NOTE: Pursuant to Fed. Cir. R. 47.6, this disposition
is not citable as precedent. It is a public record.
United States Court of Appeals for the Federal Circuit
05-3295
BRENDA ELLEN ALDRICH,
Petitioner,
v.
OFFICE OF PERSONNEL MANAGEMENT,
Respondent.
___________________________
DECIDED: January 11, 2006
___________________________
Before RADER, BRYSON, and LINN, Circuit Judges.
RADER, Circuit Judge.
The Merit Systems Protection Board (the Board) affirmed the Office of Personnel
Management’s (OPMs) denial of Brenda E. Aldrich’s application for Civil Service
Retirement System (CSRS) survivor benefits. Because the Board did not err when it
concluded that Ms. Aldrich’s pre-May 7, 1985 divorce date made her ineligible for
survivor benefits, this court affirms.
BACKGROUND
Ms. Aldrich divorced Richard Atomanuk by order of a Vermont court dated
April 28, 1983. At the time of his death in 1999, Mr. Atomanuk was an employee of the
Postal Service. After his death, Ms. Aldrich applied for CSRS survivor benefits. OPM
denied those benefits and Ms. Aldrich appealed that denial to the Board. Before the
Board, Ms. Aldrich argued that she was entitled to survivor benefits by virtue of an
amended court order dated October 1, 1987, which required Mr. Atomanuk to pay child
support. The Board rejected that argument because Ms. Aldrich and Mr. Atomanuk
divorced prior to May 7, 1985, and the relevant rule extends survivor benefits, where
those benefits are provided by court order, only in the case of marriages that ended on
or after May 7, 1985. Ms. Aldrich appeals.
DISCUSSION
This court possesses limited authority to review a Board decision. The Board’s
decision must be affirmed unless it is: (1) arbitrary, capricious, an abuse of discretion,
or otherwise not in accordance with the 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) (2000); Kievenaar v. Office of Pers. Mgmt., 421 F.3d
1359, 1362 (Fed. Cir. 2005). Issues of statutory and regulatory construction are
reviewed without deference. Kievenaar, 421 F.3d at 1362 (citing Billings v. United
States, 322 F.3d 1328, 1332 (Fed.Cir.2003)).
Prior to enactment of the Spouse Equity Act of 1984, Pub. L. No. 98-615, 98 Stat.
3195 (codified as various amended sections throughout 5 U.S.C.), a former spouse had
no right to survivor benefits under the CSRS. See Vallee v. Office of Pers. Mgmt., 58
F.3d 613, 614-15 (Fed. Cir. 1995). Effective May 7, 1985, the Spouse Equity Act
provided entitlement to a survivor annuity to the extent “expressly provided for . . . in the
terms of any decree of divorce or annulment or any court order or court-approved
property settlement agreement incident to such decree.” 5 U.S.C. § 8341 (h)(1) (2000).
5 C.F.R. § 838.802(a) implements the effective date of the Spouse Equity Act where
05-3295 2
benefits are sought based on court order in connection with a divorce, i.e., the basis for
Ms. Aldrich’s claim. That OPM regulation states:
A court order awarding a former spouse survivor annuity
under CSRS is not a court order acceptable for processing
unless the marriage terminated on or after May 7, 1985.
5 C.F.R. § 838.802(a) (2005) (emphasis added). The Board based its decision affirming
OPM in this case on that rule.
Notwithstanding 5 C.F.R. § 838.802(a), Ms. Aldrich argues that the Board erred
because it ignored Vallee, in which provisions of the Spouse Equity Act were held to
apply to a CSRS retiree whose divorce occurred prior to May 7, 1985. Vallee, 58 F.3d
at 614. In Vallee, this court explained that a retiree must be given notice of his ability to
provide a survivor annuity to a former spouse. Vallee at 615. Thus, Vallee did not
address a situation where a former spouse sought benefits as a result of a divorce-
related court order. Instead, Vallee concerned the notice that must be given to a retiree
regarding his ability to confer benefits to a former spouse regardless of when the
marriage ended. In this case, had Mr. Atomanuk retired before his death, he
presumably would have been advised of that option. Contrary to Ms. Aldrich’s
arguments, Vallee is not relevant to her situation because her situation does not involve
a retiree who may have intended to provide a survivor annuity to a former spouse. Mr.
Atomanuk was never a retiree. Instead, Ms. Aldrich’s situation fits squarely within 5
C.F.R. 838.802(a): she is attempting to obtain survivor benefits by virtue of a divorce-
related court order. Because Ms. Aldrich’s divorce occurred prior to May 7, 1985, the
effective date of the Spouse Equity Act, there is no statutory basis for awarding her
survivor benefits. The fact that Mr. Atomanuk could have provided a survivor annuity to
05-3295 3
Ms. Aldrich had he retired before he died does not have any bearing on Ms. Aldrich’s
claim. The Board did not err in its application of 5 C.F.R. § 838.802(a) in this case.
Therefore, this court affirms.
05-3295 4