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Dorsey v. Office of Personnel Management

November 25, 2009

ALICE A. DORSEY, PETITIONER,
v.
OFFICE OF PERSONNEL MANAGEMENT, RESPONDENT.



Petition for review of the Merit Systems Protection Board in PH0831080541-I-1.

The opinion of the court was delivered by: Prost, Circuit Judge

Published opinion

Before NEWMAN, MAYER, and PROST, Circuit Judges.

Opinion for the court filed by Circuit Judge PROST. Dissenting opinion filed by Circuit Judge NEWMAN.

Ms. Alice Dorsey appeals the October 8, 2008 decision of the Merit Systems Protection Board ("Board") affirming the Office of Personnel Management's ("OPM's") denial of her request for a survivor annuity benefit based on the federal service of her late spouse, Mr. James C. Blood. Because the Board's determination that Mr. Blood failed to elect a survivor annuity benefit during the two-year window provided for by statute is supported by substantial evidence, we affirm.

I. BACKGROUND

Mr. Blood retired from federal service on June 30, 1991. At that time, he was not married and did not elect either a survivor annuity benefit or life insurance coverage under the Federal Employees' Group Life Insurance ("FEGLI") Program. On October 25, 2002, Mr. Blood married Ms. Alice Dorsey. About a year later, Mr. Blood received from OPM Standard Forms 2808 and 2823, both of which he filled out and returned. These forms designated Ms. Dorsey as Mr. Blood's beneficiary under both the Civil Service Retirement System and FEGLI.

Mr. Blood passed away on February 2, 2008, and in March of that year Ms. Dorsey filed a request with OPM for a survivor annuity benefit. OPM denied the request, however, because Mr. Blood did not elect to provide a survivor annuity benefit for Ms. Dorsey within two years of their marriage. On appeal, the Board concluded that the record supported the agency's conclusions that OPM satisfied its obligation to notify Mr. Blood of his right to elect a survivor annuity and that Mr. Blood did not make an election. Accordingly, it affirmed the agency's decision. Ms. Dorsey filed a timely appeal in this court. We have jurisdiction under 28 U.S.C. § 1295(a)(9).

II. DISCUSSION

Our review of a decision of the Board is strictly limited by statute. Under 5 U.S.C. § 7703(c), we must affirm the Board's decision in this case unless it 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." The Board's decision is supported by substantial evidence "if it is supported by such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Brewer v. U.S. Postal Serv., 647 F.2d 1093, 1096 (Ct. Cl. 1981) (quotation marks omitted).

A federal employee who is unmarried at the time he retires but later marries has the right to irrevocably elect to provide a survivor annuity for his spouse. 5 U.S.C. § 8339(k)(2)(A). In order to exercise this right, the employee must submit to OPM a signed writing showing his intent to provide a survivor annuity within two years of the date of marriage. Id. No particular form is required; any signed writing that manifests the annuitant's intent to make an election will suffice. Harris v. Office of Pers. Mgmt., 985 F.2d 549, 550 (Fed. Cir. 1993).

Ms. Dorsey raises several arguments on appeal. First, she argues that the evidence clearly shows that Mr. Blood intended to provide a survivor annuity for her, even though he did not file an election. According to Ms. Dorsey, Mr. Blood's submission of Standard Forms 2808 and 2823, combined with his desire to take care of his family, demonstrates that he intended for Ms. Dorsey to receive a survivor annuity.

We conclude that substantial evidence supports the Board's determination that Mr. Blood did not elect to provide a survivor annuity for Ms. Dorsey, as required by statute. The forms submitted by Mr. Blood relate to other benefits and do not elect a survivor annuity benefit. Standard Form 2808 provides for the designation of a beneficiary to receive a lump-sum benefit under the Civil Service Retirement System, and specifically states that "[t]his Designation of Beneficiary form is used to designate who is to receive a lump-sum payment which may become payable after your death. It does not affect the right of any person who is eligible for survivor annuity benefits. Do not confuse this form with designation forms used for other types of benefits . . . . "

Standard Form 2823 provides for the designation of a beneficiary under the Federal Employees' Group Life Insurance program. The form repeatedly refers to "the Insured" and asks the person filling out the form whether he is the "Insured" or an "Assignee." Thus, even if Mr. Blood erroneously believed that the forms he submitted would provide a survivor annuity for Ms. ...


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