Before Plager, Circuit Judge, Friedman, Senior Circuit Judge, and Lourie, Circuit Judge.
The opinion of the court was delivered by: Friedman, Senior Circuit Judge.
Appealed from: Merit Systems Protection Board
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 Myrtice Schoemakers was not entitled to a survivor's annuity because her husband had not applied for such annuity within two years of his marriage to her, as the governing statute required. We affirm.
When Conrad Schoemakers retired as a federal employee in 1981, he was unmarried. In October 1990 he married the appellant.
More than four years later, in June 1995, Mr. Schoemakers filed with OPM a request for a survivor's annuity for the appellant, which would have reduced his own retirement annuity. In its initial and reconsideration decisions, OPM denied the request. OPM ruled that Mr. Schoemakers' failure to make the request within two years of his marriage, as the governing statute required, precluded the award of a surviving spouse's annuity. It rejected his request to waive the two-year requirement on the grounds that he did not know about that limitation until the period had expired and had filed his application as soon as he became aware of the requirement. It so ruled because within the two-year period it twice had sent him notice of the requirement.
After extensive administrative proceedings - an initial decision by the administrative Judge, the full Board's vacation of that decision and remand for further proceedings, and the administrative Judge's second initial decision, which became final when the Board denied review of it - the Board affirmed OPM's reconsideration decision. The Board held that it was "more likely than not that the required notices [of his right to seek an annuity for his spouse] were, in fact, delivered to Mr. Schoemakers," and therefore, he was not entitled to a waiver of the two-year filing requirement on the ground that OPM did not so notify him. The Board also rejected the claim that Mr. Schoemakers' mental condition - which "appears to have interfered with his ability to read and understand the OPM notices that he received" - justified a waiver of the two-year period. It pointed out that "[t]he statute and regulation at issue . . . make no provision for the waiver of the deadline for the mental incompetency of the annuitant."
During the Board proceedings, Mr. Schoemakers died, and the Board substituted his widow as the appellant.
The governing statute provides:
"An employee . . . 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['s] . . . spouse and who later marries, may irrevocably elect, in a signed writing received in the Office within two years after such employee . . . marries . . . [such] a reduction in the retired employee['s] . . . current annuity [and thereby provide a survivor's annuity for the spouse]." 5 U.S.C. § 8339(k)(2)(A) (1988).
Under this provision, Mr. Schoemakers' election of a reduced annuity was untimely. The issue is whether this untimeliness may be excused.
A. Another statutory provision states:
"The Director of the Office of Personnel Management shall, on an annual basis, inform each annuitant of such annuitant's rights of election under sections 8339(j) and 8339(k)(2) of title 5, United States Code." Pub. L. No. 95-317, 92 Stat. 382 (1978), as amended by Reorganization Plan No. 2 of 1978, ...