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

05-3017 WYONE L. SOWELL, Petitioner,

v. OFFICE OF PERSONNEL MANAGEMENT, Respondent.

_______________________ DECIDED: August 4, 2005

_______________________ Before NEWMAN, Circuit Judge , ARCHER, Senior Circuit Judge , and RADER, Circuit Judge

. PER CURIAM. Wyone L. Sowell (“Mrs. Sowell”) appeals the Merit Systems Protection Board’s (“Board”) decision affirming the Office of Personnel Management’s (“OPM”) denial of her request for survivor annuity benefits purs uant to the Civil Service Retirement System (“CSRS”). Sowell v. Office of Pers. Mgmt. , No. AT-0831-03-0697-I-1 (M.S.P.B. Oct. 24, 2003). Because Sowell’s husband fail ed to make a timely election for such benefits pursuant to 5 U.S.C. § 8339(j)(5)(C)(i), we affirm

. Mr. Sowell retired from federal service on November 30, 1990. At the time of his retirement, he was married to Almer Sowell, for whom he elected a survivor annuity. Mr. Sowell was divorced from Almer Sowell in 1995, and an amended divorce decree provided a survivor annuity for Almer as fo llows: “[I]n addition to the benefit assignedthe Former Spous e in the imm ediately preceding par agraph, the OPM shall assign t o the Former Spouse a portion of t he Annuitant’s CSRS benefit sufficient to provide the Former Spouse with, and the O P M shall pay to the F o rmer Spouse, a former spouse annuity pay able after the Annuitant’s death for the life of the Former Spouse.” Since Mr. Sowell’s death, Almer Sowell has been receiving a monthly annuity benefit. Later in 1995, Mr. Sowell married Jackie Trent. In October of that year, Mr. Sowell des ignated her as his beneficiary for any lump-sum benefits payable under the CSRS after his death. Mr. Sowell and Jacki e Trent divorced in 19 97. Following Mr. Sowell’s death, OPM determined that Jackie Trent was enti tled to accrued monthly annuity benefits for the number of days he was alive in the month of November 2002. Mr. Sowell married Mrs. So well in August 2002 and died four months later. OPM concluded that since Mrs. Sowe ll had not been married to Mr. Sowell for at least nine months, she was ineligible for survivor ann uity benefits. OPM further noted that Mr. Sowell nev er elected a survivor annuity on Mrs. Sowell’s behalf. Mrs. Sowell appealed to the Board assert ing that she and Mr. Sowell h a d ent ered into a common law marriage in October 1997. An administrative judge (“AJ”) determined that Mrs. Sowell had not establis hed her eligibility for survi v or annuit y benefits under the CSRS, because even if s he and Mr. Sowell wer e married, Mr. Sowell had never filed a written election for a surviv orship annuity with OP M for Mrs. Sowell. The AJ als o found that broad language in M r . So well’s will did not “expressly provide”

05-3017 2annuity benefits for Mrs. Sowell, as required under 5 U.S.C. § 8341(h). 1 The full Board denied Mrs. Sowell’s pe tition for review, and the AJ’s dec i sion became final. This appeal followed. We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(9). Our scope of review in an appeal from a decision of the Board is limited. Specifically , we must affirm the Board's dec ision 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). Elig ib ility to elect survivor benef its under the CSRS is governed by 5 U.S.C. § 8339(j)(5)(C)(i). Th is provision provides that an annuitant who is married at the time of retirement, and who s ubs equent ly remarries, may irrevocably elect survivorship benefits f o r the new spouse in a signed writing receiv ed by OPM within two years after such remarriage. Mrs. Sowell conc edes that Mr. Sowell never filed a written election with OPM. As to Mrs. Sowell’s as sertion that Mr. So well’s will provided t he requisite e l ection, Mrs. Sowell has not indicated any authority suggesting that an annuitant’s will, whic h was not filed with OPM, may be substituted for the written election requir ement. And while it appears that the law does not require that an election be in any particular form, one must manifest an “unmistakeable in tent” for such a designation. Se e Harris v.

1 The will contained the following statement: I give, devise and bequeath all of my property, whether real, personal or mixed, of whatever kind and nature and desc r iption and wherever located, which I now have or may die seized and possessed of or be entitled to absolutely and in fee simple to my wife, Wyone Sowell.

05-3017 3Office of Pers. Mgmt. , 985 F.2d 549, 550 (Fed. Cir. 1993) . The language in the wil l does not express l y provide survivor annuity benefits for Mrs. Sowell as required pursuant to 5. U.S.C. § 8341(h) , nor does it manifest an unm istakable intent that Mr. Sowell was electing a survivorship annuity benefit for Mrs. Sowell. Accordingly, we affirm the Board’s decision.

05-3017 4