United States Court of Appeals for the Federal Circuit
05-3364
PATRICIA A. HERNANDEZ,
Petitioner,
v.
OFFICE OF PERSONNEL MANAGEMENT,
Respondent.
Patricia A. Hernandez, of Bonita, California, pro se.
Steven J. Abelson, Attorney, Commercial Litigation Branch, Civil Division, United
States Department of Justice, of Washington, DC, for respondent. With him on the brief
were Peter D. Keisler, Assistant Attorney General; David M. Cohen, Director; and
Franklin E. White, Jr., Assistant Director.
Appealed from: United States Merit Systems Protection Board
United States Court of Appeals for the Federal Circuit
05-3364
PATRICIA A. HERNANDEZ,
Petitioner,
v.
OFFICE OF PERSONNEL MANAGEMENT,
Respondent.
__________________________________________________
NONPRECEDENTIAL DECISION ISSUED: March 10, 2006
PRECEDENTIAL OPINION ISSUED: June 21, 2006
__________________________________________________
Before RADER, Circuit Judge, CLEVENGER, Senior Circuit Judge, and DYK, Circuit
Judge.
DYK, Circuit Judge.
Patricia A. Hernandez (“Ms. Hernandez”) appeals the final decision of the Merit
Systems Protection Board (the “Board”) affirming the decision of the Office of Personnel
Management (“OPM”) denying her request for survivor annuity benefits under the Civil
Service Retirement System (“CSRS”). We affirm.1
BACKGROUND
Ms. Hernandez married Juan Hernandez (“Mr. Hernandez”) on June 18, 1976.
Mr. Hernandez filed for CSRS retirement annuity benefits effective May 1, 1999,
electing reduced annuity payments to provide survivor benefits for his spouse. Mr. and
1
This opinion was originally issued on March 10, 2006, as non-
precedential. The panel has granted the respondent’s Request that the Court’s March
10, 2006, Opinion Be Reissued as Precedential.
Ms. Hernandez divorced on August 17, 2001. The marital separation agreement
(“MSA”) allocated “Retirement benefits from [Mr. Hernandez’s] employment through the
Federal Government . . . TO HUSBAND.” App. at 2.
Mr. Hernandez informed OPM of the divorce and inquired about terminating
surviving spouse benefits by letter dated December 25, 2001. OPM in a letter to Mr.
Hernandez dated February 23, 2002, responded: “If you would like to terminate your
survivor election please forward your divorce decree to [OPM] . . . . Upon receipt of
your divorce decree we should be able to give you the amount of your annuity
recalculation.” App. at 24. On September 16, 2002, Mr. Hernandez informed OPM by
telephone that he had forwarded a copy of the MSA to OPM and that he wanted to
terminate survivor benefits. The record does not disclose whether OPM received the
MSA; Ms. Hernandez alleges that Mr. Hernandez’s annuity was never increased to
reflect termination of the survival election. Annual written notices distributed to all
CSRS annuitants between 1989 and 2003 stated that “retirees are eligible to elect a
reduced annuity to provide a survivor annuity for a former spouse if they send a signed
request to OPM . . . within 2 years after the date the marriage ended by divorce or
annulment . . . .” App. at 6. Mr. Hernandez never explicitly elected former spouse
benefits for his former spouse, Ms. Hernandez. Mr. Hernandez died February 4, 2004.
OPM denied Ms. Hernandez’s request for survivor benefits on June 22, 2004.
Ms. Hernandez appealed to the Board, which affirmed OPM’s determination in an initial
decision issued December 17, 2004. The Board concluded that under
5 C.F.R.
§ 831.632, because they divorced, Mr. Hernandez was required to make an affirmative
election to grant Ms. Hernandez former-spousal survivor benefits; that OPM had
05-3364 2
properly notified Mr. Hernandez of this requirement; that Mr. Hernandez had neither
expressly nor impliedly made such an election; and that Mr. Hernandez did not intend to
afford Ms. Hernandez survivor benefits after the divorce. The Board also found no
provision in the MSA granting Ms. Hernandez survivor annuity benefits. The Board
denied Ms. Hernandez’s petition for review of the initial decision on July 21, 2005.
Ms. Hernandez timely appealed to this court, and we have jurisdiction pursuant
to
28 U.S.C. § 1295(a)(9).
DISCUSSION
We must affirm the Board’s decision unless it was arbitrary, capricious, an abuse
of discretion, or otherwise not in accordance with law; obtained without procedures
required by law, rule or regulation; or unsupported by substantial evidence.
5 U.S.C.
§ 7703(c) (2000); Yates v. Merit Sys. Prot. Bd.,
145 F.3d 1480, 1483 (Fed. Cir. 1998).
Divorce terminates a prior election of spousal survivor benefits.
5 U.S.C.
§ 8339(j)(5)(A) (2000). A former spouse may receive survivor benefits if the CSRS
annuitant makes an affirmative election to grant such benefits.
5 U.S.C. § 8339(j)(3)
(2000). The government must “on an annual basis, inform each annuitant of such
annuitant’s rights of election under section 8339(j).”
5 U.S.C. § 8339 note (2000).
Congress’ enactment of this notice requirement “means that the information must be
correct and not misleading.” Wood v. Office of Pers. Mgmt.,
241 F.3d 1364, 1367 (Fed.
Cir. 2001). A former spouse may receive survivor annuity benefits even without an
affirmative election by the annuitant if (1) the annuitant did not receive the required
notice, and (2) “there [is] evidence sufficient to show that the retiree indeed intended to
05-3364 3
provide a survivor annuity for the former spouse.”
Id. at 1368; Vallee v. Office of Pers.
Mgmt.,
58 F.3d 613, 616 (Fed. Cir. 1995).
In Simpson v. Office of Personnel Management,
347 F.3d 1361, 1365 (Fed. Cir.
2003), we held that notice is insufficient if it does not “stat[e] that a pre-divorce election
automatically terminates upon divorce and that an annuitant must make a new election
to provide a survivor annuity for a former spouse.” The annual notices Mr. Hernandez
received made neither of these statements—rather, they stated that an annuitant is
“eligible to elect” survivor benefits for a former spouse and that the election may be
made by a “signed request to OPM.” The notice here does not make clear that such a
written election is required for survivor benefits to continue after divorce. In Wood, we
also held that notice is insufficient if it does not inform the annuitant “that his continued
receipt of a reduced annuity would not suffice to constitute an election.”
241 F.3d at
1367. No notice was given here to inform Mr. Hernandez that “continued receipt of a
reduced annuity would not suffice to constitute an election.” After receiving the annual
notices Mr. Hernandez, who, we assume, continued to receive the reduced annuity
required to provide survivor benefits, could still have reasonably concluded that his pre-
divorce election remained effective after the divorce, and that no further action was
required to preserve Ms. Hernandez’s survivor benefits. Thus, the notice was
insufficient to inform Mr. Hernandez that, after divorce, a written reelection of survivor
benefits was required. Under Simpson, OPM’s annual notice was legally insufficient.
Nevertheless, the Board’s decision was supported by substantial evidence
despite the inadequacy of the notice. Under Wood, inadequate notice only entitles a
former spouse to benefits if there is sufficient evidence that the annuitant intended the
05-3364 4
former spouse to receive such benefits. Ms. Hernandez asserts that although OPM
never increased Mr. Hernandez’s annuity payments after he requested discontinuance
of survivor benefits, Mr. Hernandez did not contact OPM again regarding his annuity
after the September 16, 2002, telephone call.2 We have held that “an employee’s
continued acceptance of a reduced annuity following divorce, standing alone,
adequately demonstrate[s] that employee’s intent to provide a survivor annuity for the
former spouse,” Wood,
241 F.3d at 1368. Here, however, Mr. Hernandez’s continued
acceptance of a reduced annuity does not stand alone. The Board found that Mr.
Hernandez took affirmative steps to discontinue survival benefits for Ms. Hernandez
after the divorce. Such actions are fundamentally inconsistent with the intent to
continue to provide such benefits. We thus conclude that the Board’s decision to affirm
the denial of survivor benefits is supported by substantial evidence.
CONCLUSION
The Board’s decision is
AFFIRMED.
COSTS
No costs.
2
Mr. Hernandez’s will, executed November 24, 2003, provides in pertinent
part that Mr. Hernandez’s “[OPM] insurance policy shall be distributed to Patricia
Hernandez (per policy survivor benefits).” App. at 27. Ms. Hernandez insists that this
provision is pertinent to Mr. Hernandez’s intent regarding survivor benefits. We agree
with the Board that this provision is irrelevant because it bequeaths an insurance policy
and does not relate to CSRS survivor annuity benefits.
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