Belanger v. Office of Personnel Management

• Decision Date: 04 August 1993
• Docket Number: No. 92-3302,92-3302
• Citation: 1 F.3d 1223
• Parties: Anna Lou BELANGER, Petitioner, v. OFFICE OF PERSONNEL MANAGEMENT, Respondent.
• Court: U.S. Court of Appeals — Federal Circuit

Page 1223

1 F.3d 1223

Anna Lou BELANGER, Petitioner, v. OFFICE OF PERSONNEL MANAGEMENT, Respondent.

No. 92-3302.

United States Court of Appeals, Federal Circuit.

Aug. 4, 1993.

Steven B. Frank, Frank & Rosen, Seattle, WA, argued for petitioner.

John Warshawsky, Commercial Litigation Branch, Dept. of Justice, Washington, DC, argued for respondent. Stuart M. Gerson, Asst. Atty. Gen., David M. Cohen, Director and Donna C. Maizel, Attorney, Commercial Litigation Branch, Dept. of Justice, Washington, DC, were on the brief for respondent. Of counsel was Sharon Y. Eubanks. Also on the brief were James S. Green, Acting Gen. Counsel and Gail Goldberg, Deputy Asst. Gen. Counsel, Office of Personnel Management, of counsel.

Before PLAGER and RADER, Circuit Judges, and PLUNKETT, District Judge. ^*

PLAGER, Circuit Judge.

Petitioner Anna Lou Belanger (Petitioner) appeals the denial of her claim for a former spouse annuity by Respondent Office of Personnel Management (OPM). On September 20, 1991, the denial was upheld by an administrative judge (AJ) of the Merit Systems Protection Board (MSPB or Board), No. SE0831910415I-1. That decision became the final decision of the MSPB on January 22, 1992, 52 M.S.P.R. 124. 5 C.F.R. Sec. 1201.113(b) (1992). We affirm.

BACKGROUND

A.

This case presents the court with the unfortunate result of less than crystal-clear OPM directives regarding employee benefits. Specifically, this case involves 1) an employee's protracted efforts to secure a survivor annuity for his former spouse, 2) confusing and conflicting advice from the government as to the legal effect of the employee's divorce decree, and finally, 3) confusion wrought by OPM's loose use of the term "annuity" to refer to both retirement annuities and survivor annuities. When the employee finally understood what it was that OPM was trying to communicate, the deadline for making the desired survivor annuity election had passed.

The employee's former spouse argues that this court should give effect to the wishes of the now-deceased employee, rather than to the letter of the OPM regulation. The deference we are required by statute to give to the factual findings of the AJ prevents us from doing so. Nor can we adopt the former spouse's proffered reading of the relevant statute and regulations. Courts must enforce statutory requirements as Congress has written them. See Office of Personnel Management v. Richmond, 496 U.S. 414, 110 S.Ct. 2465, 110 L.Ed.2d 387 (1990) (the Appropriations Clause of the constitution requires that any payment from the Treasury be in accordance with the authorizing statute; equitable estoppel may not be applied to negate a statutory prerequisite for disbursement).

B.

At the outset, it is helpful to do what OPM did not do--to clearly state the difference between a 'retirement annuity' and a 'survivor annuity.' When an eligible and qualified government employee retires, the employee receives certain monthly payments, known as the 'retirement annuity.' A portion of the retirement annuity may be set aside for receipt by a former spouse during the retired employee's remaining years of life. (Of course a current spouse presumably shares in the benefits from the current income provided the employee by the retirement annuity.) After the employee dies, the 'survivor annuity' comes into play. It is that portion of the employee's retirement benefits which may be reserved for monthly disbursement, after the employee's death, to the spouse or former spouse. The establishment of a former spouse's annuity or a survivor's annuity reduces the amount of the employee's retirement annuity, and thus requires either the employee's affirmative election or, in some circumstances, a court order. Having made the semantics clear, we proceed to explain the confusion wrought by loose use of these two similar terms.

Petitioner was the first spouse of Robert Belanger. Their divorce was finalized on March 6, 1985. The divorce decree awarded Petitioner half of Robert's "retirement benefits," ¹ Jt.App. at 33, but a survivor annuity for a former spouse was not amongst the benefits available at that time. However, legislation granting former spouses the right to receive survivor annuities had been enacted by Congress but was not yet effective. Civil Service Retirement Spouse Equity Act, Pub.L. No. 98-615, 98 Stat. 3195 et seq. (1984) (Spouse Equity Act or Act). On March 28, 1985, Robert married his current spouse, Maureen.

Under the terms of the Spouse Equity Act, enacted on November 8, 1984, a divorce decree finalized after the effective date of the Act--May 7, 1985--could award a former The confusion deepened in July of 1989 when Maureen, apparently acting on behalf of Robert pursuant to power of attorney and presumably in recognition of Petitioner's interest, filed his retirement application. She filled out OPM Form 1538 to designate herself rather than Petitioner as the survivor annuitant, even though the form clearly indicated that court orders entered before May 7, 1985, were without legal effect. Jt.App. at 51. Maureen states that she was acting on instruction of a Civilian Personnel Office (CPO) Representative, who told her to "put [her] name and not Anna Lou's [Petitioner's] on the Survivor Election form because Anna Lou would automatically get the survivor benefit (until she died at least) because of the divorce decree and therefore, placing my name on the form would only insure benefits to me later in the event she did die before me." Jt.App. at 88-89.

                spouse survivor annuity rights which OPM would recognize, with no further election required of the employee.  See id. Sec. 2(4)(G), codified as 5 U.S.C. Sec. 8341(h)(1) (1988);  5 C.F.R. Sec. 831.1704(d)(1) (1985).  For decrees entered prior to that date, the government employee was and continued to be required to file a specific, written election in order to grant the former spouse rights to a survivor annuity.  See 5 C.F.R. Sec. 831.605 (1988).  Accordingly, the divorce decree instructed Robert to "cooperate to the fullest extent and to execute and file such instruments as are necessary to make any future annuity or benefits available to this petitioner."   Jt.App. at 36. 2  Although Robert's and Petitioner's divorce decree clearly became final before that date, OPM initially indicated that the divorce decree would be effective in granting Petitioner's interests under the decree. 3  OPM did not distinguish between Robert's retirement annuity, for which the decree had legal effect, and the survivor annuity, for which it did not
                

Robert's application for disability retirement was approved on December 13, 1989, and he received his first retirement annuity payment on June 1, 1990. At that point, OPM regulations provided for thirty days in which to change the designated recipient of the employee's survivor annuity. 5 C.F.R. Sec. 831.609 (1990). After that, the employee's elections became final. 5 C.F.R. 831.611(a) (1990).

In the interim, Petitioner's attorney contacted OPM to insure that Petitioner would receive Robert's survivor annuity. In response to this inquiry, OPM sent Robert a letter dated April 3, 1990, informing him that he needed to file "an Election of Former Spouse Annuity or Combination Current/Former Spouse Annuity, a Spouse's Consent to Survivor Election (OPM Form 1431), and a Designation of Beneficiary, (OPM Form 2823)" in order to give effect to the terms of the divorce decree. Jt.App. at 56. The letter also clearly states that at that time Maureen was the designated survivor annuitant, and that Robert's designation of Petitioner as Civil Service Retirement System beneficiary "does not affect your ... survivor annuity designation[ ]." Id. (emphasis added). The letter then concludes: "The apportionment of your annuity will take effect, as required by the Decree of Dissolution, without any further action from you. We will process the forms requesting the other actions as soon as you complete them and return them to us." Id. (emphasis added). OPM also sent Robert a summary of his benefits, in which Maureen was listed as his designated survivor annuitant. Jt.App. at 58. Subsequently OPM confirmed in writing to both Robert and Petitioner's attorney that the annuity would be apportioned in compliance with the Decree of Dissolution. Jt.App. at 63, 65 (emphasis added).

The sum total of these communications was to leave Robert with the erroneous impression that the Decree of Dissolution would OPM contacted Petitioner's attorney on October 30, 1990, to inform her that Petitioner would not be receiving the survivor annuity, because "[t]he court order is not qualifying for that purpose." The letter referred Petitioner's attorney to 5 C.F.R. Sec. 831.1704(d)(1) (1990), which as stated above sets forth the May 7, 1985 cut-off for self-executing divorce decrees. Jt.App. at 77. Although on November 14, 1990, Robert belatedly sought to change his election to designate Petitioner as his survivor annuitant, Jt.App. at 78, OPM refused to honor the election. Jt.App. at 87. Robert died on November 18, 1990. Petitioner's application for a survivor annuity was twice rejected by OPM, and this appeal ensued.

guarantee Petitioner both the retirement annuity and the survivor annuity. Jt.App. at 74, 76. Thus, Robert did not change his election from Maureen to Petitioner prior to July 1, 1990, the last possible date under the regulations for making such a change.

DISCUSSION

On appeal, Petitioner contends that the MSPB's affirmance of OPM's decision awarding the survivor annuity to Maureen in accordance with Robert's July 1989 election should be reversed on three grounds. First, Petitioner argues that no substantial evidence supports the MSPB's conclusion that Robert knew or should have known that the Decree of Dissolution would not provide Petitioner with the survivor annuity. Second, petitioner argues that OPM's provision of misinformation regarding the effect of the Decree of...