Banks v. Office of Personnel Management , 468 F. App'x 970 ( 2012 )

NOTE: This disposition is nonprecedential
United States Court of Appeals
for the Federal Circuit
__________________________
CAROL L. BANKS,
Petitioner,
v.
OFFICE OF PERSONNEL MANAGEMENT,
Respondent.
__________________________
2011-3203
__________________________
Petition for review of the Merit Systems Protection
Board in case no. CH0841100976-I-1.
__________________________
Decided: February 14, 2012
__________________________
CAROL L. BANKS, Country Club Hills, Illinois, pro se.
MATTHEW F. SCARLATO, Trial Attorney, Commercial
Litigation Branch, Civil Division, United States Depart-
ment of Justice, of Washington, DC, for respondent. With
him on the brief were TONY WEST, Assistant Attorney
General, JEANNE E. DAVIDSON, Director, and KIRK T.
MANHARDT, Assistant Director.
__________________________
BANKS v. OPM 2
Before LINN, CLEVENGER, and REYNA, Circuit Judges.
PER CURIAM.
Carol L. Banks appeals the decision of the Merit Sys-
tems Protection Board (“Board”) affirming the Office of
Personnel Management’s (“OPM”) denial of her request
for a survivor annuity. Banks v. Office of Pers. Mgmt.,
No. CH0841100976-1-1 (M.S.P.B. November 30, 2010)
(“Initial Decision”), (M.S.P.B. June 14, 2011) (“Final
Order”). This court affirms.
I
Carol and Eugene Banks married in 1983. On April
7, 2001, Eugene, a physician for Hines Veterans Admini-
stration Hospital, filed for disability retirement under the
Federal Employee Retirement System (“FERS”) and
elected a survivor annuity for Ms. Banks. In a letter
dated October 18, 2001, the Office of Personnel Manage-
ment (“OPM”) notified Dr. Banks that his retirement was
approved. The letter further advised Dr. Banks that he
should notify OPM if there was any change in his marital
status. On June 8, 2005, the Bankses divorced, and the
resulting divorce decree made no mention of an annuity
for Ms. Banks.
Ms. Banks testified that at the time of their divorce,
she and Dr. Banks decided she would receive former
spouse annuity. According to Ms. Banks, their attorneys
were aware of the arrangement but failed to reflect the
agreement in the language of the divorce decree. She also
testified that after their divorce, Dr. Banks continued to
receive a reduced annuity because he initially elected a
spousal annuity when he retired and he did not notify
OPM of his divorce. Ms. Banks testified that she and Dr.
Banks maintained an amicable relationship after their
3 BANKS v. OPM
divorce and that Dr. Banks never told her he no longer
wished to provide her with the annuity. Ms. Banks also
testified that Dr. Banks never showed her his mail,
including any OPM notices.
Two of the Banks’ daughters testified that their par-
ents maintained an amicable relationship after the di-
vorce. Although one daughter lived with Dr. Banks,
neither daughter knew of correspondence from OPM
stating a need for Dr. Banks to make an election in order
to provide Ms. Banks with spousal annuity benefits if
their marriage ended. The daughters also testified that
Dr. Banks did not show any intent of discontinuing Ms.
Banks’s spousal annuity benefits. The daughters stated
that their father handled his own finances, and that
neither assisted him with any paperwork.
Cyrus Benson, OPM administrator for printing and
distribution of notices, provided an affidavit stating that
OPM sent Dr. Banks general annual notices in 2005 and
2006 during the two-year period after the divorce. Mr.
Benson’s affidavit provided that general notices regarding
survivor elections were sent in the same manner to all
annuitants in December 2005 and 2006. Exemplaries of
the forms sent to annuitants were attached to the affida-
vit. 1
1 The form provides, in part:
With some exceptions, retirees are eligible to elect
or reelect a reduced annuity to provide a survivor
annuity for a former spouse if they timely submit
an election to OPM 1) within 2 years after the
date the marriage ended by divorce or annulment
or 2) within 2 years after the date another former
spouse loses entitlement to a potential survivor
annuity. Please note that a new survivor annuity
election is required within 2 years after the di-
BANKS v. OPM 4
Dr. Banks died on November 9, 2009. On February
26, 2010, Ms. Banks applied for Dr. Banks’s survivor
annuity benefits. OPM denied Ms. Banks’s application
twice because the divorce decree did not provide for
former spouse annuity benefits and Dr. Banks did not
make an election for Ms. Banks within two years of the
divorce.
On September 1, 2010, Ms. Banks appealed OPM’s
decision to the Merit Systems Protection Board (“Board”).
After weighing the testimony from Ms. Banks and her
daughters and Mr. Benson’s affidavit, the administrative
law judge upheld OPM’s decision to deny Ms. Banks
survivor annuity benefits. The administrative law judge
considered whether Dr. Banks intended to provide a
former spouse annuity for Ms. Banks and found that Dr.
Banks did based on the continued reduced annuity and
Ms. Banks’s and her daughters’ testimony. However, the
administrative law judge cited Dr. Banks’s failure to
make an election despite circumstantial evidence that he
received notices concerning the need to make such an
election. The administrative law judge stated that OPM
established that it was more probable than not that “the
annual notice was sent and what it said.” Initial Decision
at 6. The administrative law judge then addressed Ms.
vorce if you wish to provide a former spouse annu-
ity, even if at retirement you elected to provide a
survivor annuity for that spouse. The law pro-
vides for the continuation of a survivor reduction
made at retirement after divorce if the annuitant
reelects a survivor annuity for the former spouse
within 2 years after the divorce. Continuing the
survivor reduction, by itself, does not demonstrate
an unmistakable intent to make a former spouse
survivor reelection.
(emphasis in original).
5 BANKS v. OPM
Banks’s burden to prove that Dr. Banks did not receive
the annual notices. The administrative law judge found
that Ms. Banks did not present testimony that Dr. Banks
did not receive them, merely that his family was unaware
if he had. Thus, the administrative law judge held that
Ms. Banks did not sustain the burden of proof required to
show OPM failed to meet its duty to notify Dr. Banks and
denied Ms. Banks’s request for survivor annuity benefits.
Ms. Banks filed a petition for review with the Board.
She argued that Dr. Banks did not receive the annual
notices and provided two of Dr. Banks’s direct deposit
slips as evidence. According to Ms. Banks, these deposit
slips showed that the notices were sent to the wrong
address. Although Ms. Banks and the government agreed
that Dr. Banks changed his address on November 27,
2001 to 3819 Streamwood Drive, Hazel Crest, IL 60429,
the parties differed as to Dr. Banks’s actions after this
point. The government provided a printout from its
internal website showing a change of address with an
effective date of March 17, 2005 to 18035 Versailles Lane,
Apartment 102, Hazel Crest, IL 60429. Ms. Banks ar-
gued that Dr. Banks did not submit his new address until
October 28, 2009, when he changed his address to 3621 W
176 Place, Country Club Hills, IL 60478. She cited the
direct deposit slips as evidence of Dr. Bank’s failure to
update his address.
On June 14, 2011, the Board dismissed Ms. Banks’s
appeal. It held that the administrative law judge cor-
rectly found that OPM met its burden of demonstrating it
provided Dr. Banks with sufficient notice. The Board
found that OPM recorded separate addresses for paying
benefits and for sending correspondence and that the
correspondence address was correct. The Board deter-
mined that Ms. Banks did not submit new, previously
BANKS v. OPM 6
unavailable evidence and upheld the administrative law
judge’s decision.
Ms. Banks appealed the Board’s decision to this court.
This court has jurisdiction under 28 U.S.C. § 1295(a)(9).
II
Ms. Banks appeals the decision of the Board finding
(1) that OPM gave adequate notice to Dr. Banks concern-
ing the need to make an election within two years of their
divorce; and (2) that Dr. Banks failed to make an election
for Ms. Banks after their divorce.
A
This court must affirm decisions of the Board unless
the decision is “(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.” 5 U.S.C. § 7703(c). See also An-
thony v. Office of Pers. Mgmt., 58 F.3d 620, 624 (1995);
Cheeseman v. Office of Pers. Mgmt., 791 F.2d 138, 140
(Fed. Cir. 1986).
B
A former spouse may receive benefits absent a court
order or timely election if two conditions are met: the
annuitant did not receive the required annual notice of
his election rights; and “‘there is evidence sufficient to
show that the annuitant intended to provide a survivor
annuity for the former spouse.’” Downing v. Office of
Pers. Mgmt., 619 F.3d 1374, 1377 (Fed. Cir. 2010). (quot-
ing Hernandez v. Office of Pers. Mgmt., 450 F.3d 1332,
7 BANKS v. OPM
1334-35 (Fed. Cir. 2006)). The burden is on OPM to show
that it has complied with the notice requirement by
providing “credible evidence that it is more probable than
not that the annual notice was sent.” Brush v. Office of
Pers. Mgmt., 982 F.2d 1554, 1560-61 (Fed. Cir. 1992); see
also Johnston v. Office of Pers. Mgmt., 413 F.3d 1339,
1342 (Fed. Cir. 2005). Once OPM has met this burden,
the appellant must put forth credible testimony or other
evidence tending to support the contention that the
annuitant did not receive the notice. Brush, 982 F.2d at
1561. In this instance, Ms. Banks asserts that Dr. Banks
never received notice that he had to reelect Ms. Banks for
a survivor annuity within 2 years of their final divorce
decree. OPM bears the burden of showing that it sent the
requisite notice.
Ms. Banks asks this court to find that the Board deci-
sion that Dr. Banks updated his address during the
necessary time period was unsupported by substantial
evidence. She argues that the record before this court
shows that Dr. Banks consistently received his annuity
payments through direct deposit to his financial institu-
tion and thus, Dr. Banks had no reason to confirm his
address with OPM. She contends that the exemplaries of
the notices that OPM was purported to have sent in
December 2005 and December 2006 do not indicate that
Dr. Banks was the intended recipient, or that such notices
were addressed to him, as the copies are mere forms. Ms.
Banks argues that OPM’s own internal website printout
shows that Dr. Banks’s address of 3621 W 176 Place,
Country Club Hills, IL 60478 was added to the database
on February 28, 2008, and not earlier. Ms. Banks also
proffers that the website printout does not evidence a
change of address because no such change is reflected in
the Master Roll printout.
BANKS v. OPM 8
The government counters that the Board’s determina-
tion is supported by substantial evidence; namely, OPM’s
affidavit that general notices were sent to all annuitants
in the relevant years. The government argues that Ms.
Banks misreads the website printout in that the Ver-
sailles Lane address was effective address as of the “Ad-
dress Effective” date, or March 17, 2005, until the “Next
Change” date, February 27, 2008. The government con-
tends that this time period includes the dates that OPM
sent both notices to annuitants, thereby undermining Ms.
Banks’s argument that OPM sent Dr. Banks’s notices to
the wrong address. The government also states that
although Ms. Banks argues that the correct address is not
reflected in the Master Roll printout, it is, in fact, the
data from the website printout that reflects the address
used by OPM for sending notices during the relevant
period. 2
This court has previously held that an affidavit simi-
lar to Mr. Benson’s is alone sufficient to satisfy OPM’s
burden. Schoemakers v. Office of Pers. Mgmt., 180 F.3d
1377, 1381 (Fed. Cir. 1999). Although Ms. Banks is
correct that the exemplary notices OPM submitted were
not specifically addressed to Dr. Banks, the Board relied
upon Mr. Benson’s affidavit to find that Dr. Banks re-
ceived the notices. We find that substantial evidence
supports the Board’s determination that Dr. Banks had
actual notice of the statutory requirements to reelect Ms.
Banks as a beneficiary.
2 The government also argues that Ms. Banks failed
to raise this argument before the Board, and it is there-
fore waived, citing Bosley v. Merit Sys. Prot. Bd., 162 F.3d
665, 668 (Fed. Cir. 1998).
9 BANKS v. OPM
Accordingly, this court affirms the decision of the
Board affirming OPM’s denial of her request for a survi-
vor annuity.
AFFIRMED
Each party shall bear its own costs.