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

05-3144 GLORIA C. PARSON, Petitioner,

v.
OFFICE OF PERSONNEL MANAGEMENT, Respondent.

__________________________ DECIDED: October 5, 2005

__________________________ Before MAYER, SCHALL, and LINN, Circuit Judges

. PER CURIAM.

DECISION Gloria C. Parson petitions for review of the final decision of the Merit Systems Protection Board (“Board”) that affirmed the reconsideration decisi on of the Office of Personnel Management (“OPM”) denying her appl ication for survivor annuity benefits under the Civil Service Retirement System (“CSRS”), 5 U.S.C. § 8331 et seq. Parson v. Office of Pers. Mgmt. , No. DC-0831-03-0680-I- 1 (Feb. 2, 2005) (“ Final Decision ”). We affirm

.DISCUSSI ON
I

. Ms. Parson is the widow of George Parson, a deceased retired federal employee. Mr. Parson retired from federal service effective Apr i l 3, 1993. At the time of his retirement, Mr. Parson was unmarried and di d not elect a survivor annuity benefit. He and Ms . Parson were married on J u ly 10, 1993. Mr. Parson died on November 3, 2000. At no time after his marriage and pr ior to his death did Mr. Parson elect a reduction in his retirement annuity in order to provide survivor annuity benef i ts for Ms. Parson. On November 28, 2000, Ms. Parson s ubmitted an application to OPM seeking survivor annuity benefits in t he form of a monthly surviv or annuity. By letter dated April 14, 2003, OPM denied the applicat ion on the ground t hat there was no in d i cation in its records that Mr. Parson had elected to prov ide Ms. Parson with a survivor annuity. Ms. Parson requested reconsiderat ion of the decision. On June 17, 2003, OPM issued a reconsider ation dec is ion affirming its initial decision denying Ms. Pa rson’s application. OPM stated again that there was no indication in its records that Mr. Parson had elected to provide Ms. Parson with a survivor annuity

. I I

. Ms. Parson timely appealed O P M’s recons ideration decis ion to the Bo ard. Following a hearing, t he administrative judge (“AJ”) to whom the appeal was assigned issued an initial decis ion su staining OPM’s decision. Parson v. Office of Pers. Mgm t

. , No. DC-0831-03-0680-I-1 (Oct. 31, 2003) (“ Initial De cision ”). After noting that Ms. Parson had the bur den of es tab lishing her entitle ment to survivor benefits by a

05-3144 2preponderance of the evidenc e, se e 5 C.F.R. § 1201.56(a)(2), the AJ turned t o 5 U.S.C. § 8339(k)(2)(A). That statute provides, in pertinent part, that an indiv i dual who is not married at the time of retire ment but who later marries ma y elec t in a signed writing received within two years after the marriage to have his current annuity reduc ed in order to provide his spouse with a su r v ivor annuity. The AJ noted that it was undisputed that Mr. Parson did not make such an electi on within two years of his marriage to Ms. Parson on July 10, 1993. Initial Decis i on at 3-4. The AJ next addressed the statutory requirement that OPM notify eac h annuitant annually o f the right to elect to provide his or her spouse with a survivor annuity, see Mroz v. Office of Pers. Mgmt. , 71 M.S.P.R. 299, 301 (1996). Initia l Decis i on at 4. Failure on the part of OPM to furnish such notice
may excus e the failure to make an election. Vallee v. Office of Pers. Mgm t

. , 58 F.3d 613, 616 (Fed. Cir. 1995). In that regard, the AJ not ed that OPM had submitted evidenc e in the form of affidavits that estab lished a r ebuttable presumption that, during the relevant period of time , OPM had provided Mr. Parson wit h the required notification and that Ms. Parson had failed to rebut the presumption. Initial Decisio n at 4. See Brush v. Office of Pers. Mg mt. , 982 F.2d 1554, 1560-61 (Fed. Cir. 1992). The AJ rejected Ms. Parson’s argument that she was non etheless entitled to a s u rvivor annuity because M r . Parson had wanted her to hav e one and, with that in mind, had filled out two forms—SF-2808, Designation of Benefici ary, and Des i gnatio n of Beneficiary, Federal Employees’ Group Life Insuranc e Program—that Ms. Parson believ ed Mr. Parson was told by his employing agenc y would effectuate that desire. Id. The AJ pointed out that the record c ontained no affidavits or test imony, other than M s . Parson’s statement as to her belief, t hat Mr. Parson was told by his employing agency tha t

05-3144 3signing the two forms would cons titute an electi on to provide Ms. Parson with a survivor annuity. Id. at 4-5. The AJ also pointed out that the forms ci ted by Ms. Parson did not relate to electing a survivor annuity. For the foregoing reasons, the AJ he ld that Ms. Parson had failed to establish her entitlement to a survivor annuity. The AJ therefore affirmed OPM’s reconsideration decision. Id. at 5-6. The Initia l Decis i on became the final decis i on of the Board on Febr uary 5, 2005, after the Board denied Ms. Parson’s petition for re view for failure to meet the criteria for review set forth at 5 C.F.R. § 1201.115(d). Fina l Dec i sion . This appeal followed. We have jurisdiction pursuant to 28 U

. S.C. § 1295(a)(9).
I I I

. Our scope of review in an appeal from a decision of the Board is limited. Specifica lly , we must affirm the Board’s d e ci sion unless we find it to be arbitrary, capricious, an abuse of discret ion, or otherwise not in a ccordanc e with law; obtained without procedures required by law, rule, or regulation having been followed; or unsupported by substantial evid ence. 5 U.S.C. § 7703(c); Kewley v. Dep’t of Health & Human Servs. , 153 F.3d 1357,1361 (Fed. Cir. 1998). On appeal, Ms. Parson does not dispute that Mr. Parson failed to elect a sur v ivor annuity for her within two years of their marr iage on July 10, 1993. Rather, she raise s several other arguments. First, she appear s to challenge the statement on page 2 of the AJ’s Summary of Prehearing Conference t hat “appellant stipul ated that her late spouse had received general OPM notices in forming him of the provisions of law governing t he election of surviv or annuity benefits. . . .” Ho wev e r, there is no indication, other than Ms. Parson’s asserti on, that the Summary of Pr ehearing Conference fails to

05-3144 4accurately state what took pl ace at the conference. In any event, before the Board, Ms. Parson failed to come forward with evidence to rebut the presumption created by OPM’s affidavits that, during the relev ant period of time, OPM informed Mr. Parson of his election rights. As she did before t he Board, Ms. Pa rson also ar gues that Mr. Parson wa s erroneously told by h i s employin g agency that, by fillin g out the two forms noted above , he would accomplish the objective of electing a survivor annuity for his wife. We reject this argument. In the first place, as noted by the AJ, there is no evidenc e in the record that the agency prov ided Mr. Parson with this kind of information. In addition, Ms. Parson’s argument is undermined, we think, by the fact that the noted f o rms do not relate to the election of a survivor annuity . In any event, assuming Mr. Parson did receive inc o rrect verbal information from personnel at his employing agency, that misinformation wou l d not estop OPM from enfor cing the two-yea r stat utory limit for filing an election for a survivor annuity. Office of Pers. M g mt v. Richmond , 496 U.S. 414 (1990); Koyen v. Offic e of Pers. Mgmt. , 973 F.2d 919 (Fed. Cir. 1992). Lastly, Ms. Parson argues that Mr. Parson cared deeply for her and that he intended t o provide her with a survivor annuity. Like OPM and the AJ we are sympathetic to Ms. Parson in v i ew of the ci rcumstances in which she finds herself. Howev e r, we are not authorized to ignore the two-year statut ory requirement for election of a survivor annuity. For the foregoing reasons, the fi nal decis ion of the Board is affirmed. Each party shall bear its own costs.

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