United States Court of Appeals for the Federal Circuit
2008-3174
ELPIDIA L. BRAZA,
Petitioner,
v.
OFFICE OF PERSONNEL MANAGEMENT,
Respondent.
Denise W. DeFranco, Finnegan, Henderson, Farabow, Garrett & Dunner, L.L.P.,
of Cambridge, Massachusetts, argued for petitioner. With her on the brief were Mary K.
Ferguson and Nikolas J. Uhlir.
Hillary A. Stern, Senior Trial Attorney, Commercial Litigation Branch, Civil
Division, United States Department of Justice, of Washington, DC, argued for
respondent. On the brief were Jeanne E. Davidson, Director, Kirk T. Manhardt,
Assistant Director, and Carrie A. Dunsmore, Trial Attorney.
Appealed from: Merit Systems Protection Board
United States Court of Appeals for the Federal Circuit
2008-3174
ELPIDIA L. BRAZA,
Petitioner,
v.
OFFICE OF PERSONNEL MANAGEMENT,
Respondent.
Petition for review of the Merit Systems Protection Board in DC0831070165-I-1.
__________________________
DECIDED: March 16, 2010
__________________________
Before MICHEL, Chief Judge, NEWMAN, MAYER, LOURIE, RADER, BRYSON,
GAJARSA, LINN, DYK, PROST, and MOORE, Circuit Judges.
Opinion for the court filed by Circuit Judge PROST, in which Chief Judge MICHEL and
Circuit Judges MAYER, LOURIE, RADER, BRYSON, GAJARSA, LINN, and MOORE
join. Dissenting opinion filed by Circuit Judge DYK, in which Circuit Judge NEWMAN
joins.
PROST, Circuit Judge.
Elpidia L. Braza is the widow of a former government employee who retired
under the Civil Service Retirement System (“CSRS”). In connection with his retirement,
Mr. Braza completed and signed a standard retirement application form. On his form,
Mr. Braza indicated that he elected to receive an annuity payable only during his
lifetime, and did not wish to reduce his annuity to provide a survivor annuity for his
spouse. Such an election can only be made with the consent of the retiree’s spouse.
Shortly before his retirement took effect, Mrs. Braza completed and signed the standard
spousal consent form, consenting to her husband’s survivor annuity election.
Following her husband’s death, Mrs. Braza filed a claim for a survivor annuity as
the spouse of a deceased civil service employee. The Office of Personnel Management
(“OPM”) denied Mrs. Braza’s claim, finding that she waived her entitlement to such
annuity by completing and signing the standard form. Mrs. Braza petitioned for review
before the Merit Systems Protection Board (“MSPB” or “Board”), arguing that the form
bearing her signature did not validly waive her right to an annuity. The Board affirmed
OPM’s decision.
Mrs. Braza appealed to this court, and argument was heard before a panel of
three judges on December 4, 2008. Finding the matter of how to evaluate the validity of
annuity waivers under the CSRS to be of exceptional importance, the court decided sua
sponte to resolve the matter en banc. For the reasons explained below, the en banc
court concludes that Mrs. Braza waived her right to the spousal annuity by completing
and signing the written waiver form. Such written waiver is valid absent fraud, duress,
or mental incompetence, none of which are present here. We therefore affirm the
decision of the MSPB.
BACKGROUND
The Spouse Equity Act of 1984, Pub. L. No. 98-615, 98 Stat. 3195, was enacted
to provide spouses of retired civil service employees with a default entitlement to a
survivor annuity, and to ensure that spouses receive notice of, and consent to, a retiring
employee’s election not to provide for a survivor annuity. The 1984 Act reads, in
relevant part:
2008-3174 2
[I]f an employee . . . dies after having retired under this subchapter and is
survived by a widow or widower, the widow or widower is entitled to an
annuity equal to 55 percent [of the employee’s annuity] . . . unless the right
to a survivor annuity was waived under such section 8339(j)(1) . . . .
Id. § 2(4) (codified at 5 U.S.C. § 8341(b)). Section 8339(j)(1) provides that the
retirement annuity of an employee who is married at the time he retires will be
automatically reduced during his lifetime to take into account the cost of providing a
survivor annuity for the spouse “unless the employee . . . and the spouse jointly waive
the spouse’s right to a survivor annuity in a written election filed with [OPM] at the time
that the employee . . . retires.” 5 U.S.C. § 8339(j)(1).
To provide for the “written election filed with [OPM]” jointly waiving the spouse’s
annuity, OPM has issued a set of standard forms for employees and their spouses to
complete and submit in connection with their annuity election. Mr. and Mrs. Braza
completed and signed the version of these forms in effect at the time of his retirement,
denominated “Revised January 1990.”
One such form is Standard Form (SF) 2801, entitled “Application for Immediate
Retirement.” The section of the form providing for an annuity election states: “If you are
married at retirement, the law provides an annuity with full survivor benefits for your
spouse unless your spouse consents to your election not to provide maximum survivor
benefits.” The form provides check boxes next to options for a full annuity, a reduced
annuity, and no annuity. Mr. Braza initialed the option providing, “I CHOOSE AN
ANNUITY PAYABLE ONLY DURING MY LIFETIME.” Next to the option elected by Mr.
Braza are instructions to attach an SF 2801-2 showing spousal consent to the election.
The form further explains: “If you are married at retirement, you cannot choose this type
2008-3174 3
of annuity without your spouse’s consent. No survivor annuity will be paid to your
spouse after your death if he or she consents to this election.”
The next form is SF 2801-2, entitled “Spouse’s Consent to Survivor Election.”
The top part of the form is completed by the retiring employee. Mr. Braza filled in his
name and selected the third of three options presented, which reads: “No regular or
insurable interest survivor annuity for my current spouse.” Mrs. Braza then signed the
middle part of the form, to be completed by the spouse, beneath the statement: “I freely
consent to the survivor annuity election described in Part 1. I understand that my
consent is final (not revocable).” The form then provides space for notarization. The
Brazas’ form was notarized.
Under the notary block are three short paragraphs of information, the first of
which reads, “General Information: Public Law 98-615 requires that a retiring, married
employee whose annuity begins on or after May 7, 1985, must elect to provide a full
survivor annuity for a current spouse, unless the current spouse consents to some other
election by signing this form.”
An additional form called “Attachment to SF 2801-2” deals with health coverage.
This form is completed only by the spouse and notary. The form contains two
statements, followed by a signature block. The statements read:
I have freely consented to the survivor annuity election described on the
attached SF 2801-2, Spouses Consent to Survivor Election.
I understand that I will be ineligible to continue coverage under the
Federal Employees Health Benefits (FEHB) Program if my spouse dies
because I have consented to his/her election to provide no survivor
annuity.
Mrs. Braza completed and signed this attachment as well, and it was also notarized.
2008-3174 4
The circumstances under which Mrs. Braza signed the waiver forms are
undisputed, and based on Mrs. Braza’s recollection of the events. Mr. Braza handled all
of the family’s financial affairs. Mrs. Braza did not know what bills came in, what bank
accounts Mr. Braza had, what his earnings were, or what credit cards he possessed.
On December 20, 2002, Mr. and Mrs. Braza went to a local bank while they were
running errands. Mr. Braza presented his wife with form SF 2801-2 and the attachment
and requested her signature before a notary public at the bank. Mrs. Braza had not
seen these forms before. Neither the notary nor Mr. Braza explained the form to Mrs.
Braza, and she did not ask for any explanation. She did not read the form before
signing it. Mrs. Braza explains that she signed the form because she trusted her
husband. The administrative judge adjudicating the case for the Board found credible
Mrs. Braza’s recount of the events and her allegation that she was not aware of her
right to a CSRS survivor annuity and did not understand the effect on that right of
signing the waiver.
The administrative judge explained that although he believed Mrs. Braza’s
allegations, he was compelled to follow controlling Board precedent in Steele v. Office
of Personnel Management, 57 M.S.P.R. 458 (1993). The administrative judge in Steele
found that a spouse who signed an OPM consent form indicating a reduced survivor
annuity did not understand the consequences of signing the spousal consent form. The
Board concluded, however, that the spouse’s “freely made choice” when she signed the
form was not “voidable” based on her unilateral mistake. Steele, 57 M.S.P.R. at 464
(citing Office of Personnel Management v. Richmond, 496 U.S. 414, 428-30 (1990) for
the proposition that a government employee is not entitled to benefits if his eligibility for
2008-3174 5
those benefits was lost due to his reliance on mistaken advice). The Board in Mrs.
Braza’s case thus concluded that Mrs. Braza’s lack of appreciation for her rights or for
the effect of signing the form did not invalidate the waiver of her entitlement to annuity
benefits.
Mrs. Braza timely appealed to this court. We have jurisdiction under 28 U.S.C.
§ 1295(a)(9). The controlling standard of review requires this court to set aside a
decision of the MSPB only if 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.” 5
U.S.C. § 7703(c).
DISCUSSION
Under this court’s precedent, the voluntary signing of a government form for the
purpose of evidencing agreement with the terms of the form is binding, and the
government is entitled to rely on the act of signing absent a showing of fraud, duress, or
mental incompetence. Collins v. Office of Pers. Mgmt., 45 F.3d 1569, 1573 (Fed. Cir.
1995).
Mrs. Braza does not deny on appeal that she consented to her husband’s
election to provide her no survivor annuity. She contends, however, that her consent is
not a valid waiver of her statutory right to an annuity as required by the statute. Mrs.
Braza raises two main arguments in support of this contention. First, she argues that
the form was insufficient to provide adequate notice of her statutory right and of the
effect on that right of signing the form, and therefore is not evidence of a waiver.
Second, she argues that the circumstances under which she signed the form are
2008-3174 6
inconsistent with finding a knowing waiver of a known right, and that the waiver is thus
invalid under Supreme Court precedent. We address each argument in turn.
With respect to the adequacy of the notice, we hold that the OPM Spousal
Consent to Survivor Election form in use at the time of Mr. Braza’s retirement was
sufficient to inform a reader of his or her statutory rights as a spouse and was sufficient
to inform him or her of the effect on those rights of signing the form. The form clearly
states that the law requires an employee to provide a full survivor annuity for a current
spouse. The form states that this annuity will be waived only if the spouse so consents.
The form states that “signing this form” constitutes consent to the annuity election. Mr.
Braza’s election of no survivor annuity is clearly marked in the top section of the form.
The attachment to the form reiterates the effect of the form in alternate, and also clear,
language. The attachment confirms that the spouse freely consented to the election on
the form. It states that the spouse will not receive health benefits after the employee
dies because the spouse has consented to the employee election to provide no survivor
annuity. The words “no survivor annuity” are the last words before the signature line.
Although the form does not use the words “statutory right,” as Mrs. Braza
contends it should, it cites the relevant statute by number and accurately refers to the
statute as “Public Law.” Similarly, although the form uses words like “elect” and
“consent” instead of “right” and “waiver,” the language of the form nonetheless conveys
the meaning of the statute. It does so by stating the mandatory nature of the
requirement for an employee to provide a full survivor annuity, that electing no survivor
annuity is conditioned on the consent of the spouse, and the legal effect of consenting
2008-3174 7
to that election by signing the form. The statute itself describes a valid joint waiver as “a
written election filed with [OPM].” 5 U.S.C. § 8339(j)(1) (emphasis added).
Not only is the relevant language of form SF 2801-2 and its attachment clear, but
the presentation of that language is sufficiently accessible. The spousal consent form
and the attachment are each a single page in length. The sentences explaining the law
and the consequences of the election are not buried among numerous provisions or
obscured by unrelated information. The effect of signing the form is communicated at
least three times in three different ways between the two pages. The form thus
provides sufficient notice to alert readers to its consequences upon reasonable review
and is explicit enough for the act of signing the form to evidence agreement with the
terms of the form. See Collins, 45 F.3d at 1573.
Mrs. Braza’s unawareness of her rights and of the significance of the form were
not due to any insufficiency in the form, but rather to her admitted failure to read the
form. No form, no matter how carefully drafted, would have educated Mrs. Braza
against waiving her annuity if she did not read its contents before signing it. Mrs.
Braza’s failure to read the form, and the circumstances promoting this failure, give rise
to Mrs. Braza’s second argument; that her waiver was unknowing and therefore is
invalid.
We reject Mrs. Braza’s second argument as well. We affirm the controlling law of
this circuit, under which a clear express written waiver of annuity benefits is invalid only
if it was signed pursuant to fraud, duress, or mental incompetence. See id. In Collins, a
CSRS retiree sought to void an election that he made at the time of his retirement not to
make a deposit for credit for military service. The form explained the choices available
2008-3174 8
and that the effect of electing not to make the deposit was a reduction in annuity when
the retiree became eligible for Social Security benefits. Mr. Collins argued that he
misunderstood the consequences of his election, and thus signed the form pursuant to
a mistake. We held that he was nonetheless bound by his election absent a showing of
mental incompetence, duress, or fraud. Id.
The Board decision emphasized Steele rather than Collins in its analysis. In
challenging the Board’s reliance on Steele, Mrs. Braza argues that Steele was wrongly
decided. She argues that the standard set in Johnson v. Zerbst, 304 U.S. 458 (1938),
rather than in Richmond, controls whether a waiver of a right is valid. We decline to
comment here on whether Richmond actually compels the Board’s finding in Steele.
We find, however, that the Board’s reliance on Steele in denying Mrs. Braza’s claim is
consistent with this court’s precedent in Collins, and does not run afoul of the Supreme
Court’s decision in Zerbst.
Zerbst was a criminal case in which a defendant allegedly waived his right to
counsel. The defendant was indicted, tried, convicted, sentenced, and incarcerated in
the span of two days. He was not represented by counsel at any point, including on
appeal. The Government alleged that the defendant waived his right to counsel, despite
no explicit communication of waiver and no trial court finding on the matter. The
Supreme Court, noting that courts indulge “every reasonable presumption against
waiver of fundamental constitutional rights,” ruled that the “determination whether there
has been an intelligent waiver of the right to counsel must depend, in each case, upon
the particular facts and circumstances surrounding that case.” Zerbst, 304 U.S. at 464.
2008-3174 9
The Supreme Court went on to impose on the trial court a duty to protect the accused’s
right to counsel from incompetent waiver. Id. at 465.
While courts have cited Zerbst in a variety of other contexts for the proposition
that a valid waiver requires intentional relinquishment of a known right, the particular
facts and circumstances surrounding Mrs. Braza’s case are so different from those in
Zerbst, that the Court’s analysis there has only limited application here. For example,
the right waived in this case is not a constitutional right, such as the right to counsel in a
criminal case. Completing a standard election form may well not suffice for waiver of
the right to counsel in a criminal trial, but the statute here states that it can provide a
basis for finding a waiver of the right to a survivor annuity. Finally, the election of a
larger lifetime annuity in place of a survivor annuity is not invariably contrary to the
spouse’s interests. Unlike the waiver of counsel, which is almost always improvident,
there are many circumstances under which it is apt to be in the spouse’s interest to
choose the larger initial annuity rather than a survivor annuity. 1 It is therefore
inappropriate to examine an annuity waiver as though it were a waiver of counsel.
That Mrs. Braza neglected to read the waiver form before signing it does not
release her from the binding effect of the waiver under controlling law. Mrs. Braza does
not allege duress, fraud, or mental incompetence, and the circumstances of her case
would not support finding any. Mrs. Braza maintains that her consent was based on her
1
For instance, it may be in the best interest of a couple to waive spousal
annuity if the couple predicts that the surviving spouse will not outlive the retiree long
enough to recoup the reduction in the retiree’s lifetime annuity. The differences in age,
gender, and health of the retiree and spouse thus inform the decision. It appears that
Congress intended the various survivor annuity options to be equal in value from an
actuarial standpoint.
2008-3174 10
trust in her husband’s decision. That she now regrets having trusted her husband’s
decision is unfortunate, but it does not invalidate the waiver of her survivor annuity
entitlement.
Accordingly, the decision of the MSPB is affirmed.
AFFIRMED
COSTS
Each party shall bear its own costs.
2008-3174 11
United States Court of Appeals for the Federal Circuit
2008-3174
ELPIDIA L. BRAZA,
Petitioner,
v.
OFFICE OF PERSONNEL MANAGEMENT,
Respondent.
Petition for review of the Merit Systems Protection Board in DC0831070165-I-1.
DYK, Circuit Judge, with whom NEWMAN, Circuit Judge, joins, dissenting.
I respectfully dissent because, in my view, the Office of Personnel Management’s
(“OPM’s”) SF 2801-2 spousal consent form fails to provide the required statutory notice
to the spouse of her right to receive a survivor annuity.
I
Survivor annuities have long been a feature of federal retirement plans. Before
1984, the civil service employee alone decided whether his spouse would receive a
survivor annuity. See 5 U.S.C. § 8341(b)(1) (1982). The Civil Service Retirement
Spouse Equity Act of 1984, Pub. L. No. 98-615, 98 Stat. 3195, was designed to remedy
this situation in three ways: (1) it recognized the existing right to a survivor annuity; (2) it
provided the spouse with a right to receive the annuity even if the employee waived the
annuity; and (3) it required notice to the spouse (as well as the employee) of the
statutory annuity right, and required the spouse to affirmatively waive the right to receive
it. The Act provides that
if an employee . . . dies after having retired under this subchapter and is
survived by a widow or widower, the widow or widower is entitled to an
annuity equal to 55 percent [of the employee’s annuity] . . . unless the right
to a survivor annuity was waived under . . . section 8339(j)(1) . . . .
Id. § 2(4)(B)(i), 98 Stat. at 3199 (codified at 5 U.S.C. § 8341(b)(1)) (emphases added).
Section 8339(j)(1) specifies that in order to waive the survivor annuity, “the employee
. . . and the spouse [must] jointly waive the spouse’s right to a survivor annuity in a
written election filed with [OPM] at the time that the employee . . . retires.” 5 U.S.C.
§ 8339(j)(1) (emphases added).
In passing the Act, Congress wanted to make certain that spouses knew of their
statutory right to an annuity, and the consequences of an election. The legislative
history of the Act evinces Congress’s clear desire to “strengthen the election process” to
ensure that both civil service employee and spouse “know precisely what will be gained
or lost as a result of the election.” H.R. Rep. No. 98-1054, at 12 (1984), as reprinted in
1984 U.S.C.C.A.N. 5540, 5543 (emphasis added). Representative Patricia Schroeder,
the original sponsor of the Act, stated:
Section 4 of H.R. 2300 would make survivor benefits mandatory unless
the retiree, spouse, or former spouse . . . sign[s] a notarized waiver
electing out of the survivorship plan. This “informed consent” procedure is
urgently needed because many retirees are not fully aware of the
consequences of their irrevocable decision at the time of retirement.
When they later discover that they may have made a mistake, it is too late
to correct it. Every week I receive frantic letters from widows of civil
service employees who discovered after the death of the retiree that they
have no survivor benefits and are facing economic devastation.
Civil Service Spouse Retirement Equity Act: Hearing on H.R. 2300 Before the
Subcomm. on Compensation and Employee Benefits of the H. Comm. on Post Office
and Civil Service, 98th Cong. 5 (1983) (emphases added). Congress thus intended that
2008-3174 2
spouses be provided adequate notice in order to understand their statutory rights prior
to executing knowing and intentional waivers.
In other contexts, courts have recognized the importance of adequate notice for a
waiver of statutory rights. See, e.g., Alexander v. Gardner-Denver Co., 415 U.S. 36, 52
n.15 (1974) (“In determining the effectiveness of any such waiver [of a cause of action
under Title VII of the Civil Rights Act of 1964], a court would have to determine at the
outset that the employee’s consent to the settlement was voluntary and knowing.”);
Tierney v. Schweiker, 718 F.2d 449, 455–56 (D.C. Cir. 1983) (holding notice-and-
consent forms for the release of confidential tax information by the IRS to the Social
Security Administration invalid, in part for failure to set forth the individuals’ rights,
because “[w]ithout an understanding of their substantive and procedural rights,
appellants cannot be said to have consented knowingly and voluntarily to the release of
their tax information”); Parker v. DeKalb Chrysler Plymouth, 673 F.2d 1178, 1182 (11th
Cir. 1982) (holding that purchaser’s release of automobile dealer “from any and all
claims” did not bar Truth in Lending Act claim where purchaser was not made aware
that the release encompassed those rights).
We have been stringent as well in enforcing adequate notice requirements in the
closely related area of survivor benefits following divorce. See, e.g., Hernandez v.
Office of Pers. Mgmt., 450 F.3d 1332, 1335 (Fed. Cir. 2006) (holding that OPM failed to
provide adequate notice that a civil service retiree must make an election in order to
continue providing spousal survivor benefits following divorce); Wood v. Office of Pers.
Mgmt., 241 F.3d 1364, 1366–67 (Fed. Cir. 2001) (same); Vallee v. Office of Pers.
Mgmt., 58 F.3d 613, 615–16 (Fed. Cir. 1995) (same).
2008-3174 3
II
In my view, the SF 2801-2 spousal waiver form at issue in this case,
denominated “Revised January 1990,” did not come close to adequately informing
spouses of retiring civil service employees of their statutory right to an annuity. A copy
of the form Mrs. Braza signed is attached. 1 As can be seen, the form is divided into
three parts requiring completion: Part 1 of the form is reserved for the retiring employee
to indicate his survivor annuity election. Part 2 of the form consists simply of a line on
which the retiring employee’s spouse signs, beneath the following statement: “I freely
consent to the survivor annuity election described in Part 1. I understand that my
consent is final (not revocable).” Part 3 of the form is a standard notary signature block.
The “Attachment to SF 2801-2,” dealing with survivor health coverage, also attached,
states:
I have freely consented to the survivor annuity election described on the
attached SF 2801-2, Spouse’s Consent to Survivor Election.
I understand that I will be ineligible to continue coverage under the
Federal Employees Health Benefits (FEHB) Program if my spouse dies
because I have consented to his/her election to provide no survivor
annuity.
While the SF 2801-2 form states that by signing Part 2 a spouse consents to the
election made by the employee in Part 1; that the consent is irrevocable; and that the
spouse will receive a reduced survivor annuity or no annuity, nothing on the form
adequately provides that, if the spouse does not sign, she will have a statutory right to
1
To maintain privacy, the social security number on the form has been
redacted. OPM revised its SF 2801-2 form in 2007. See U.S. Office of Pers. Mgmt.,
Standard Form 2801, Application for Immediate Retirement, at 16 (2007), available at
http://www.opm.gov/forms/pdf_fill/SF2801.pdf. The old form almost certainly still affects
hundreds of thousands of former federal employees.
2008-3174 4
receive her own annuity for her life if the employee-spouse predeceases her. The only
notice given the spouse in the SF 2801-2 of the statutory right is one sentence at the
bottom of the form, beneath the notary signature block, that states:
General Information: Public Law 98-615 requires that a retiring, married
employee whose annuity begins on or after May 7, 1985, must elect to
provide a full survivor annuity for a current spouse, unless the current
spouse consents to some other election by signing this form.
This sentence is part of a block of small-print text that describes among other things the
rights of a divorced spouse and the usual boilerplate privacy rights.
Ironically, SF 2801, the separate form completed only by the employee, does
describe the spouse’s statutory right to a survivor annuity (“the law provides an annuity
with full survivor benefits for your spouse unless your spouse consents to your
election”), and explains that that right will be lost if the employee elects a self-only
annuity and his spouse consents to that election. However, there is no requirement or
suggestion on any of the forms that the consenting spouse read the form signed by the
employee.
The majority, relying entirely on the “General Information” sentence at the bottom
of the form, contends that the SF 2801-2 form “clearly states that the law requires an
employee to provide a full survivor annuity for a current spouse.” Majority Op. at 7. The
form, however, is in fact far from clear. First and foremost, the text on the form is not
likely to be understood by non-lawyers since it is written in legalese. It refers to “Public
Law 98-615” instead of a “statutory right.” The form further speaks to a compelled
election by the employee, not the right of the spouse to receive the annuity, absent
waiver. The difference in language masks the importance of the spouse’s right and
dramatically affects how the spouse may view the survivor annuity; it suggests that by
2008-3174 5
not signing the form, the spouse is compelling a disadvantageous election by her
husband rather than claiming a benefit to which she is statutorily entitled.
Second, even if the notice could be understood, the notice is buried so that it is
not likely to be read. The language appears labeled “General Information” at the bottom
of the form, below the notary signature block, and the spouse is not invited to read it
before signing, much less directed to read it before signing. As noted above, the text is
also accompanied by various other provisions such as the rights of a divorced spouse
and the usual boilerplate privacy rights. The language appears in small type.
Thus, even with adequate time to review the form, it is unlikely to be informative.
And it is equally unlikely that spouses are typically given time to review the form at their
leisure. The problem is well illustrated by the facts of this case, where Mrs. Braza’s
husband allowed her only a brief period of time to review the form before signing it. The
government does not suggest that this is atypical. Indeed, the government cites a
recent nonprecedential opinion of this court involving similar circumstances. See
Scalese v. Office of Pers. Mgmt., 283 F. App’x 800, 803 (Fed. Cir. 2008). Particularly in
this context and given the deficiencies in the form, it is simply unrealistic to expect those
signing the form to read or understand the information essential to an effective waiver of
their statutory right. Prominent and clear information is all the more essential given the
real world context in which the forms are executed.
If this waiver appeared in a form used in the private sector, it would never be held
to satisfy the notice requirements, under cases such as Alexander and Parker, cited
earlier. The government must be governed by the same rules that it imposes on others.
Because the SF 2801-2 spousal waiver form fails to provide adequate notice of the
2008-3174 6
statutory right to a survivor annuity absent the waiver, it fails to comply with the statute. 2
I respectfully dissent.
2
I agree with the majority that if the form were compliant, signing of the
form would automatically constitute a waiver absent a showing of fraud, duress, or
mental incompetence. Collins v. Office of Pers. Mgmt., 45 F.3d 1569, 1573 (Fed. Cir.
1995). The reverse is not true, i.e., a waiver may occur if the spouse, despite a
noncompliant form, was aware of the statutory right and the consequences of signing.
But here, the Administrative Judge found that Mrs. Braza did not have such knowledge,
and therefore no waiver occurred.
2008-3174 7