Jones v. U.S., 79-1083
| Decision Date | 21 May 1982 |
| Docket Number | No. 79-1083,79-1083 |
| Citation | 680 F.2d 1138 |
| Parties | Roxie P. JONES, Plaintiff-Appellant, v. UNITED STATES of America, Civil Service Commission, Defendant-Appellee. |
| Court | U.S. Court of Appeals — Seventh Circuit |
R. Stephens Morrison, Chicago, Ill., for plaintiff-appellant.
Canella E. Henrichs, Asst. U. S. Atty., Frederick H. Branding, Asst. U. S. Atty., Chief, Civ. Div., Dan K. Webb, U. S. Atty., Chicago, Ill., for defendant-appellee.
Before SWYGERT and FAIRCHILD, Senior Circuit Judges, and SPRECHER, Circuit Judge. *
Plaintiff sued the United States for payment of Civil Service Retirement benefits. On cross motions for summary judgment, the district court entered judgment for the United States. Plaintiff appealed. We reverse.
Roy Jones, deceased husband of plaintiff, was an employee of the Postal Service and on September 16, 1966, applied for retirement. Roy Jones and Roxie Jones were married October 6, 1966. Roy Jones' retirement became effective the following day, October 7, 1966. After Roy Jones died in 1974, plaintiff filed a claim with the Civil Service Commission for a survivor's annuity. Her claim was rejected by the Bureau of Retirement, Insurance and Occupational Health, and, on appeal, by the Appeals Review Board. The denial was upheld by the district court.
The controlling statute in this case is 5 U.S.C. § 8341(b) which, at the time of Roy Jones' retirement, provided in pertinent part:
If an employee or Member dies after having retired under this subchapter and is survived by a spouse to whom he was married at the time of retirement, the spouse is entitled to an annuity ... unless the employee or Member has notified the Commission in writing at the time of retirement that he does not desire his spouse to receive this annuity. The annuity of the spouse commences on the day after the retired employee or Member dies. 1
Plaintiff Roxie Jones was married to Roy "at the time of retirement" and was thus entitled to an annuity after his death unless Roy, at the time of retirement, notified the Commission in writing that he did not desire her to receive the annuity. Roy gave no express written notice in terms of the statute. The Government's defense is, in substance, that there was constructive or implied notice sufficient under the circumstances. The district court agreed.
The applicable Regulation permitted an employee to file his application for an annuity "within 30 days before, on, or at any time after he reaches the requisite retirement age." 5 C.F.R. § 831.501, (revised as of January 1, 1964). Jones applied some three weeks before retirement. He was then unmarried. There is nothing to show whether at the date of application he had already planned his marriage. Neither does it appear that his employer or the Commission knew until after his death that he did marry on October 6 and was "married at the time of retirement."
The Civil Service Commission had created Standard Form No. 2801 to enable a government worker to apply for retirement. The only portion of the form (reproduced as an Appendix to this opinion) which calls for the choice regarding survivor's annuity provided by 5 U.S.C. § 8341(b) is labeled Part 1 of F. reads in part: "If you are married, you will receive this type of annuity (Annuity with survivor benefit to widow or widower, a reduced annuity for the employee) unless you choose the annuity in F.2." Part 2 of F. has a space for initialling a statement using the terms prescribed by § 8341(b), "(I do not desire my wife (or husband) to receive a survivor annuity benefit after my death.)"
The portion in which Roy Jones placed his initials is labeled G. provided a choice between 1., "Annuity Without Survivor Benefit," and 2. "Annuity With Survivor Benefit To Named Person Having An Insurable Interest." Jones initialed 1. Plaintiff had no insurable interest at that date. Thus his failure to initial G.2., naming her, should not be deemed an election to exclude her if she became his spouse.
The form contains no provision for indicating the intent, as to a possible spouse's survivor benefits, of an unmarried applicant who applies before retirement.
Where a spouse is entitled to a survivorship annuity, the annuity paid the retired employee is smaller. Jones received unreduced retirement benefits until his death in 1974. Thus he received what he should have received if he had given the appropriate written notice.
The Government points out that Jones could have delayed in applying until after his marriage, and argues that by making his application before marriage he rejected survivor benefits for a spouse. The Regulations would have permitted him to change his choice of option before final adjudication of his claim, a period of about two months. 5 C.F.R. § 831.601. The Government argues that his failure to do so constituted notice to the Commission that he did not desire to provide a survivor benefit to his wife. The district court agreed. As already stated, Jones accepted a greater annuity than he would have been entitled to if his wife were deemed entitled to a survivor's annuity.
It is true that Jones could have done...
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Gilman v. Office of Personnel Management, 84-764
...retired, and that the public policy against cutting off rights to retirement by a surviving spouse as set forth in Jones v. United States, 680 F.2d 1138 (7th Cir.1982), On the first ground, the MSPB found no evidence in the record to indicate that the "election was founded on negligence or ......