888 F.2d 121 (Fed. Cir. 1989), 89-3147, Harris v. Office of Personnel Management

Docket Nº:89-3147.
Citation:888 F.2d 121
Party Name:Maxine Starr HARRIS, Petitioner, v. OFFICE OF PERSONNEL MANAGEMENT, Respondent.
Case Date:October 13, 1989
Court:United States Courts of Appeals, Court of Appeals for the Federal Circuit

Page 121

888 F.2d 121 (Fed. Cir. 1989)

Maxine Starr HARRIS, Petitioner,



No. 89-3147.

United States Court of Appeals, Federal Circuit

October 13, 1989

Page 122

Michael J. Kator, Kator, Scott & Heller, Chartered, Washington, D.C., argued for petitioner.

Donald E. Kinner, Commercial Litigation Branch, Dept. of Justice, Washington, D.C., argued for respondent. With him on the brief were Stuart E. Schiffer, Acting Asst. Atty. Gen., David M. Cohen, Director and Thomas W. Peterson, Asst. Director. Also on the brief were James M. Strock, General Counsel, Thomas F. Moyer, Asst. General Counsel and Jill Gerstenfield, Office of General Counsel, Office of Personnel Management, of counsel.

Before MARKEY, Chief Judge, COWEN, Senior Circuit Judge, and MICHEL, Circuit Judge.

MARKEY, Chief Judge.

Maxine Starr Harris (Mrs. Harris) appeals a decision of the Merit Systems Protection Board (Board), 39 M.S.P.R. 293 (1988), denying the election of a survivor annuity by Arthur Harris (Mr. Harris). [*] We affirm-in-part, reverse-in-part and remand.


Mr. Harris retired fro federal employment in 1965, electing a reduced retirement annuity to provide a survivor annuity for his first spouse, who died October, 1984. At that time, Mr. Harris did not notify the Office of Personnel Management (OPM) of her death. He continued to receive a reduced annuity. On April 25, 1985, Mr. Harris married appellant, but did not then notify OPM of his remarriage.

In February, 1987, Mr. Harris wrote OPM of his intent to elect a survivor annuity for Mrs. Harris. OPM received the letter on February 21, 1987, almost twenty-two months after his remarriage. On March 4, 1987, OPM requested a copy of his first wife's death certificate and the certificate of his marriage to Mrs. Harris. OPM's letter said an election of survivor benefits could be made within two years of remarriage. In a June 1, 1987 notice of Mr. Harris' increased annuity adjustment based on the death of his first wife, OPM again said the election period was two years.

Current law does provide for a two-year election period. 5 U.S.C. Sec. 8339(j)(1)

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(1988). However, the law applicable to Mrs. Harris' April 25, 1985 marriage, because it was performed before May 7, 1985, required election within one year. 5 U.S.C. Sec. 8339(j)(1) (1982). Accordingly, on June 3...

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