Brush v. Office of Personnel Management
| Decision Date | 31 December 1992 |
| Docket Number | No. 91-3239,91-3239 |
| Citation | 982 F.2d 1554 |
| Parties | Billie BRUSH, Petitioner, v. OFFICE OF PERSONNEL MANAGEMENT, Respondent. |
| Court | U.S. Court of Appeals — Federal Circuit |
William S. Bansford, Neill & Shaw, Washington, DC, argued for petitioner.
Matthew S. Bode, Dept. of Justice, Washington, DC, argued for respondent. With him on the brief were Stuart M. Gerson, David M. Cohen and Terrance S. Hartman, Washington, DC. Of counsel were Jaime Ramon, Thomas F. Moyer and Barbara J. Matthews-Beck, Office of Personnel Management, Washington, DC.
Before MAYER, Circuit Judge, SMITH, Senior Circuit Judge, and MICHEL, Circuit Judge.
Billie R. Brush appeals the initial decision of the Merit Systems Protection Board (MSPB or Board), which became final on 15 February 1991. 1 The Board affirmed the decision of the Office of Personnel Management (OPM) denying Mrs. Brush's application for former spouse survivor annuity benefits. Affirmed-in-part, reversed-in-part, and remanded.
The issue is whether the Board's decision affirming OPM's denial of Mrs. Brush's application for former spouse survivor annuity benefits was arbitrary, capricious, an abuse of discretion or otherwise not in accordance with the law.
Richard E. Brush died on 29 September 1989. Fifteen days later, petitioner, Billie R. Brush applied to OPM for survivor annuity benefits based upon the death of Richard, her former husband. On 3 April 1990 OPM denied Mrs. Brush's application for a survivor annuity as a former spouse of a retiree because the application was post-marked after 7 May 1989, the filing deadline in 5 C.F.R. § 831.622(a)(1) (1989). 2 Mrs. Brush requested that OPM reconsider its initial decision. On 29 May 1990, OPM denied her request stating that she did not meet the requirements for a survivor annuity as set forth in 5 C.F.R. § 831.622(a)(1). In addition, OPM found that Mrs. Brush was not entitled to a survivor annuity as the "widow" of Richard Brush under 5 U.S.C. § 8341(b)(1) (1988).
Mrs. Brush appealed OPM's decision to the Merit Systems Protection Board. On 22 October 1990, an Administrative Judge (AJ) issued the initial decision of the Board. The AJ affirmed OPM's decision with respect to Mrs. Brush's failure to meet the requirements as set forth in the regulations cited by OPM. The AJ also found that Mrs. Brush was not otherwise entitled to an annuity because she did not meet the definition of a widow in 5 U.S.C. § 8341(a)(1) (1988); and because Richard Brush had not made the specific election required by regulations in order for Mrs. Brush to receive a former spouse survivor annuity. 3 Mrs. Brush filed a petition for review before the full Board which was denied, and the initial decision became final on 15 February 1991. She then appealed to the United States Court of Appeals for the Federal Circuit.
Billie R. Brush married Richard E. Brush on 24 November 1967. On 21 August 1984 Richard E. Brush submitted an application for immediate retirement from his position with the United States Department of Agriculture. Richard and Mrs. Brush were still married at the time of Richard's retirement. On his retirement forms, Richard elected to receive a reduced annuity in order to provide an annuity to Mrs. Brush if she survived him. His retirement became effective on 16 September 1984.
On 17 November 1987, the Brushes divorced. The divorce decree made no mention of the survivor annuity or retirement benefits, and the couple did not have any children. Richard made no changes in regard to his reduced annuity following the divorce, and he continued to receive a reduced annuity until his death almost two years after the divorce. Richard Brush died on 29 September 1989 as a result of injuries sustained in an airplane crash. On 14 October 1989 Mrs. Brush filed for survivor annuity benefits based upon the death of her former husband. Her application was subsequently denied.
The United States Court of Appeals for the Federal Circuit performs a limited review of decisions of the MSPB. The Board's decision must be affirmed unless it is found to be:
(1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law;
(2) obtained without procedures required by law, rule, or regulation having been followed; or (3) unsupported by substantial evidence. 4
The Board examined three potential avenues through which Mrs. Brush might have been entitled to an annuity. The Board found that she had failed to meet any of the three. It is important to note that the sections of the U.S.C. and the C.F.R. upon which the Board based its decision are entitling in nature. Failure to meet the requirements of one section does not necessarily preclude an applicant from meeting the requirements of another section.
First, the board found that Mrs. Brush failed to qualify as the widow of Richard Brush as set forth in 5 U.S.C. § 8341. Section 8341(b)(1) states that if an employee dies after retiring and is survived by a widow or widower, the widow or widower is entitled to an annuity. 5 Section 8341(a)(1) defines "widow" as the surviving wife of an employee who:
(A) was married to him for at least 9 months immediately before his death; or
(B) is the mother of issue by that marriage. 6
Richard and Mrs. Brush were not married for the nine months immediately preceding Richard's death; they divorced on 17 November 1987 and he died on 29 September 1989. Also, there were no issue of the Brush marriage. Hence, by statutory definition, Mrs. Brush could not qualify as Richard's widow, and indeed did not argue in her brief that she was. The Board is affirmed with respect to its determination that Mrs. Brush was not the surviving widow of Richard Brush.
Second, the Board found, as had OPM, that Mrs. Brush did not meet the five criteria set forth in the regulations for a former spouse survivor annuity. 7 That section states that a former spouse of an employee who retired before 7 May 1985 is entitled to an annuity if: (1) the former spouse's marriage to the employee ended after 14 September 1978 and before 8 May 1987; (2) they were married for at least ten years during periods of the retiree's creditable service; (3) the former spouse has not remarried before age fifty-five; (4) the former spouse files an application for the survivor annuity on or before 7 May 1989; and (5) the former spouse is at least fifty years of age on or before 7 May 1987. 8 This section of the regulations is phrased as a provision that, if met in its entirety, would grant Mrs. Brush a survivor annuity. The regulation states that "[t]he former spouse of a retiree who retired before May 7, 1985 ... is entitled, after the death of the retiree ..." 9 to a survivor annuity if all five requirements are met. This language does not act to deny Mrs. Brush any right conferred on her; it is a possible entitling provision. When she applied for the annuity, Mrs. Brush was a former spouse of a retiree who retired before May 7, 1985; Richard Brush retired on 16 September 1984. However, Mrs. Brush did not and could not meet all five of the requirements: she could not file an application before 7 May 1989 (prior to Richard's death), she was not at least fifty on 7 May 1987, and the Brush's divorced after 8 May 1987. The Board is affirmed with respect to its decision that Mrs. Brush did not qualify for a former spouse survivor annuity under 5 C.F.R. § 831.622(a)(1).
Third, the Board found that Richard Brush had not made a written election to provide a former spouse survivor annuity as required by the regulations. 10 As applied to this case, that section states that Richard Brush had two years after the date that he and Mrs. Brush were divorced to elect, in writing, a former spouse survivor annuity for Mrs. Brush. He did not make the prescribed election during that period, in writing, and died two months before the two year period ended.
On appeal, Mrs. Brush argues that the election that Richard Brush did make was irrevocable at the time he made the election and that neither the divorce nor subsequent amendments to the law should act to defeat that election. She also maintains that OPM did not notify her former husband of his election rights, and, as a consequence, the election time limit should be waived and OPM should give effect to Richard's intent that Mrs. Brush receive the annuity. OPM maintains that a strict reading of the regulation is required; since Richard Brush did not elect for the annuity in question in writing during the two year period, Mrs. Brush is not entitled to receive it. Also, OPM steadfastly argues that neither statute nor regulation requires OPM to notify retirees of the opportunity to elect former spouse survivor benefits.
With regard to Mrs. Brush's argument that the election is irrevocable, we are not persuaded. 11 Subsequent amendments 12 enacted by Congress are given an effective date, and one needs only to look at the statute for Congress' expressed intent as to when an amendment applies. However, Mrs. Brush has correctly interpreted 5 C.F.R. § 831.601(e) (1984) and its effect on her situation; the effect of the divorce on the annuity is governed by the law in effect at the time of the divorce. 13 The election, as stated in 5 C.F.R. § 831.601(e) (1984), may be changed only as specified in 5 U.S.C. §§ 8339(j) and (k). In essence, the election may be changed in accord with the intent of Congress as stated in its amendments to sections 8339(j) and (k). In 1987, at the time of the divorce, the Spouse Equity Act was the law and does apply to her. However, for the reasons that follow, we are unable to agree with OPM's assertions regarding notice or the Board's holding with respect to the election requirements of 5 C.F.R. § 831.612(a)(2).
C.F.R. v. U.S.C.
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