Frank W. Giese v. Office of Personnel Management

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
05-3229
FRANK W. GIESE,
Petitioner,
v.
OFFICE OF PERSONNEL MANAGEMENT,
Respondent.
___________________________
DECIDED: December 9, 2005
___________________________
Before LOURIE, RADER, and BRYSON, Circuit Judges.
RADER, Circuit Judge.
Barbara A. Giese, substituted for her deceased husband Frank W. Giese,
appeals the April 28, 2005 final order of the Merit Systems Protection Board (Board),
Docket No. CH-0831-04-0122-I-1. The Board affirmed the decision of the Office of
Personnel Management (OPM) that Mr. Giese was not eligible to elect an annuity with
survivor benefits for his spouse under the Civil Service Retirement System (CSRS)
because he delayed such an election. Because the decision of the Board is in
accordance with law and is supported by substantial evidence, this court affirms.

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I.
Mr. Giese retired under CSRS from federal service on March 1, 1977. At
retirement, he elected a reduced annuity to provide his wife, Mary Giese, with survivor
benefits after his death. Mary Giese died in 1982. Mr. Giese’s annuity immediately
returned to its unreduced rate.
Mr. Giese married Barbara Green on November 6, 1993, but he did not take any
formal action regarding the provision of a survivor annuity benefit for his spouse until
May 2003, almost ten years after his marriage. At that time, Mr. Giese saw a column
about survivor benefits after remarriage in Retirement Life, the magazine of the National
Association of Retired Federal Employees (an unofficial organization). At that time Mr.
Giese wrote a letter to the magazine requesting help in obtaining survivor benefits. The
magazine forwarded the letter to OPM. On September 5, 2003, OPM denied Mr.
Giese's election request because he had not filed within two years of his marriage.
After OPM affirmed its initial decision, Mr. Giese appealed to the Board, which
affirmed the OPM decision. The Board stated that Mr. Giese had not filed a survivor
annuity election for his spouse within two years of his marriage. Moreover, OPM
showed that it had provided timely, indeed annual, notice to Mr. Giese advising him of
his right to elect a survivor annuity and of the applicable deadline.
II.
This court must affirm the 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.” 5 U.S.C. § 7703(c) (1998). The statutory limits applying to
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this case are set out in 5 U.S.C. § 8339(k)(2)(A) (2001):
An employee or Member, who is unmarried at the time of retiring under a
provision of law which permits election of a reduced annuity with a survivor
annuity payable to such employee or Member's spouse and who later
marries, may irrevocably elect, in a signed writing received in the Office within
2 years after such employee or Member marries or, if later, within 2 years
after the death or remarriage of any former spouse of such employee or
Member who was entitled to a survivor annuity under section 8341(h) of this
title . . . a reduction in the retired employee or Member's current annuity as
provided in subsection (j) of this section.
Under this statute, an employee unmarried at the time of retirement has two years to
elect a survivor annuity after marrying. Mr. Giese's 2003 request came almost ten
years after his marriage, clearly outside of the two-year statutory filing period.
III.
Mr. Giese also does not fall within the exception to the two-year time limit that
this court recognizes where OPM has not shown that it notified the annuitant of the
annuitant's election rights on an annual basis, as required by Act of July 10, 1978, § 3,
Pub.L. No. 95-317, 92 Stat. 382, amended by Reorganization Plan No. 2 of 1978, §
102, 92 Stat. 3783 (codified as amended at 5 U.S.C. § 8339 note (1994) (“Annual
Notice to Annuitant of Rights of Election Under Subsecs. (j) and (k)(2) of This Section”)).
See Schoemakers v. Office of Pers. Mgmt., 180 F.3d 1377, 1380 (Fed. Cir. 1999). In
this case OPM established through credible evidence that it is more probable than not
that it had provided the annual notice. See Brush v. Office of Pers. Mgmt., 982 F.2d
1554, 1561 (Fed. Cir. 1992). Mr. Giese did not claim that he did not receive the notices.
Accordingly, the record supports the Board's conclusion that Mr. Giese's situation did
not fall within the implied exception to the two-year time limit.
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Mrs. Giese, in an affidavit, asserts that Mr. Giese telephoned OPM shortly after
their marriage to inquire about benefits upon remarriage, and that OPM said “you are
not eligible for survivor annuity.” Mrs. Giese offers no other proof of this call. The
alleged OPM advice would have been ambiguous in any event, because Mrs. Giese
would statutorily not have been eligible for a survivor benefit at that time. See 5 U.S.C.
§ 8339(j)(5)(C)(ii) (“Such election and reduction shall be effective the first day of the
second month after the election is received by the Office, but not less than 9 months
after the date of the remarriage”). This court does not find this evidence sufficient to
overcome the strict time bars of the statute. See Office Pers. Mgmt. v. Richmond, 496
U.S. 414, 428 (1990) (“It is to assure that public funds will be spent according to the
letter of the difficult judgments reached by Congress as to the common good and not
according to the individual favor of Government agents or the individual pleas of
litigants.”).
CONCLUSION
Because the Board properly decided that Mr. Giese did not elect a survivor
annuity within the statutory period, this court affirms.
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