NOTE: This disposit ion is nonprecedential. 

## United States Court of Appeals for the Federal Circuit

2008-3168 ANNE M. SCALESE, Petitioner,

v. OFFICE OF PERSONNEL MANAGEMENT, Respondent.

Anne M. Scalese , of Loomis, California, pro se. David S. Silverbrand , Trial Attorney, Commercial Liti gation Branch, Civil Division, United States Department of Ju stice, of Washington, DC, for respondent. With him on the brief were Jeffrey S. Bucholtz , Acting Assistant Attorney General, Jeanne E. Davidson , Director, and Brian M. Simkin , Assistant Director. Appealed from: Merit S ystems Protection BoardNOTE: This disposition is nonprecedential. 

## United States Court of Appeals for the Federal Circuit

2008-3168 ANNE M. SCALESE, Petitioner,

v. OFFICE OF PERSONNEL MANAGEMENT, Respondent.

Petition for review of the Merit Syst ems Protection Board in SF0831070666-I-1.

___________________________ DECIDED: July 10, 2008

___________________________ Before MICHEL, Chief Judge , NEWMAN and BRYSON, Circuit Judges

. PER CURIAM. DECISION Anne M. Scalese petitions for review of the decision of the Merit Systems Protection Board affirming the denial of her request for an increased survivor annuity. We affirm

. BACKGROUND Ms. Scalese’s late husband, Joseph Scalese, retired from federal service in the spring of 1994. At that time, he fill ed out Standard Form 2801, “Application for Immediate Retirement.” Mr. Scalese elec ted a reduced annuity with a partial survivorannuity, which he indicated should be “55% of $3,600 per year.” He made that election by checking box 1b on Standard Form 2801, whic h effected the election of a reduced survivorship annuity, and by filling in the $3,600 dollar amount on the form. He then prepared Standard Form 2801-2, “Spouse’s Consent to Survivor Election,” on which he again indicated his election of a survivor annuity of 55% of $3,600 per year. The spousal consent form bears a notarized signatur e that purports to be Ms. Scalese’s. Upon the death of her husband, Ms. Scalese appli ed to the Office of Personnel Management (“OPM”) for an increased surv ivor annuity under the Civil Service Retirement System. Ms. Scalese alleged t hat her husband made a mistake in filling out his annuity election form and that he intended for her to receive the maximum annuity allowable. In response to what OPM char acterized as her “claim concerning Mr. Scalese’s mental state,” OPM determined t hat Ms. Scalese was not eligible for increased survivorship benefits because t here was no evidence that her husband was mentally incompetent at the time of the benefits elec tion. OPM also found that Ms. Scalese consented to the election by signing the form and having it notarized, and that Ms. Scalese had not shown any valid reason not to give full effect to the properly executed benefits election. Ms. Scalese appealed to the Board. The Board affirmed OPM’s decision, noting that Mr. Scalese did not request a change in hi s election of survivor benefits prior to his death and finding that Mr. Scalese was not menta lly incompetent at the time he made his annuity election. The Board also found that Ms. Scalese freely consented to the reduced survivor annuity. Ms. Scalese petiti oned for review by the full Board, but the petition was denied. This appeal followed.

2008-3168 2DISCUSSION Ms. Scalese first contends that the B oard erred in denying her request for an increased survivor annuity because her husband suffered from dementia, was unstable, and was confused at the time he retired and signed the forms. Ms. Scalese submitted a medical record showing that Mr. Sc alese was diagnosed in November 2000 with Alzheimer’s Disease. In that record, the di agnosing physician referred to at least a fiveyear history of forgetfulness. That evi dence, however, does not show that Mr. Scalese had dementia or was otherwise unstable or confused six and a half years earlier when he retired and filled out Standard Forms 2801 and 2801-2. The Board also found that the other medical evidence t hat was submitted “covered a time period well after Mr. Scalese’s retirement,” and therefore did not support a conclusion that Mr. Scalese was mentally incompetent at the ti me of the benefits election. Given the evidence that was before the Board, we cannot overturn the Board’s finding that t here is “no medical documentation to support [Ms. Scalese’s] a ssertion that [her husband] was mentally incompetent at the time he made his annuity election.” Additionally, as the Board noted, Mr. Scales e went through the effort of filling out box 1b on Standard Form 2801 and filling out the accompanying Standard Form 2801-2 with identical information indicating a surviv or’s annuity of “55% of $3,600 per year,” instead of simply checking box 1a, whic h would have provided for “maximum” benefits for his surviving spouse. While Mr. Scalese’ s conduct in this regard is not consistent with Ms. Scalese’s assertion that her husband promised that “she would receive onehalf of his monthly after his death,” her assertion as to his stated intention is not sufficient to overcome the apparently deli berate actions taken by Mr. Scalese when

2008-3168 3filling out Standard Forms 2801 and 2801-2. Ba sed on that evidence, we cannot conclude that the Board’s decision wa s unsupported by substantial evidence. Ms. Scalese also contends that OPM and t he Board did not consider the facts of the case. However, OPM and the Board bot h appear to have considered all of the evidence presented to them. Each considered the Standard Form 2801 signed by Mr. Scalese and the accompanying Standard Form 2801-2 signed by Ms. Scalese and notarized by a notary public. Each also considered the evidenc e of Mr. Scalese’s alleged dementia. OPM and the Board al so applied the correct statutes and regulations. The pertinent statutes, 5 U.S. C. §§ 8341(b)(1), 8339(j )(1), provide for a maximum survivor annuity of 55 percent of the retiree’s annuity “unless the employee . . . and the spouse jointly waive the spouse’s right to a survivor annuity in a written election filed with the Office at the time t he employee or Member retires.” See also 5 C.F.R. §831.614(a). Under an OPM regulati on, 5 C.F.R. §831.622(b )(1), Mr. Scalese could have elected “no later than 18 months a fter the time of retirement, an annuity reduction or an increased annuity reduction to provide a current spouse annuity.” By filling out forms 2801 and 2801-2, however, Mr. and Ms. Scalese waived Ms. Scalese’s right to the maximum annuity, and Mr. Scalese did not elect an increased annuity before the relevant 18-month period or at any time before his death. Ms. Scalese contends that she did not sign Standard Form 2801-1 and did not know of that form until OPM sent her a c opy after her husband’s death. Standard Form 2801-1 is the “Certified Summary of Feder al Service,” which her husband signed when he retired. It is irrelevant that she did not sign that form, as it does not require her signature. To the extent t hat she means to argue that she did not sign Standard Form

2008-3168 42008-3168 5 2801-2, which does require her si gnature, there is substantia l evidence that she signed that form. First, she previously admitt ed that she signed it. Second, the document bears her signature and was notar ized. Thus, substantial evidence supports the Board’s conclusion that she signed the spousal consent form. As to Ms. Scalese’s suggestion that she signed Standard Form 2801-2 but did not “read or pay attention to the many doc uments” that her hus band had notarized, her claimed lack of attention to the contents of the documents she signed is not a sufficient basis for overturning her consent to the reduced annuity election. It is a “settled proposition that one is not relie ved from the consequences of a written election absent a showing that mental incom petence, duress or fraud is t he reason for an election one later seeks to void.” Collin s v. Office of Pers. Mgmt. , 45 F.3d 1569, 1573 (Fed. Cir. 1995). Notwithstanding her unfortunate situation, we cannot reverse the Board, as Ms. Scalese has not made the requisite showing of Mr. Scalese’s “mental incompetence, duress or fraud” at the time he signed the documents. Id.