Rakowsky v. Office of Personnel Management

705 F. App'x 986
CourtCourt of Appeals for the Federal Circuit
DecidedAugust 11, 2017
Docket2017-1742
StatusUnpublished

This text of 705 F. App'x 986 (Rakowsky v. Office of Personnel Management) is published on Counsel Stack Legal Research, covering Court of Appeals for the Federal Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Rakowsky v. Office of Personnel Management, 705 F. App'x 986 (Fed. Cir. 2017).

Opinion

Per Curiam.

This is an appeal from a decision of the Merit Systems Protection Board (“Board”) affirming a decision of the Office of Personnel Management (“OPM”) that the Appellant Nataliya Rakowsky was not entitled to a survivor’s annuity. We affirm.

I

On December 29, 1986, Ihor Rakowsky retired from the federal service and from the position of Supervisory Special Agent, Drug Enforcement Administration, Department of Justice. Upon retirement, he elected a maximum survivor annuity (55%) to be payable to his then-wife Sophie Kan-diuk upon his death. To effectuate his annuity election, Mr. Rakowsky executed the “Alternative Annuity Election” form, which provided that he elected “to receive the reduced alternative annuity.” J.A. 24. Following his submission of the form to OPM, Mr. Rakowsky’s monthly annuity payments were reduced to account for the survivor benefit election.

Ten years after his retirement, Mr. Ra-kowsky advised OPM that his wife had died, and, as a result, he requested that OPM “kindly make the necessary changes in [his] records and advise.” J.A. 25. In response, OPM sent Mr. Rakowsky a letter advising him that his annuity was adjusted to full life rate due to the change in his marital status.

Mr. Rakowsky married the Appellant in 1997. About a year later, Mr. Rakowsky executed a Standard Form (SF) 2808, “Designation of Beneficiary,” designating the Appellant as the beneficiary to “re *988 ceive any lump-sum benefit which may become payable under the Civil Service Retirement law after my death.” J.A. 56. This form also states, “I understand that this designation of beneficiary will not affect the rights of any survivors who may qualify for annuity benefits after my death.” Id. Mr. Rakowsky also executed a SF-2823 “Designation of Beneficiary” form for the Federal Employees’ Group Life Insurance Program, designating the appellant as his beneficiary. Mr. Rakowsky continued to receive annuity payments at the full life rate.

In December 1997 and December 1998, OPM sent notices to Mr. Rakowsky informing him that, if he married subsequent to his retirement, he had two years from the date of his marriage to elect a survivor annuity for his new spouse.

In 2010, OPM informed Mr. Rakowsky that a valid marriage certificate was missing from his personnel file and requested he provide a copy to be included in the file. Following this notification, Mr. Rakowsky made the required submission and requested that OPM send him three copies of his file. Mr. Rakowsky, however, did not reference a survivor benefit annuity, and he did not state that he desired a reduction in his monthly annuity rate.

Mr. Rakowsky died in 2013. Following his death, Ms. Rakowsky filed a claim for a survivor annuity benefit. OPM denied the request because Mr. Rakowsky had not elected a survivor annuity benefit within the statutorily prescribed two-year period after his marriage. Ms. Rakowsky requested reconsideration of the decision and OPM again denied her request, finding that Mr. Rakowsky failed to make a timely election to provide her an annuity.

. Ms. Rakowsky filed an initial appeal with the Board challenging OPM’s denial of her application for a survivor annuity. Folio-wing a telephonic conference, the administrative judge affirmed OPM’s decision. The full Board denied her petition for review, thus rendering the initial decision final. 5 C.F.R. § 1201.113(b). Ms. Rakow-sky timely appealed to this court. We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(9).

II

Our review of a decision of the Board is strictly limited by statute. 5 U.S.C. § 7703(c). We must affirm a Board’s decision 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.” Id. “Substantial evidence” is defined as “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Simpson v. Office of Pers. Mgmt., 347 F.3d 1361, 1364 (Fed. Cir. 2003) (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 83 L.Ed. 126 (1938)). Ms. Rakowsky has the burden of demonstrating by a preponderance of the evidence that she is entitled to a survivor annuity. Cheeseman v. Office of Pers. Mgmt., 791 F.2d 138, 141 (Fed. Cir. 1986).

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, in relevant part, that:

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 under paragraph (4) of this subsection for the purpose of providing an annuity *989 for such employee or Member’s spouse in the event such spouse survives the employee or Member.

The statutory provision does not require an election of a survivor annuity in any particular form, but it must show an “unmistakable intent” to make such an election, Harris v. Office of Pers. Mgmt., 985 F.2d 549, 550 (Fed. Cir. 1993). Any signed writing that manifests the annuitant’s intent to make an election will suffice. Dorsey v. Office of Pers. Mgmt., 587 F.3d 1111, 1114 (Fed. Cir. 2009).

Ms, Rakowsky argues that the evidence clearly shows that her husband intended to provide a survivor annuity for her, even though he did not file an election. According to her, Mr. Rakowsky’s submission of Standard Forms 2808 and 2823 in 1998 and the marriage certificate in 2010, combined with his desire to take care of his family, demonstrates that he intended for Ms. Rakowsky to receive a survivor annuity.

We conclude that substantial evidence supports the Board’s determination that Mr. Rakowsky did not elect a, survivor annuity in a signed writing, as required by statute. The forms Mr. Rakowsky submitted relate to other benefits and do not elect a survivor annuity benefit. See Dorsey, 587 F.3d at 1114 (holding that submission of the Standard Forms 2808 and 2823 did not demonstrate an intent to elect survivor annuity benefits). Accordingly, the forms themselves do not demonstrate an intent to elect survivor annuity benefits. See id.

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587 F.3d 1111 (Federal Circuit, 2009)
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318 F.3d 1127 (Federal Circuit, 2003)
Carole A. Simpson v. Office of Personnel Management
347 F.3d 1361 (Federal Circuit, 2003)
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Taylor v. Office of Personnel Management
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705 F. App'x 986, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rakowsky-v-office-of-personnel-management-cafc-2017.