. 

NOTE: This disposition is nonprecedential. 

United States Court of Appeals 

for the Federal Circuit 

__________________________ 

SANDRA H. MILLER, 

Petitioner, 

v. 

OFFICE OF PERSONNEL MANAGEMENT 

Respondent. 

__________________________ 

2010-3170 

__________________________ 

Petition for review of the Merit Systems Protection 

Board in case No. CH0831090682-I-1. 

___________________________ 

Decided: January 18, 2011 

___________________________ 

SANDRA H. MILLER, of Blue Eye, Missouri, pro se. 

DANIEL B. VOLK, Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department of 

Justice, of Washington, DC, for respondent. With him on 

the brief were TONY WEST, Assistant Attorney General, 

JEANNE E. DAVIDSON, Director, and REGINALD T. BLADES,

JR., Assistant Director. Of counsel on the brief was PAUL 

N. ST. HILLAIRE, Office of General Counsel, Office of 

Personnel Management, of Washington, DC. 
MILLER v. OPM 2

__________________________ 

Before RADER, Chief Judge, and LINN and MOORE, Circuit 

Judges. 

PER CURIAM. 

Sandra H. Miller (Mrs. Miller) appeals the decision of 

the Merit Systems Protection Board (Board) affirming the 

Office of Personnel Management’s (OPM) decision finding 

that she was not entitled to a survivor annuity based on 

the Federal service of her late spouse. Sandra H. Miller 

v. Office of Pers. Mgmt., No. CH-0831-09-0682-I-1 

(M.S.P.B. June 24, 2010). For the reasons discussed 

below, this court affirms. 

BACKGROUND

Frank Miller (Mr. Miller) retired from Federal service 

under the Civil Service Retirement System on March 3, 

1984. Upon his retirement, Mr. Miller elected a survivor 

annuity benefit for his then spouse, Betty L. Miller. Betty 

Miller passed away on September 13, 2001, and Mr. 

Miller married Sandra Miller on August 17, 2002. 

For two years following his remarriage, Mr. Miller 

was eligible to elect a survivor annuity for Mrs. Miller. 5 

U.S.C. § 8339(j)(5)(C)(i). OPM, however, has no record of 

Mr. Miller requesting to elect a survivor annuity for Mrs. 

Miller. After remarrying, Mr. Miller did change some of 

his benefits. For example, on October 21, 2002, OPM 

received a Designation of Beneficiary SF-2808 form from 

Mr. Miller designating Mrs. Miller to receive 100% of any 

accrued annuity payable. The SF-2808 form does not 

relate to survivor annuity elections. Also, via a letter 

dated February 14, 2005, OPM informed Mr. Miller that 

based on his request it changed his health benefits from 
3 MILLER v. OPM

“self” to “self and family,” thus providing Mrs. Miller 

coverage. 

Mr. Miller passed away in 2008 and Mrs. Miller applied for a survivor annuity as his widow. On November 

20, 2008, OPM denied Mrs. Miller’s request because it 

had no record of receiving any correspondence from Mr. 

Miller electing a survivor annuity for Mrs. Miller. After 

Mrs. Miller requested reconsideration, OPM affirmed its 

initial decision on May 7, 2009. Mrs. Miller appealed the 

decision to the Board. After reviewing Mrs. Miller’s 

varying arguments regarding why she was entitled to a 

survivor annuity, the Board affirmed the OPM decision. 

The Board determined that Mrs. Miller failed to prove 

that Mr. Miller submitted an election of a survivor annuity for Mrs. Miller to the OPM or that OPM received such 

correspondence. The Board also noted that Mrs. Miller 

had advanced three different stories regarding Mr. 

Miller’s alleged election of benefits and none of the stories 

proved by a preponderance of the evidence that Mr. Miller 

made such an election. Mrs. Miller appeals. We have 

jurisdiction pursuant to 28 U.S.C. § 1295(a)(9). 

DISCUSSION

We must affirm a decision of the Board 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.” Dickey v. Office of Pers. Mgmt., 419 F.3d 1336, 

1339 (Fed. Cir. 2005). 

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, inter alia, that: 
MILLER v. OPM 4

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 . . . for the purpose of 

providing an annuity for such employee or Member’s spouse in the event such spouse survives the 

employee or Member. 

Though the statute does not require annuitants to use 

any particular form to elect such benefits, the statute does 

require a “signed writing” manifesting the annuitant’s 

election, which OPM must receive within 2 years of the 

retired employee’s remarriage. See Harris v. Office of 

Pers. Mgmt., 985 F.2d 549, 550 (Fed. Cir. 1993). 

OPM states that it never received any correspondence 

from Mr. Miller electing a survivor annuity for Mrs. 

Miller, and Mrs. Miller failed to submit a copy of any 

request. Contrary to Mrs. Miller’s claims, the Board 

considered Mrs. Miller’s allegations including her claim 

that Mr. Miller timely filed appropriate paperwork to 

elect the survivor annuity and that OPM subsequently 

lost or misfiled it. In its opinion, the Board noted Mrs. 

Miller’s allegation but found that she failed to prove 

either that Mr. Miller submitted an election as required 

by the statute or that OPM received such an election from 

Mr. Miller. The Board noted that Mrs. Miller did not 

state she read the correspondence Mr. Miller allegedly 

sent to OPM and the Board determined that it was more 

likely that the correspondence sent was related to Mr. 

Miller’s request to change his health benefits to include 

Mrs. Miller. 

The Board also noted that Mrs. Miller’s story regarding her husband’s election of survivor benefits has evolved 
5 MILLER v. OPM

over time and that her two earlier stories contradict her 

new argument that she saw Mr. Miller timely submit a 

proper election. For example, Mrs. Miller claimed in 

response to OPM’s initial denial that Mr. Miller contacted 

OPM by telephone in October 2004 to change his benefits 

and that, after receiving OPM’s February 14, 2005 letter, 

Mr. Miller assumed that his survivor benefits had been 

changed. Later, in her appeal form to the Board, Mrs. 

Miller claimed that Mr. Miller believed his submission of 

his SF-2808 designating Mrs. Miller as the beneficiary of 

any accrued annuity payable constituted an election of a 

survivor annuity.1 If Mrs. Miller actually believed, as she 

now asserts on appeal, that Mr. Miller submitted an 

election for a survivor annuity, which OPM subsequently 

lost or misplaced, we see no reason she would have earlier 

advanced contradictory arguments regarding Mr. Miller’s 

intent to elect such a benefit. We find no reversible error 

in the Board’s determination that Mrs. Miller failed to 

prove that Mr. Miller elected a survivor annuity for her. 

Substantial evidence supports the Board’s factual findings 

and Mrs. Miller has failed to show that its decision was 

arbitrary, capricious, an abuse of discretion, or otherwise 

not in accordance with law. 2

 1 Mrs. Miller does not appeal the Board’s rejection 

of these two arguments. 

2 Mrs. Miller also submitted copies of “Explanation 

of Benefits” forms from Anthem Blue Cross and Blue 

Shield alleging that her health insurance continued 

beyond Mr. Miller’s death in support of her allegation that 

OPM lost or misplaced Mr. Miller’s election of a survivor 

annuity. This Court expresses no opinion on her continued entitlement to health insurance. Because substantial 

evidence supports that Mr. Miller did not elect a survivor 

annuity for Mrs. Miller as required by 

5 U.S.C. § 8339(j)(5)(C)(i) we must affirm. The fact that 

she continues to receive health benefits does not establish 
MILLER v. OPM 6

CONCLUSION

For the reasons discussed above, we affirm the 

Board’s holding denying Mrs. Miller entitlement to a 

survivor annuity benefit. 

AFFIRMED 

COSTS

Each party shall bear its own costs. 

 

that Mr. Miller made the proper annuity election in 

writing as required by the statute.