEARS AFTER THE DIVORCE,
even if you had previously elected to provide a
survivor annuity for that spouse at the time of re-
tirement as a current spouse. Continuing a survi-
vor reduction, by itself, is not a former spouse
survivor election. . . .
How to Make an Election – Call or write to OPM
at the address on this notice within the two-year
time limit, state the election you want to make,
and sign your request. . . .
5. Termination of Survivor Elections
Survivor elections terminate upon the death of the
person elected, divorce of the annuitant from the
selected spouse . . . .
WILLIAMS v. OPM 7
SA21-22 (2004 notification) (emphasis and capitalization
in original); see also SA23-24 (2005 notification) (same).
An election of survivorship benefits for a former
spouse “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 to the employee or Member is dis-
solved.” 5 U.S.C. § 8339(j)(3). We have held that “an
annual notice is deficient when it fails to inform an annui-
tant that, even if he had previously elected a spousal
annuity when married, he must make a new election after
his divorce.” Simpson v. Office of Personnel Management,
347 F.3d 1361, 1365 (Fed. Cir. 2003).” Here, in contrast
to the deficient annuity notice in Simpson, the 2004 and
2005 annuity notices expressly instructed Mr. Williams of
the need to renew his pre-divorce survivorship election in
order for it to be effective after the divorce. See SA 21-24.
Ms. Williams’s case also is not akin to the other two
cases on which she relies, Hairston v. Office of Personnel
Management, 318 F.3d 1127, 1129 (Fed. Cir. 2003), and
Warren v. Office of Personnel Management, 407 F.3d 1309,
1316 (Fed. Cir. 2005). In Hairston, we held that an
annuity notice was defective because it contradicted
OPM’s statement that it would award annuity benefits
pursuant to the parties’ final divorce decree in that case.
318 F.3d at 1131. “Shortly after the divorce became final,
Mr. Hairston received a notice from OPM with respect to
OPM’s intention to honor the divorce decree and divide
his pension equally with Ms. Hairston.” Id. Thus, we
found that OPM erred in failing to inform Mr. Hairston
“of the need to affirmatively elect to provide Ms. Hairston
with a former spouse survivor annuity.” Id.
Warren is also inapposite. In Warren, OPM never
disputed “that OPM failed to provide Mr. Pike [the former
employee] with proper notice of his right, following his
divorce, to elect a survivor annuity for Ms. Warren. 407
F.3d at 1316. That is not the case here. Having consid-
8 WILLIAMS v. OPM
ered Ms. Williams’s arguments and our controlling prece-
dent, we find no error in the Board’s conclusion that
OPM’s annual notices to Mr. Williams were not defective.
CONCLUSION
For the above reasons, we find no reversible error in
the judgment of the Board denying Ms. Williams’s appli-
cation for survivorship benefits. Accordingly, we affirm
the judgment of the Board.
AFFIRMED