Cartwright v. Office of Personnel Management, 90-3280

• Decision Date: 07 January 1991
• Docket Number: No. 90-3280,90-3280
• Citation: 925 F.2d 1478
• Parties: Unpublished Disposition NOTICE: Federal Circuit Local Rule 47.8(b) states that opinions and orders which are designated as not citable as precedent shall not be employed or cited as precedent. This does not preclude assertion of issues of claim preclusion, issue preclusion, judicial estoppel, law of the case or the like based on a decision of the Court rendered in a nonprecedential opinion or order. Veda M. CARTWRIGHT, Petitioner, v. OFFICE OF PERSONNEL MANAGEMENT, Respondent.
• Court: U.S. Court of Appeals — Federal Circuit

Page 1478

925 F.2d 1478

Unpublished Disposition

NOTICE: Federal Circuit Local Rule 47.8(b) states that opinions and orders which are designated as not citable as precedent shall not be employed or cited as precedent. This does not preclude assertion of issues of claim preclusion, issue preclusion, judicial estoppel, law of the case or the like based on a decision of the Court rendered in a nonprecedential opinion or order.

Veda M. CARTWRIGHT, Petitioner, v. OFFICE OF PERSONNEL MANAGEMENT, Respondent.

No. 90-3280.

United States Court of Appeals, Federal Circuit.

Jan. 7, 1991.

Before RICH, PAULINE NEWMAN, and PLAGER, Circuit Judges.

DECISION

PER CURIAM.

Petitioner appeals from the October 6, 1989 Initial Decision of the Administrative Judge (AJ), Docket No. SE08318910553, which became the final decision of the Merit Systems Protection Board (MSPB) when the MSPB declined review on February 27, 1990. We affirm.

OPINION

The parties do not dispute that petitioner's deceased husband (decedent), who retired from the Civil Service in 1972, failed to elect to provide a survivor annuity for petitioner within one year from their August 4, 1984 marriage, as required by 5 USC 8339. ¹ The issue presented here is whether respondent provided decedent with adequate notice of the one-year election requirement. Petitioner urges that this case is controlled by Harris v. Office of Personnel Management, 888 F.2d 121 (Fed.Cir.1988), in which we remanded for a determination of the credibility of a petitioner's testimony, after holding that annual notice of survivor benefit election rights is required, and that actual awareness on the part of the annuitant is alone insufficient. Id. at 124.

Such a remand is not necessary here. The AJ found that the decedent was notified of the one-year filing requirement prior to expiration of the applicable one-year period ending August, 1985. In response to petitioner's assertion that she and the decedent received only one notice of the one-year filing requirement, in January, 1986, respondent submitted an affidavit of its Treasury Liaison Officer, Nelson T. Henderson. Mr. Henderson stated therein that all of respondent's mailing lists were generated by a computer, and that proper notice of survivor elections was sent to all annuitants in October 1978, January 1980, August 1981, April 1982, March 1983, March 1984, December 1984, and January 1986. With respect to petitioner's testimony, the AJ found that while it seemed credible on its face, it lacked the specificity and detail necessary to rebut Mr. Henderson's affidavit. For example, petitioner failed to offer an explanation for the delay between decedent's admitted receipt of the January 1986 notice and his first letter to respondent sent in April 1988.

On the basis of Mr. Henderson's affidavit, and petitioner's...