UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

ANTONIO L. ABE,

Appellant,

v.

OFFICE OF PERSONNEL 

MANAGEMENT,

Agency.

DOCKET NUMBER

SF-0831-16-0716-I-1

DATE: January 5, 2023

THIS FINAL ORDER IS NONPRECEDENTIAL1

Consuelo T. Abe, Malabon City, Philippines, for the appellant.

Cynthia Reinhold, Washington, D.C., for the agency.

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, Member

Tristan L. Leavitt, Member

FINAL ORDER

¶1 The appellant has filed a petition for review of the initial decision, which 

affirmed the reconsideration decision of the Office of Personnel Management 

(OPM) denying his request to elect a survivor annuity under the Civil Service 

Retirement System (CSRS) for his current spouse. Generally, we grant petitions 

 

1 A nonprecedential order is one that the Board has determined does not add 

significantly to the body of MSPB case law. Parties may cite nonprecedential orders, 

but such orders have no precedential value; the Board and administrative judges are not 

required to follow or distinguish them in any future decisions. In contrast, a 

precedential decision issued as an Opinion and Order has been identified by the Board 

as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
2

such as this one only in the following circumstances: the initial decision contains 

erroneous findings of material fact; the initial decision is based on an erroneous 

interpretation of statute or regulation or the erroneous application of the law to 

the facts of the case; the administrative judge’s rulings during either the course of 

the appeal or the initial decision were not consistent with required procedures or 

involved an abuse of discretion, and the resulting error affected the outcome of 

the case; or new and material evidence or legal argument is available that, despite 

the petitioner’s due diligence, was not available when the record closed. Title 5 

of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). 

After fully considering the filings in this appeal, we conclude that the petitioner 

has not established any basis under section 1201.115 for granting the petition for 

review. Therefore, we DENY the petition for review. Except as expressly 

MODIFIED by this Final Order to reflect the correct statutory provision 

applicable to this case, we AFFIRM the initial decision.

BACKGROUND

¶2 The appellant retired under the CSRS in April 1972. Initial Appeal File 

(IAF), Tab 1 at 5, Tab 8 at 28. At the time of his retirement, the appellant was

married and elected a survivor annuity for his then-spouse. IAF, Tab 8 at 28. 

The appellant’s then-spouse died in July 2008, and the appellant remarried in 

July 2009. Id. at 25-27. By letter dated June 6, 2015, the appellant informed 

OPM that his former spouse was deceased and he had remarried, and requested 

that “appropriate action be taken on matters immediately.” Id. at 22. OPM 

construed the appellant’s request as one to provide survivor annuity benefits for 

his current spouse and denied the request because the appellant did not notify 

OPM of an election of a reduced annuity with a survivor benefit within 2 years of 

the marriage. Id. at 20. The appellant requested reconsideration of OPM’s 

decision, stating that he failed to request a survivor annuity for his current spouse 

within 2 years of their marriage because weather conditions initially prevented 
3

him from mailing the request, and then he had forgotten to mail it, citing his age 

as the reason for his forgetfulness. Id. at 16, 19. On July 14, 2016, OPM issued a 

reconsideration decision affirming its initial decision. Id. at 8-9.

¶3 The appellant timely filed a Board appeal of OPM’s reconsideration 

decision.2 IAF, Tab 1. He did not request a hearing. Id. at 1. The administrative 

judge issued an Order Closing the Record finding that the Board has jurisdiction 

over the appeal, notifying the appellant of the requirements to prove his 

eligibility to elect a survivor annuity for his current spouse, and providing the 

parties with the opportunity to submit additional evidence and argument prior to

the date on which the record was scheduled to close. IAF, Tab 9 at 1-4. 

¶4 The administrative judge issued an initial decision affirming OPM’s 

reconsideration decision, based on the written record. IAF, Tab 11, Initial 

Decision (ID). The administrative judge found that the appellant was required by 

statute to make a written request to elect a survivor annuity for his current spouse 

within 2 years of their marriage but that he did not submit a request until 2015 

and that therefore, he did not timely elect a survivor annuity for his current 

spouse. ID at 3-4. The administrative judge further found that the appellant did 

not show a basis for waiving the deadline to elect a survivor annuity. ID at 4-7. 

Specifically, she found that the statute setting forth the filing deadline did not 

provide for a waiver of the deadline, that OPM did not misinform the appellant of 

the necessary steps to make the election, and that OPM complied with the 

statutory requirement to annually inform the appellant of his election rights. Id. 

¶5 The appellant has timely filed a petition for review in which he requests 

leniency concerning his failure to timely elect a survivor annuity and argues that 

it is not in the interest of justice to deny his request because he is more than 

 

2

The appellant received OPM’s July 14, 2016 reconsideration decision on July 31, 

2016. IAF, Tab 1 at 3, Tab 8 at 7. He mailed his appeal, postmarked August 16, 2016, 

to OPM, which forwarded the appeal to the Board’s Washington Regional Office. IAF, 

Tab 1 at 9, 11. 
4

90 years old and sickly.3 Petition for Review (PFR) File, Tab 1 at 2. OPM has 

filed a response opposing the petition for review. PFR File, Tab 4. For the 

reasons set forth below, we affirm the initial decision, as modified.

DISCUSSION OF ARGUMENTS ON REVIEW

¶6 An individual seeking retirement benefits bears the burden of proving his 

entitlement to those benefits by preponderant evidence. Cheeseman v. Office of 

Personnel Management, 791 F.2d 138, 140-41 (Fed. Cir. 1986); 5 C.F.R. 

§ 1201.56(b)(2)(ii). To meet this burden, the appellant must show that he elected 

to provide a survivor annuity for his current spouse in a signed writing received 

by OPM within 2 years after his remarriage. 5 U.S.C. § 8339(j)(5)(C)(i); Kirk v. 

Office of Personnel Management, 93 M.S.P.R. 547, ¶ 4 (2003).

¶7 Here, the administrative judge found that the appellant married his current 

spouse in July 2009 but did not write to OPM to elect a survivor annuity for her 

until June 6, 2015, nearly 6 years after the marriage. ID at 3-4. Thus, the 

administrative judge determined that the appellant had not timely elected a 

survivor annuity for his current spouse. ID at 4. The appellant has not disputed 

this finding, and we discern no reason to disturb the administrative judge’s 

finding, as the record reflects that she considered the evidence as a whole, drew 

appropriate inferences, and made reasoned conclusions. Id.; see Clay v. 

Department of the Army, 123 M.S.P.R. 245, ¶ 6 (2016) (finding no reason to 

disturb the administrative judge’s findings when she considered the evidence as a 

whole, drew appropriate inferences, and made reasoned conclusions); Broughton 

v. Department of Health & Human Services, 33 M.S.P.R. 357, 359 (1987) (same).

 

3

The appellant mailed his petition for review of the December 12, 2016 initial decision

on January 4 or 6, 2017, to the Board’s Western Regional Office. PFR File, Tab 1 

at 3-4. The Western Regional Office forwarded the petition for review to the Office of 

the Clerk of the Board, which deemed the petition timely filed on January 6, 2017. PFR 

File, Tab 1 at 1, Tab 2. 
5

¶8 On review, the appellant requests a waiver of the filing deadline because of 

his advanced age and ill health. PFR File, Tab 1 at 2. As noted by the 

administrative judge, the Board has recognized three bases for waiving a filing 

deadline prescribed by statute or regulation: (1) the statute or regulation may 

provide for a waiver under specified circumstances; (2) an agency’s affirmative 

misconduct may preclude enforcing the deadline under the doctrine of equitable 

estoppel; and (3) an agency’s failure to provide a notice of rights and the 

applicable filing deadline, where such notice is required by statute or regulation, 

may warrant waiver of the deadline. Perez Peraza v. Office of Personnel 

Management, 114 M.S.P.R. 457, ¶ 7 (2010). Although the administrative judge 

did not cite the correct statutory provision applicable to this case, 5 U.S.C.

§ 8339(j)(5)(C)(i), she correctly found that the statutory provision at issue does

not permit waiver of the filing deadline.4 ID at 3-4; see Shaughnessy v. Office of 

Personnel Management, 43 M.S.P.R. 633, 637-38 (1990) (holding that, in the 

case of an annuitant who was married at the time of his retirement and later 

remarried, 5 U.S.C. § 8339(j)(1) did not provide a waiver of the time limit to 

make an election after remarriage on the basis that the annuitant was mentally

incompetent); cf. Schoemakers v. Office of Personnel Management, 180 F.3d 

1377, 1381-82 (Fed. Cir. 1999) (holding that 5 U.S.C. § 8339(k)(2)(A) does not 

permit waiver of the filing deadline to elect a survivor annuity after marriage 

because of the annuitant’s mental condition). 

 

4

The administrative judge cited 5 U.S.C. § 8339(k)(2)(A), which pertains to an 

employee who was unmarried at the time of retirement, whereas 5 U.S.C.

§ 8339(j)(5)(C)(i) pertains to an employee who was married at the time of retirement. 

ID at 3. The appellant in this case was married at the time of retirement. See IAF, 

Tab 8 at 28. Thus, we modify the initial decision to reflect that the statutory provision 

applicable to this case is 5 U.S.C. § 8339(j)(5)(C)(i). However, sections 8339(k)(2)(A)

and 8339(j)(5)(C)(i) provide nearly identical language regarding the requirement that 

electing a survivor annuity occur within 2 years after a post-retirement marriage; thus, 

the administrative judge’s citing the incorrect statutory provision did not affect her 

correct analysis of the statutory language. Compare 5 U.S.C. § 8339(j)(5)(C)(i), with

5 U.S.C. § 8339(k)(2)(A). 
6

¶9 The appellant does not dispute the administrative judge’s finding that the 

agency did not engage in affirmative misconduct that could preclude enforcing

the filing deadline, nor do we discern any reason to disturb the administrative 

judge’s findings on this point. ID at 4-5; see Clay, 123 M.S.P.R. 245, ¶ 6. 

¶10 The appellant also does not dispute the administrative judge’s finding that 

OPM met its burden to show that it properly notified the appellant of the 

applicable filing deadline. ID at 5-7. OPM has a statutory obligation to notify 

annuitants annually of their survivor annuity election rights under 5 U.S.C. 

§ 8339(j). Act of July 10, 1978, Pub. L. No. 95-317, 92 Stat. 382 (1978)

(codified at 5 U.S.C. § 8339 note); Brush v. Office of Personnel Management, 

982 F.2d 1554, 1559-60 (Fed. Cir. 1992). OPM has the burden of proving both 

that it sent the annual notice and the contents of the notice. Brush, 982 F.2d 

at 1561; Cartsounis v. Office of Personnel Management, 91 M.S.P.R. 502, ¶ 5 

(2002). In determining whether the content of the agency’s annual notice s to an 

annuitant adequately informed him of his election rights, the Board will look to 

the notices sent immediately after the event that would result in the need to make 

a new election. Allen v. Office of Personnel Management, 99 M.S.P.R. 653, ¶ 9 

(2005). If OPM establishes through credible evidence that it is more probable 

than not that it sent the annual notices, the appellant then must present credible 

testimony or other evidence supporting the contention that he did not receive the 

notices. Cartsounis, 91 M.S.P.R. 502, ¶ 5.

¶11 Here, the OPM official responsible for printing and distributing retirement 

forms and notices provided an affidavit explaining that general notices regarding 

survivor elections were sent annually to all annuitants on OPM’s master annuity 

roll from 1989 to 2010. IAF, Tab 8 at 10-11. Such notice satisfies OPM’s burden 

of proving that it sent the required annual notice. See Schoemakers, 180 F.3d 

at 1380-81 (holding that a similar affidavit from a person familiar with how 

annual notices are prepared and sent can satisfy OPM’s burden to show that the 

annual notices were sent). The record includes copies of the notices sent to the 
7

appellant in December 2009 and December 2010, which contain a section titled

“Survivor Election for a Spouse You Marry After Retirement” and provide the 

appellant with his right to elect a survivor annuity, including information

regarding how to make an election, the time frame within which to do so, and the 

consequences of choosing a survivor annuity benefit. IAF, Tab 8 at 12-15. 

Accordingly, we agree with the administrative judge’s findings that OPM sent

general notices in December 2009 and December 2010, within the 2-year period 

after the appellant’s remarriage, and we find that the content of each notice

adequately informed him of his right to elect a survivor annuity.

5

 ID at 5-7; see

Dorsey v. Office of Personnel Management, 587 F.3d 1111, 1115 (Fed. Cir. 2009) 

(finding that OPM provided the annuitant adequate notice of his right to elect a 

survivor annuity where the notices provided 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). Based on our review of the 

record, we also agree with the administrative judge that the appellant did not

present evidence showing that he did not receive the annual notices. ID at 6. We 

thus find no basis on which to waive the statutory filing deadline. 

¶12 Accordingly, we find that the administrative judge properly affirmed OPM’s 

reconsideration decision that denied the appellant’s request for a survivor annuity 

for his current spouse.

 

5

The administrative judge only made findings regarding the adequacy of the content of 

OPM’s notices with respect to the December 2010 notice. ID at 6-7. Our review of the 

record reflects that the notice to which the administrative judge referred was issued in 

December 2009, and the second notice that appears in the record was issued in 

December 2010. IAF, Tab 8 at 12-15. The notices could cause confusion as to the date 

on which they were sent to the appellant, as the first notice refers to a January 2010 

payment, and the second notice refers to a January 2011 payment; however, these 

references appear in the context of notifying the annuitant of adjustments to his 

payment for the upcoming year. See id. We find that the content of each notice 

adequately informed the appellant of his right to elect a survivor annuity. See id.
8

NOTICE OF APPEAL RIGHTS6

The initial decision, as supplemented by this Final Order, constitutes the 

Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain 

review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of 

your claims determines the time limit for seeking such review and the appropriate 

forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following 

summary of available appeal rights, the Merit Systems Protection Board does not 

provide legal advice on which option is most appropriate for your situation and 

the rights described below do not represent a statement of how courts will rule 

regarding which cases fall within their jurisdiction. If you wish to seek review of 

this final decision, you should immediately review the law applicable to your 

claims and carefully follow all filing time limits and requirements. Failure to file 

within the applicable time limit may result in the dismissal of your case by your 

chosen forum.

Please read carefully each of the three main possible choices of review 

below to decide which one applies to your particular case. If you have questions 

about whether a particular forum is the appropriate one to review your cas e, you 

should contact that forum for more information. 

(1) Judicial review in general. As a general rule, an appellant seeking 

judicial review of a final Board order must file a petition for review with the U.S. 

Court of Appeals for the Federal Circuit, which must be received by the court 

within 60 calendar days of the date of issuance of this decision. 5 U.S.C. 

§ 7703(b)(1)(A). 

 

6

Since the issuance of the initial decision in this matter, the Board may have updated 

the notice of review rights included in final decisions. As indicated in the notice, the 

Board cannot advise which option is most appropriate in any matter.
9

If you submit a petition for review to the U.S. Court of Appeals for the 

Federal Circuit, you must submit your petition to the court at the 

following address: 

U.S. Court of Appeals 

for the Federal Circuit 

717 Madison Place, N.W. 

Washington, D.C. 20439 

Additional information about the U.S. Court of Appeals for the Federal 

Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular 

relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is 

contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. 

If you are interested in securing pro bono representation for an appeal to 

the U.S. Court of Appeals for the Federal Circuit, you may visit our website at 

http://www.mspb.gov/probono for information regarding pro bono representation 

for Merit Systems Protection Board appellants before the Federal Circuit. The 

Board neither endorses the services provided by any attorney nor warrants that 

any attorney will accept representation in a given case. 

(2) Judicial or EEOC review of cases involving a claim of 

discrimination. This option applies to you only if you have claimed that you 

were affected by an action that is appealable to the Board and that such action 

was based, in whole or in part, on unlawful discrimination. If so, you may obtain 

judicial review of this decision—including a disposition of your discrimination 

claims—by filing a civil action with an appropriate U.S. district court (not the 

U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you 

receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems 

Protection Board, 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a 

representative in this case, and your representative receives this decision before 

you do, then you must file with the district court no later than 30 calendar days

after your representative receives this decision. If the action involves a claim of 
10

discrimination based on race, color, religion, sex, national origin, or a disabling 

condition, you may be entitled to representation by a court-appointed lawyer and 

to waiver of any requirement of prepayment of fees, costs, or other security. See

42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a. 

Contact information for U.S. district courts can be found at their respective 

websites, which can be accessed through the link below: 

http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx. 

Alternatively, you may request review by the Equal Employment 

Opportunity Commission (EEOC) of your discrimination claims only, excluding 

all other issues. 5 U.S.C. § 7702(b)(1). You must file any such request with the 

EEOC’s Office of Federal Operations within 30 calendar days after you receive

this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, 

and your representative receives this decision before you do, then you must file 

with the EEOC no later than 30 calendar days after your representative receives

this decision. 

If you submit a request for review to the EEOC by regular U.S. mail, the 

address of the EEOC is: 

Office of Federal Operations 

Equal Employment Opportunity Commission 

P.O. Box 77960 

Washington, D.C. 20013 

If you submit a request for review to the EEOC via commercial delivery or 

by a method requiring a signature, it must be addressed to: 

Office of Federal Operations 

Equal Employment Opportunity Commission 

131 M Street, N.E. 

Suite 5SW12G 

Washington, D.C. 20507 

(3) Judicial review pursuant to the Whistleblower Protection 

Enhancement Act of 2012. This option applies to you only if you have raised 

claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or 
11

other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). 

If so, and your judicial petition for review “raises no challenge to the Board’s 

disposition of allegations of a prohibited personnel practice described in section 

2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), 

(B), (C), or (D),” then you may file a petition for judicial review either with the 

U.S. Court of Appeals for the Federal Circuit or any court of appeals of 

competent jurisdiction.7 The court of appeals must receive your petition for 

review within 60 days of the date of issuance of this decision. 5 U.S.C. 

§ 7703(b)(1)(B). 

If you submit a petition for judicial review to the U.S. Court of Appeals for 

the Federal Circuit, you must submit your petition to the court at the 

following address: 

U.S. Court of Appeals 

for the Federal Circuit 

717 Madison Place, N.W. 

Washington, D.C. 20439 

Additional information about the U.S. Court of Appeals for the Federal 

Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular 

relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is 

contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. 

If you are interested in securing pro bono representation for an appeal to 

the U.S. Court of Appeals for the Federal Circuit, you may visit our website at 

http://www.mspb.gov/probono for information regarding pro bono representation 

for Merit Systems Protection Board appellants before the Federal Circuit. The 

 

7

The original statutory provision that provided for judicial review of certain 

whistleblower claims by any court of appeals of competent jurisdiction expired on 

December 27, 2017. The All Circuit Review Act, signed into law by the President on 

July 7, 2018, permanently allows appellants to file petitions for judicial review of 

MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals 

for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. 

The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195, 

132 Stat. 1510. 
12

Board neither endorses the services provided by any attorney nor warrants that 

any attorney will accept representation in a given case. 

Contact information for the courts of appeals can be found at their 

respective websites, which can be accessed through the link below: 

http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx. 

 

 

FOR THE BOARD:

Washington, D.C.

 /s/ for 

Jennifer Everling

Acting Clerk of the Board