NOTE: This disposition is nonprecedential.

United States Court of Appeals 

for the Federal Circuit ______________________ 

NATALIYA RAKOWSKY,

Petitioner

v.

OFFICE OF PERSONNEL MANAGEMENT,

Respondent

______________________ 

2017-1742

______________________ 

Petition for review of the Merit Systems Protection 

Board in No. DE-0831-14-0388-I-1.

______________________ 

Decided: August 11, 2017

______________________ 

 NATALIYA RAKOWSKY, Marana, AZ, pro se.

 KRISTIN MCGRORY, Commercial Litigation Branch, 

Civil Division, United States Department of Justice, 

Washington, DC, for respondent. Also represented by 

CHAD A. READLER, ROBERT E. KIRSCHMAN, JR., BRIAN A.

MIZOGUCHI. 

______________________ 

Before PROST, Chief Judge, CLEVENGER and STOLL,

Circuit Judges.
2 RAKOWSKY v. OPM

PER CURIAM. 

This is an appeal from a decision of the Merit Systems 

Protection Board (“Board”) affirming a decision of the 

Office of Personnel Management (“OPM”) that the Appellant Nataliya Rakowsky was not entitled to a survivor’s 

annuity. We affirm.

I 

On December 29, 1986, Ihor Rakowsky retired from 

the federal service and from the position of Supervisory 

Special Agent, Drug Enforcement Administration, Department of Justice. Upon retirement, he elected a maximum survivor annuity (55%) to be payable to his thenwife Sophie Kandiuk upon his death. To effectuate his 

annuity election, Mr. Rakowsky executed the “Alternative 

Annuity Election” form, which provided that he elected “to 

receive the reduced alternative annuity.” J.A. 24. Following his submission of the form to OPM, Mr. Rakowsky’s 

monthly annuity payments were reduced to account for 

the survivor benefit election. 

Ten years after his retirement, Mr. Rakowsky advised 

OPM that his wife had died, and, as a result, he requested 

that OPM “kindly make the necessary changes in [his]

records and advise.” J.A. 25. In response, OPM sent Mr.

Rakowsky a letter advising him that his annuity was 

adjusted to full life rate due to the change in his marital 

status. 

Mr. Rakowsky married the Appellant in 1997. About 

a year later, Mr. Rakowsky executed a Standard Form 

(SF) 2808, “Designation of Beneficiary,” designating the 

Appellant as the beneficiary to “receive any lump-sum 

benefit which may become payable under the Civil Service 

Retirement law after my death.” J.A. 56. This form also 

states, “I understand that this designation of beneficiary 

will not affect the rights of any survivors who may qualify 

for annuity benefits after my death.” Id. Mr. Rakowsky
RAKOWSKY v. OPM 3

also executed a SF-2823 “Designation of Beneficiary” form 

for the Federal Employees’ Group Life Insurance Program, designating the appellant as his beneficiary. Mr. 

Rakowsky continued to receive annuity payments at the 

full life rate. 

In December 1997 and December 1998, OPM sent notices to Mr. Rakowsky informing him that, if he married 

subsequent to his retirement, he had two years from the 

date of his marriage to elect a survivor annuity for his 

new spouse. 

In 2010, OPM informed Mr. Rakowsky that a valid 

marriage certificate was missing from his personnel file 

and requested he provide a copy to be included in the file. 

Following this notification, Mr. Rakowsky made the 

required submission and requested that OPM send him 

three copies of his file. Mr. Rakowsky, however, did not 

reference a survivor benefit annuity, and he did not state 

that he desired a reduction in his monthly annuity rate.

Mr. Rakowsky died in 2013. Following his death, Ms. 

Rakowsky filed a claim for a survivor annuity benefit. 

OPM denied the request because Mr. Rakowsky had not 

elected a survivor annuity benefit within the statutorily 

prescribed two-year period after his marriage. 

Ms. Rakowsky requested reconsideration of the decision 

and OPM again denied her request, finding that 

Mr. Rakowsky failed to make a timely election to provide 

her an annuity. 

Ms. Rakowsky filed an initial appeal with the Board 

challenging OPM’s denial of her application for a survivor 

annuity. Following a telephonic conference, the administrative judge affirmed OPM’s decision. The full Board 

denied her petition for review, thus rendering the initial 

decision final. 5 C.F.R. § 1201.113(b). Ms. Rakowsky 

timely appealed to this court. We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(9). 
4 RAKOWSKY v. OPM

II

Our review of a decision of the Board is strictly limited by statute. 5 U.S.C. § 7703(c). We must affirm a 

Board’s decision unless 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.” Id. “Substantial evidence” is 

defined as “such relevant evidence as a reasonable mind 

might accept as adequate to support a conclusion.” Simpson v. Office of Pers. Mgmt., 347 F.3d 1361, 1364 (Fed. 

Cir. 2003) (quoting Consol. Edison Co. v. NLRB, 305 U.S. 

197, 229 (1938)). Ms. Rakowsky has the burden of 

demonstrating by a preponderance of the evidence that 

she is entitled to a survivor annuity. Cheeseman v. Office 

of Pers. Mgmt., 791 F.2d 138, 141 (Fed. Cir. 1986).

The election of a survivor annuity in cases where a retired employee remarries after retirement is governed by 

5 U.S.C. § 8339(j)(5)(C)(i), which states, in relevant part, 

that:

Upon remarriage, a retired employee or Member 

who was married at the time of retirement . . . 

may irrevocably elect during such marriage, in a 

signed writing received by [OPM] within 2 years 

after such remarriage . . . , a reduction in the employee or Member’s annuity under paragraph (4) 

of this subsection for the purpose of providing an 

annuity for such employee or Member’s spouse in 

the event such spouse survives the employee or 

Member.

The statutory provision does not require an election of a 

survivor annuity in any particular form, but it must show 

an “unmistakable intent” to make such an election. 

Harris v. Office of Pers. Mgmt., 985 F.2d 549, 550 (Fed.

Cir. 1993). Any signed writing that manifests the annuitant’s intent to make an election will suffice. Dorsey v. 
RAKOWSKY v. OPM 5

Office of Pers. Mgmt., 587 F.3d 1111, 1114 (Fed. Cir. 

2009).

Ms. Rakowsky argues that the evidence clearly shows 

that her husband intended to provide a survivor annuity 

for her, even though he did not file an election. According 

to her, Mr. Rakowsky’s submission of Standard Forms 

2808 and 2823 in 1998 and the marriage certificate in 

2010, combined with his desire to take care of his family, 

demonstrates that he intended for Ms. Rakowsky to 

receive a survivor annuity.

We conclude that substantial evidence supports the 

Board’s determination that Mr. Rakowsky did not elect a 

survivor annuity in a signed writing, as required by 

statute. The forms Mr. Rakowsky submitted relate to 

other benefits and do not elect a survivor annuity benefit. 

See Dorsey, 587 F.3d at 1114 (holding that submission of 

the Standard Forms 2808 and 2823 did not demonstrate 

an intent to elect survivor annuity benefits). Accordingly, 

the forms themselves do not demonstrate an intent to 

elect survivor annuity benefits. See id.

Ms. Rakowsky also argues that her husband—by

sending in his marriage certificate, allegedly in 1997 and 

again in 2010, and notifying OPM of his change in marital 

status—sufficiently manifested his intent to elect a survivor annuity. Her evidence in support of this argument 

was not all before the administrative judge. Nor did the 

Board consider this evidence “because [it did] not constitute new evidence.” J.A. 10. Even if the Board had 

considered it, however, substantial evidence would still 

support the Board’s determination that Mr. Rakowsky did 

not elect to provide a survivor annuity for Ms. Rakowsky. 

This court has encountered this situation before and has 

held that a retired employee sending OPM a copy of his 

marriage certificate and placing his wife on his insurance 

before the time limit expired did not show an “unmistakable intent” to make a survivor annuity election. Taylor 
6 RAKOWSKY v. OPM

v. Office of Pers. Mgmt., 15 F. App’x 864, 866 (Fed. Cir. 

2001). Even where, in addition to filing a Designation of 

Beneficiary form with OPM, the retired employee also 

sent a letter stating, “I have remarried and would like to 

change my beneficiary for death benefits on my life insurance to [my new wife],” this court held that such actions 

did not evince a clear intent to elect survivor annuity 

benefits. Czvik v. Office of Pers. Mgmt., 20 F. App’x 890, 

891 (Fed. Cir. 2001). Because the conclusion that Mr. 

Rakowsky failed to make a legally sufficient election of 

such a benefit for Ms. Rakowsky is supported by substantial evidence, we must affirm. See Dorsey, 587 F.3d at 

1115. 

Finally, the law also provides that a former spouse 

may receive survivor annuity benefits even without an 

affirmative election by the annuitant if the annuitant 

intended to provide the annuity but did not receive the 

required notice. Hernandez v. Office of Pers. Mgmt., 450 

F.3d 1332, 1334–35 (Fed. Cir. 2006). To prove that it 

provided adequate notice, OPM must establish both “that 

the notice was actually sent . . . [and] the contents of the 

annual notice.” Brush v. Office of Pers. Mgmt., 982 F.2d 

1554, 1561 (Fed. Cir. 1992). If OPM can establish 

through credible evidence that it is more probable than 

not that the annual notice was sent, the burden of going 

forward falls upon the petitioner. Schoemakers v. Office 

of Pers. Mgmt., 180 F.3d 1377, 1380 (Fed. Cir. 1999). 

Ms. Rakowsky maintains on appeal that Mr. Rakowsky never received a personal notice from OPM. The 

Board reviewed OPM’s evidence and found that OPM 

properly notified Mr. Rakowsky of his right to elect a 

survivor annuity. OPM provided a declaration by Donna 

G. Lease in which she stated that she sent out annual 

notices to all annuitants, including Mr. Rakowsky, in 

December 1997 and December 1998. A declaration of a 

person familiar with how annual notices are prepared and 

sent can satisfy OPM’s burden to show that the annuitant 
RAKOWSKY v. OPM 7

received the annual notice. Schoemakers, 180 F.3d at 

1380–81. Further, OPM may satisfy its obligation by 

sending a general notice announcement rather than 

providing each annuitant with a personalized notice 

letter. Hairston v. Office of Pers. Mgmt., 318 F.3d 1127, 

1130 (Fed. Cir. 2003). The notices provided Mr. Rakowsky information regarding how to make an election, the 

time-frame within which he needed to do so, and the 

consequences of choosing a survivor annuity benefit. 

Thus, we agree that the notices were adequate.

OPM having established that the notices were sent, 

the burden shifts to Ms. Rakowsky to establish that her 

husband did not receive the annual notice. Schoemakers, 

180 F.3d at 1381. The Board must then decide whether it 

will credit the applicant’s testimony and whether that 

testimony overcomes the presumption that the notice was 

received. Brush, 982 F.2d at 1561. To rebut OPM’s 

evidence, Ms. Rakowsky provided testimony that Mr. 

Rakowsky “must not have received the notices.” J.A 17. 

Ms. Rakowsky did not provide any other evidence supporting her contention that the notices were not received. 

We agree with the administrative judge and the Board, 

therefore, that Ms. Rakowsky did not sustain her burden

to show that the annuitant did not receive the annual 

notices. See Schoemakers, 180 F.3d at 1381 (holding that 

a wife’s testimony that the notices may have been thrown 

out or misplaced by her husband and that she never 

received the notices did not establish that her husband, 

the annuitant, did not receive them).
8 RAKOWSKY v. OPM

In sum, the Board’s conclusion that Mr. Rakowsky did 

not elect a survivor annuity benefit, timely or not, for Ms. 

Rakowsky is supported by substantial evidence. We have 

considered all other arguments Ms. Rakowsky presents 

and find them unpersuasive. Accordingly, we affirm the 

Board’s decision. 

AFFIRMED

COSTS

The parties shall bear their own costs.