UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

BETTIE M. FORD,

Appellant,

v.

OFFICE OF PERSONNEL 

MANAGEMENT,

Agency.

DOCKET NUMBER

DC-0831-16-0647-I-1

DATE: October 11, 2022

THIS ORDER IS NONPRECEDENTIAL1

Bettie M. Ford, Washington, D.C., pro se.

Karla W. Yeakle, Washington, D.C., for the agency.

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, Member

Tristan L. Leavitt, Member

REMAND ORDER

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

affirmed the final decision of the Office of Personnel Management (OPM)

denying her request for a full Civil Service Retirement System (CSRS) survivor 

annuity. For the reasons discussed below, we GRANT the appellant’s petition for 

 

1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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

review, VACATE the initial decision, and REMAND the case to the Washington 

Regional Office for further adjudication in accordance with this Remand Order. 

BACKGROUND

¶2 The appellant’s late husband retired from Federal service under CSRS, 

effective April 27, 2007. Initial Appeal File (IAF), Tab 5 at 48. He submitted 

Standard Form 2801-2 (SF-2801-2), a Spouse’s Consent to Survivor Election, 

with his application for retirement. Id. at 45. On the SF-2801-2, a person 

purporting to be the appellant consented to a partial survivor annuity equal to 

55% of $3,090.81 per year. IAF, Tab 5 at 45, Tab 11, Initial Decision (ID) at 2. 

The appellant’s husband died on March 1, 2015, and the appellant submitted an 

application for death benefits. IAF, Tab 5 at 15; ID at 2. OPM awarded the 

appellant a partial survivor annuity in the amount of $161.00 per month. ID at 2. 

The appellant submitted a request for reconsideration, claiming that her late 

husband filled out the SF-2801-2 in a hurry, and he mistakenly elected as an 

annual partial survivor annuity the monthly amount that he was receiving at that 

time. IAF, Tab 5 at 14. She also contended that her late husband died suddenly, 

without getting his affairs in order, and he did not intend for her to receive only 

$161.00 per month. Id. at 13. The appellant further asserted that the signature on 

the notarized Spouse’s Consent to Survivor Election form was not hers. Id. at 14, 

45. 

¶3 OPM responded by informing the appellant that the monthly computed rate 

of her survivor annuity was correct based on the election made by her late 

husband when he retired. Id. at 6, 9. OPM stated that it had no reason to 

question the validity of the appellant’s notarized signature, attesting that she 

freely and irrevocably consented to her late husband’s election of a partial 

survivor annuity. Id. at 7. OPM also observed that her late husband’s annuity 

commenced on May 1, 2007, and therefore he had until December 1, 2008, to 

increase her survivor election but did not do so. Id. OPM further stated that it 
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had no administrative discretion in this matter and denied the appellant’s request 

for reconsideration in a final decision issued on April 28, 2016. Id. at 6-8. 

¶4 The appellant filed the instant appeal with the Board, challenging OPM’s 

final decision. IAF, Tab 1. On appeal, the appellant repeated the same arguments 

that she raised to OPM. IAF, Tab 5 at 3-4, Tab 10 at 3. She did not request a 

hearing. Based on the written record, the administrative judge issued an initial 

decision affirming OPM’s final decision. ID at 4. He found that the appellant 

failed to prove by preponderant evidence that her husband elected a full survivor 

annuity and that the agency demonstrated that she consented to a partial 

survivor’s annuity. Id. at 3-4. 

¶5 The appellant has filed a petition for review, reiterating the arguments she 

made before the administrative judge and OPM. Petition for Review File, Tab 1 

at 1-2. She reasserts that the signature on the notarized form was not hers and 

that her late husband mistakenly elected as her annual annuity the amount of his 

monthly annuity. Id. The appellant asks the Board to compare her signature in 

the appeal file to the notarized signature on the SF-2801-2 and see that the 

signatures do not match because she cannot afford a handwriting expert or a 

lawyer.2 Id. at 2. The appellant also reasserts that she would never have agreed 

to receive only $161.00 per month because she cannot survive on this amount. Id. 

The appellant further states that her husband wanted more for her, and he always 

provided for his family but he made a mistake. Id. 

ANALYSIS

¶6 Under the CSRS, the surviving spouse of a retired Federal employee is 

entitled to an annuity equal to 55% of the retiree’s annuity unless the survivor 

consented in writing to receive no such annuity or a reduced annuity at the time 

 

2 On appeal, the appellant provided examples of her signature on photocopies of her 

driver’s license, her Social Security card, a lease form, and a tax record. IAF, Tab 10 

at 3-9.
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of the employee’s retirement. 5 U.S.C. §§ 8339(j)(1), 8341(b)(1); Hathaway v. 

Office of Personnel Management, 118 M.S.P.R. 678, ¶ 7 (2012); 5 C.F.R. 

§ 831.614. Pursuant to 5 U.S.C. § 8339(j)(1), the election must be made in 

accordance with the requirements that OPM prescribes by regulation and that the 

election is irrevocable. OPM’s regulations provide, in pertinent part, that “[a]

married employee may not elect . . . a partially reduced annuity . . . without the 

consent of the current spouse,” 5 C.F.R. § 831.614(a), which must be filed on a 

form prescribed by OPM, 5 C.F.R. § 831.614(b). The form prescribed by OPM 

“require[s] that a notary public or other official authorized to administer oaths 

certify that the current spouse presented identification, gave consent, signed or 

marked the form, and acknowledged that the consent was given freely in the 

notary’s or official’s presence.” IAF, Tab 5 at 45; 5 C.F.R. § 831.614(c). The 

burden of proving entitlement to a survivor annuity is on the applicant for 

benefits. Cheeseman v. Office of Personnel Management, 791 F.2d 138, 140-41 

(Fed. Cir. 1986).

¶7 There is only one dispute of material fact in this appeal, namely whether the 

signature appearing on the SF-2801-2 Spouse’s Consent to Survivor Election is 

genuine. The administrative judge found, and we agree, that the signature 

appearing on the SF-2801-2 does not appear to be identical to the appellant’s 

signature as it appears on various other documents in the record. ID at 3; IAF, 

Tab 1 at 7, Tab 5 at 13, 21, 23, 45, Tab 10. Nevertheless, we also agree that these 

signatures are not so different that a layperson could say with any confidence that 

they were made by different people. ID at 3-4. Furthermore, we observe that the 

signature on the SF-2801-2 was notarized by one Sham Robertson and that the 

notarization of a signature creates a strong but rebuttable presumption of validity.

¶8 The Board is not bound, but may be guided by the Federal Rules of 

Evidence. Social Security Administration v. Long, 113 M.S.P.R. 190, ¶ 10 

(2010), aff’d, 635 F.3d 526 (Fed. Cir. 2011). Under Federal Rule of 

Evidence 302, “[i]n a civil case, state law governs the effect of a presumption 
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regarding a claim or defense for which state law supplies the rule of decision.” In 

this case, the SF-2801-2 reflects that the notarial act occurred in the District of 

Columbia and was made by a notary commissioned under the laws of the District. 

IAF, Tab 5 at 45. We therefore find that the effect of the notarization is 

determined under the laws of the District of Columbia. See Butler v. 

Encyclopedia Brittanica, Inc., 41 F.3d 285, 295 & n.6 (7th Cir. 1994) (applying 

state law to determine the effect of the notarization of a signature on an Empl oyee 

Retirement Income Security Act spousal waiver form). Under District of 

Columbia law, “to overcome the presumption arising from [the notary’s] 

certificate there must be proof of gross concurrent mistake or fraud, through 

strong and disinterested evidence.” Lewis v. Estate of Lewis, 193 A.3d 139, 144 

(D.C. 2018) (quoting Marden v. Hopkins, 47 App. D.C. 202, 206-07 (D.C. 1918)).

¶9 Although we agree with the administrative judge that the existing record 

does not contain sufficient evidence to rebut the presumed validity created by the 

notarization, ID at 4, we find that, in the interest of justice, the appeal should be 

remanded for further proceedings. Specifically, we find that the appellant was 

not fully apprised of the presumption created by the notarization or the type of 

evidence that might be sufficient to overcome it. Consequently, she may not have 

fully appreciated the importance of retaining a handwriting expert or requesting a 

hearing during which she would have the opportunity to testify as to genuineness 

of the signature on the SF-2801-2 or subpoena the notary or any disinterested 

witness to testify. Because this pro se appellant was not fully apprised of her 

burden on the dispositive issue and because the instant appeal concerns an 

application for civil service retirement benefits, see Irvine v. Office of Personnel 

Management, 83 M.S.P.R. 643, ¶ 9 n.1 (1999) (finding that the interest in 

reaching the correct result warranted some deviation from the strict adversarial 

model of adjudication in an OPM benefits case), we remand the appeal to the 

Washington Regional Office to give the appellant an additional opportunity to 

prove her claim in light of this Order.
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ORDER

¶10 For the reasons discussed above, we remand this case to the Washington 

Regional Office for further adjudication in accordance with this Remand Order. 

On remand, the appellant will be afforded an opportunity to rebut the presumption 

of validity created by the notarization, including an additional opportunity to 

elect a hearing if she so chooses.

 

 

FOR THE BOARD:

Washington, D.C.

/s/ for

Jennifer Everling

Acting Clerk of the Board