Williams v. Office of Personnel Management

NY-0831-99-0431-I-1 (Merit Sys. Protection Bd. NY Field Office Nov. 22, 1999) ; Clearinghouse Number: 53046

Description

Widow Established by Preponderant Evidence That Decedent Had Not Received Timely Notice of Election Rights for Survivor Annuity Benefits

Abstract

The Merit Systems Protection Board awarded survivor annuity benefits to appellant on the basis of her deceased husband’s service. The husband had elected reduced annuity benefits in order to provide his first wife with survivor benefits should he predecease her. Upon the first wife’s death, Office of Personnel Management eliminated the reduction in the annuity. Decedent married appellant, and, upon his death, appellant filed for survivor annuity benefits. Her request was denied because decedent had not filed a second written election of reduced annuity. Appellant, contending that decedent had never received notice of the time limit for electing a survivor annuity benefit, requested reconsideration; Office of Personnel Management affirmed its original decision, but the Merit Systems Protection Board reversed it. The board noted that when an appellant made a “nonfrivolous assertion” of lack of notice, the burden shifted to Office of Personnel Management to show that it complied with notice requirements. Although Office of Personnel Management offered probative evidence that all annuitants were sent proper notice at relevant times, appellant testified that she received decedent’s mail and maintained household records and never saw notice of the election requirement. She also presented an array of witnesses, all of whom testified that the decedent spoke often of his belief that she would receive his pension in the event of his death. Based on appellant’s credibility and the corroborating testimony, the board found that appellant had supplied preponderant evidence successfully rebutting the evidence presented by Office of Personnel Management.

Additional Information

Attorney Information
Plainitff represented by Gary Stone, Legal Serivces for the Elderly, 130 W. 42nd St., 17th Floor, New York, NY 10036; 212.391.0120
Docket Date
1999-11-22 00:00:00+00:00

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