United States Court of Appeals for the Federal Circuit
2009-3071
ALICE A. DORSEY,
Petitioner,
v.
OFFICE OF PERSONNEL MANAGEMENT,
Respondent.
Alice A. Dorsey, of Rocky Ridge, Maryland, pro se.
John S. Groat, Trial Attorney, Commercial Litigation Branch, Civil Division, United
States Department of Justice, of Washington, DC, for respondent. With him on the brief
were Tony West, Assistant Attorney General, Jeanne E. Davidson, Director, and
Patricia M. McCarthy, Assistant Director. Of counsel on the brief was Jo Ann Chabot,
Office of Personnel Management, of Washington, DC.
Appealed from: Merit Systems Protection Board
United States Court of Appeals for the Federal Circuit
2009-3071
ALICE A. DORSEY,
Petitioner,
v.
OFFICE OF PERSONNEL MANAGEMENT,
Respondent.
Petition for review of the Merit Systems Protection Board in PH0831080541-I-1.
__________________________
DECIDED: November 25, 2009
__________________________
Before NEWMAN, MAYER, and PROST, Circuit Judges.
Opinion for the court filed by Circuit Judge PROST. Dissenting opinion filed by Circuit
Judge NEWMAN.
PROST, Circuit Judge.
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
2009-3071 2
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 . . . . ”
2009-3071 3
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. Dorsey, the forms themselves do not demonstrate an intent to
elect survivor annuity benefits.
We also note that Mr. Blood received general notice regarding his right to elect a
survivor annuity as part of his Notices of Annuity Adjustment in 2002 and 2003. Those
notices explained that to elect a survivor annuity benefit for the first time, the annuitant
would need to make a deposit, the amount of which OPM would calculate following
election. Failure to pay the deposit would result in cancellation of the election. The
notices also informed Mr. Blood that upon electing a survivor annuity benefit, his own
annuity would necessarily be reduced. Ms. Dorsey provided no evidence that OPM
calculated a deposit amount, that Mr. Blood received a notice regarding his required
deposit, or that Mr. Blood paid a deposit. Ms. Dorsey also does not claim that Mr.
Blood’s annuity was decreased in the five years following Mr. Blood’s purported
election. This provides further support for the Board’s conclusion that Ms. Dorsey failed
to prove that Mr. Blood intended to elect a survivor annuity.
We cannot hold otherwise. To do so, we would have to infer that a loving
husband necessarily intends to procure every benefit available to him for his next of kin,
even in the absence of evidence to that effect. 1 Given that Ms. Dorsey carries the
1
There is no reason to limit this inference to the survivor annuity at issue
here; the same arguments Ms. Dorsey makes regarding those benefits apply equally
well to any other benefit that Mr. Blood did not properly elect.
2009-3071 4
burden of proving that she is entitled to a survivor annuity benefit, we cannot draw that
inference. Barnes v. Office of Pers. Mgmt., 980 F.2d 708, 713 (Fed. Cir. 1992).
Further, we cannot lose sight of the fact that we have limited review in this case. The
Board weighed the evidence and determined that “[n]othing in this record shows that
Mr. Blood elected a survivor annuity for [Ms. Dorsey] within the time allowed.” Because
that conclusion is supported by substantial evidence, we must affirm.
Second, Ms. Dorsey argues that Mr. Blood was suffering from Alzheimer’s
disease for the last ten years of his life and was unaware that the forms he received
from and returned to OPM would not provide a survivor annuity for her. The two-year
window during which a recently married retiree may elect for a survivor annuity,
however, is provided for by statute and applies even in cases of mental deficiency.
Schoemakers v. Office of Pers. Mgmt., 180 F.3d 1377, 1382 (Fed. Cir. 1999). This
court simply does not have the authority to ignore a statutory requirement.
Finally, Ms. Dorsey argues that Mr. Blood never received a personal notice from
OPM informing him that he only had two years after the date of their marriage during
which he could elect to provide a survivor annuity for her and that the forms he had
submitted did not make the election. To prove that it provided adequate notice, OPM
must establish both “that the notice was actually sent. . . . [and] the contents of the
annual notice.” Brush v. Office of Pers. Mgmt., 982 F.2d 1554, 1561 (Fed. Cir. 1992).
Although OPM has an obligation to provide annual notice to annuitants informing them
that they have the right to elect a survivor annuity, OPM may satisfy that obligation by
sending a general notice announcement rather than providing each annuitant with a
personalized notice letter. Hairston v. Office of Pers. Mgmt., 318 F.3d 1127, 1130 (Fed.
2009-3071 5
Cir. 2003). In this case, OPM provided a declaration by Cyrus S. Benson in which he
stated that he sent out annual notices to all annuitants, including Mr. Blood, in
December 2002 and 2003. The Board reviewed the notices and found that OPM
properly notified Mr. Blood of his right to elect a survivor annuity. As discussed above,
for instance, the notices provided Mr. Blood information regarding how to make an
election, the time-frame within which he needed to do so, and the consequences of
choosing a survivor annuity benefit. Thus, we agree that the notices were adequate.
Finally, as to Ms. Dorsey’s claim that OPM had an obligation to inform Mr. Blood that he
failed to make an election, we cannot agree. The Board concluded that
the preponderance of evidence shows that the notices were properly
mailed, and that Mr. Blood and/or [Ms. Dorsey] received those
notices. . . . that the notices contained an adequate explanation of Mr.
Blood’s right to elect a survivor annuity. . . . [and that n]othing in this
record shows that Mr. Blood elected a survivor annuity for [Ms. Dorsey]
within the time allowed.
Because we credit the Board’s determination, we cannot conclude that OPM should
have known of and acted upon Mr. Blood’s alleged intent to elect a survivor annuity.
In sum, the Board’s conclusion that Mr. Blood did not elect a survivor annuity
benefit for Ms. Dorsey is supported by substantial evidence. As a result, we must affirm
the Board’s decision.
COSTS
Each party shall bear its own costs.
AFFIRMED
2009-3071 6
United States Court of Appeals for the Federal Circuit
2009-3071
ALICE A. DORSEY,
Petitioner,
v.
OFFICE OF PERSONNEL MANAGEMENT,
Respondent.
Petition for review of the Merit Systems Protection Board in PH0831080541-I-1.
NEWMAN, Circuit Judge, dissenting.
After her husband, Mr. James Blood, died in 2008, Ms. Alice Dorsey was told by
the Office of Personnel Management (“OPM”) that Mr. Blood had not made a proper
election to provide her with a survivor annuity. My colleagues on this panel agree. For
the reasons I shall explain, Mr. Blood met the minimum requirements of demonstrating
the intention to elect a survivor annuity.
In 1991 Mr. Blood retired from service with the National Security Agency. He and
Ms. Dorsey were married in 2002. Mr. Blood phoned OPM shortly after the marriage, in
accordance with the instructions in the notice that is sent to all retirees by OPM.
Section 2 of the OPM notice is entitled “Survivor Annuity Benefits for a Spouse You
Marry After Retirement.” Under “How to Make an Election,” the notice states:
Call or write to OPM at the address on this notice within the two-year time
limit, state the election you want to make, include proof of your marriage,
and sign your request. We will send you detailed information about the
effect of the election, the exact amount of your annuity if you decide to
make the election and an election form to sign and return to us if you want
to take this action.
In response to Mr. Blood’s phone call OPM sent him two forms, Form 2823 entitled
“Designation of Beneficiary, Federal Employees’ Group Life Insurance (FEGLI)
Program,” and Form 2808 entitled “Designation of Beneficiary, Civil Service Retirement
System.” Mr. Blood completed both forms, listing Ms. Dorsey as the primary beneficiary
in the space indicated on both forms; they were duly signed and witnessed as the forms
designated, and returned to OPM in accordance with the accompanying instructions.
Neither form is the correct form for electing a survivor annuity. Ms. Dorsey states that
her husband believed he had elected a survivor annuity, and that she heard him inform
OPM, during the phone call, that he had married and wished to make this provision.
The facts are not in dispute, and credibility is not challenged. Rather, it is
apparent that Mr. Blood did not recognize that the forms that OPM sent him did not
provide a survivor annuity for the designated beneficiary. However, whatever error Mr.
Blood made in deciphering the forms, his was not the only error, for these forms were
sent to him in response to his notification to OPM requesting a survivor annuity. First,
OPM erroneously sent him a FEGLI beneficiary designation form, although he did not
have FEGLI insurance. Then, OPM did not notify Mr. Blood of the error when he
returned the completed FEGLI form, thus leaving the mistake undetected. The Civil
Service Retirement System (“CSRS”) “Designation of Beneficiary” form confusingly
2009-3071 2
refers to a “lump sum payment,” and states that the designation “will not affect” any
survivor annuity. And OPM never sent the correct form for electing a survivor annuity.
Thus, in response to Mr. Blood’s phone call, OPM sent the wrong forms and Mr.
Blood filled out and returned the wrong forms. Both sides to this unfortunate event
erred. OPM on this appeal appears to recognize its contribution to the mistake, for
OPM suggests that this court remand with instructions that OPM reconsider Ms.
Dorsey’s claim. See Resp. Br. at 15 (suggesting in the alternative that “the Court to [sic]
should remand this case to the MSPB with instructions to remand to OPM to determine
whether Ms. Dorsey is entitled to a survivor annuity”). However, my colleagues on this
panel decline to give Ms. Dorsey this chance. I must, respectfully, dissent.
DISCUSSION
The MSPB rejected Ms. Dorsey’s claim, holding that the forms Mr. Blood filled
out did not establish an “unmistakable intent” to elect a survivor annuity. However, Mr.
Blood’s intent to provide an annuity for Ms. Dorsey is supported by the entirety of these
events. Although the FEGLI and CSRS beneficiary forms were incorrect, these were
the forms that OPM sent in response to his notification of his post-retirement marriage.
Ms. Dorsey testified that she was present when Mr. Blood phoned OPM to give notice of
his marriage and that he wished to provide a survivor annuity for Ms. Dorsey. OPM
does not dispute her credibility.
Nor does OPM dispute that these were the wrong forms. Indeed, the FEGLI form
is totally inapplicable to Mr. Blood. The other form, entitled “Designation of Beneficiary,
Civil Service Retirement System,” is not a model of clarity. Form 2808 states:
I, the person identified above, designate the beneficiary or
beneficiaries named below to receive any lump-sum benefit which may
2009-3071 3
become payable under the Civil Service Retirement System (CSRS) after
my death. I understand that this designation of beneficiary will not affect
the rights of any survivors who may qualify for annuity benefits after my
death, cancels any previous designation of beneficiary, and remains in
effect until I cancel it in writing or I receive payment before retirement of all
the monies to my credit in the Civil Service Retirement and Disability
Fund.
I direct, unless otherwise indicated below, that if more than one
beneficiary is named, the share of any beneficiary who may predecease
me or who may be disqualified for any other reason shall be distributed
equally among the stated beneficiaries or entirely to the survivor. If none
of the beneficiaries are alive and eligible to receive payment when a lump
sum becomes payable, this designation is void and payment will be made
according to the order of precedence set by law.
Perhaps Mr. Blood thought this designation of the beneficiary of a “lump-sum benefit”
under the CSRS, and the form’s statement that the designation “will not affect” rights to
“annuity benefits after my death,” was the way OPM administered such annuity benefits
– for OPM sent him the form in response to his request to establish a survivor annuity.
Based on this form Ms. Dorsey was paid a lump sum of $247.93, which was Mr. Blood’s
accrued annuity for the month in which he died.
The MSPB observed that the forms OPM sent to Mr. Blood “served their true
purpose of designating beneficiaries for certain other benefits.” Dorsey v. Office of
Personnel Mgmt., No. PH-0831-08-0541-I-1, slip op. at 5 (M.S.P.B. Oct. 8, 2008) (initial
decision). However, that “true purpose” is obscure, for Form 2823 is for participants in
the federal life insurance program, and served no purpose whatsoever for Mr. Blood.
And Form 2808, which reads, at best, like a lump sum death benefit that preserves a
survivor annuity, instead provided two days pay.
The MSPB cites Harris v. Office of Personnel Mgmt., 985 F.2d 549, 550 (Fed.
Cir. 1993), for the “unmistakable intent” standard it relied on. However, the court did not
2009-3071 4
establish “unmistakable intent” as the standard of proof. Mr. Harris was a living
annuitant who had elected a survivor annuity for his wife married after retirement, but
then attempted to cancel the election. See id. at 549–50. Mr. Harris argued that he did
not make a binding election because he filed an incomplete form, for he did not select a
deposit option on the survivor annuity form. OPM rejected his argument and this court
affirmed, stating that “[w]e have no difficulty concluding that, when Harris signed this
form, he manifested an unmistakable intent to elect, and did elect, survivor annuity
benefits for his new spouse.” Id. at 550. This court described the evidence, not a new
standard of proof for survivorship election.
Circumstances beyond the specific flawed documents can be considered, in the
interest of achieving the correct and just result. Every indication is that Mr. Blood
intended to provide a survivor annuity for his new spouse, for he so informed OPM
within the proper time period, and completed the beneficiary forms that OPM provided.
Ms. Dorsey offers the information that she and Mr. Blood were raising a four-year old
child as their own, and Mr. Blood was desirous of assuring their support. The panel
majority is mistaken in proposing that precedent bars any relief on the facts of this case.
I take note of OPM’s argument that “[a] voluntary post-retirement survivor annuity
has immediate, irrevocable and costly consequences that annuitants may not wish to
incur,” Resp. Br. at 11, apparently proposing that Mr. Blood deliberately avoided
providing a survivor annuity for Ms. Dorsey. But OPM’s annual notice states that “[i]n
most cases, the actuarial reduction will be less than 5% of your annuity.” J.A. at 30.
On the entirety of the circumstances, the election of a survivor annuity for Ms.
Dorsey is supported by a preponderance of the evidence. At a minimum, OPM’s
2009-3071 5
suggestion for remand for further consideration should be implemented. From my
colleagues’ contrary ruling, I respectfully dissent.
2009-3071 6
Dorsey v. Office of Personnel Management
Court: Court of Appeals for the Federal Circuit
Date filed: 2009-11-25
Citations: 587 F.3d 1111
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