Unpublished Dispositionleona Leon, Petitioner, v. Office of Personnel Management, Respondent, 826 F.2d 1072 (Fed. Cir. 1987)

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U.S. Court of Appeals for the Federal Circuit - 826 F.2d 1072 (Fed. Cir. 1987) July 14, 1987

Before MARKEY, Chief Judge, and RICH and DAVIS, Circuit Judges.

PER CURIAM.


DECISION

The decision of the Merit Systems Protection Board (board), Docket No. NY08318610605, sustaining the Office of Personnel Management's (OPM's) reconsideration decision disallowing Leona Leon's request to cancel her election of a reduced annuity with survivor benefits for her spouse, 5 U.S.C. § 8339(k) (2), is affirmed.

OPINION

Substantial evidence supports the board's finding that Leon timely filed an irrevocable election under section 8339(k) (2). Leon concedes that she had timely mailed such an election. Although it is unclear as to the actual date OPM received the election, this court may not on this record disturb the board's determination that Leon failed to rebut the presumption that OPM received it in the ordinary course of the mail. See Charlson Realty Co. v. United States, 384 F.2d 434 (Ct. Cl. 1968).

We affirm on the basis of the board's opinion because we do not find the decision arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law, or obtained without procedures required by law, rule, or regulation having been followed, or unsupported by substantial evidence. 5 U.S.C. § 7703(c) (1982); see Hayes v. Department of the Navy, 727 F.2d 1535, 1537 (Fed. Cir. 1984).