dissenting.
The majority improperly conflates two separate issues: (1) whether OPM erred in denying petitioner survivor annuity benefits and (2) whether OPM abused its discretion under 5 C.F.R. § 838.721(b)(2). My colleagues correctly conclude that, in view of the information Robert Nixon provided, OPM abused its discretion by refusing his request to contact his ex-wife to confirm she had indeed remarried before age 55, but awarding petitioner benefits Mr. Nixon never elected on her behalf is not a lawful remedy. I respectfully dissent.
I agree with the majority that if OPM had failed to satisfy its statutory obligation to annually notify Mr. Nixon of his rights of election, our caselaw would preclude OPM from denying petitioner survivor annuity benefits because there was ample evidence that Mr. Nixon wished to make such an election. Here, however, substantial evidence supported the Board’s findings (1) that Mr. Nixon did receive the mandatory annual notices, (2) that they correctly informed him of his election rights and (3) that he was fully aware he was required to elect in writing a survivor annuity benefit for his current spouse within two years of their marriage on December 22, 1999, yet failed to do so. Pursuant to 5 U.S.C. §§ 8339(j)(5)(C)(i) and 8339(k)(2)(A), election by the annuitant within two years of remarriage is a statutory prerequisite to OPM distributing survivor benefits. The majority cites no statutory or regulatory authority for granting petitioner such benefits in the absence of a timely formal election where, as here, the mandatory notice was adequately provided. I believe there is none.
Petitioner does not argue that OPM’s annual notices failed to inform Mr. Nixon about his election rights. The cases cited by the majority about lack of notice or ineffective notice — i.e., Hairston, Brush, and Wood — are therefore inapplicable here. What the majority now creates, on its own authority, is a new obligation for OPM to also accurately provide an annuitant with information about the costs of election and obligations for documenting disqualifying remarriages of former spouses, (which may or may not affect whether the annuitant chooses to exercise his or her election rights), above and beyond *1370what is required by statute.1
Likewise, Mumvakkil is distinguishable. Pursuant to 5 U.S.C. § 8342(j), OPM is expressly obligated to notify any spouse or former spouse before disbursing a lump-sum payment of retirement contributions under § 8342(a), which terminates any annuity. No analogous statute or regulation requires OPM to notify, much less demand information from, a former spouse when an annuitant chooses to elect benefits for a new spouse. That makes sense because the right to benefits of a former spouse are unaffected. 'In Muwwakkil, we observed that the purpose of the statute was “to protect former spouses of federal employees from unwittingly being denied support to which by law they may be entitled.” 18 F.3d at 925. Put another way, we held that the Spouse Equity-Act imposes additional notice requirements on OPM to prevent an annuitant from secretly taking away any benefits which he has previously elected on behalf of a former spouse. If we were to apply the reasoning of Mu-wwakkil to this case, as the majority claims to do, its logical extension would be a holding that Mr. Nixon could not unilaterally affect the rights of his ex-wife without OPM first notifying her, if and when he elected survivor benefits for his new wife, which he never did. But here, the ex-wife had no entitlement anyway. Moreover, if the ex-wife had not remarried before age 55, Mr. Nixon’s election for his new wife would not have defeated her court-ordered survivor annuity benefits, so there would have been no need for OPM to notify her.
Even though Mr. Nixon was misinformed regarding his obligations to obtain documents necessary for terminating his ex-wife’s benefits after her disqualifying remarriage, nothing prevented him from electing survivor benefits for his new wife. The majority acknowledges that OPM repeatedly warned him that he needed to do so within two years of his marriage. Moreover, Mr. Nixon was specifically notified that he could “elect the maximum survivor benefit for [his] spouse and then at a later date provide [OPM] with a copy of [his ex-wife’s] marriage certificate.” In other words, determining whether his ex-wife was excluded from receiving benefits was an entirely “separate matter,” as recognized by Mr. Nixon himself in his correspondence with OPM. Even if he had eventually prevailed in challenging OPM’s refusal to terminate his ex-wife’s benefits unless he provided proof of her disqualifying remarriage, it would not have excused his failure to elect survivor benefits for his new wife in a timely fashion. Cf Iacono v. Office of Pers. Mgmt., 974 F.2d 1326, 1328 (Fed.Cir.1992) (holding that the statutorily-imposed filing deadline for requesting a survivor annuity could not be equitably tolled).
The majority speculates that Nixon acted in reliance on OPM’s misinformation in that he wanted to avoid double deductions from his annuity payments. Perhaps so. Under the statutory scheme, however, this cannot change the result. The majority mandates that the petitioner is entitled to a survivor annuity notwithstanding Mr. Nixon’s failure to affirmatively make an election on her behalf within two years of his remarriage, (as required by statute), if the Board finds, on remand, that OPM’s error was causally connected and therefore *1371harmful. This runs contrary to the longstanding rule that equitable estoppel cannot be used to grant “a money remedy that Congress has not authorized.” Office of Pers. Mgmt. v. Richmond, 496 U.S. 414, 426, 110 S.Ct. 2465, 110 L.Ed.2d 387 (1990) (explaining that the Appropriations Clause of the Constitution, Art. I, § 9, cl. 7, prohibits any money from being drawn from the Treasury unless authorized by a statute); see also Holder v. Office of Pers. Mgmt, 47 F.3d 412, 414 (Fed.Cir.1995). The only exception is fraud, which is not alleged here. While the result may seem harsh, all courts have a duty “to observe the conditions defined by Congress for charging the public treasury.” Fed. Crop Ins. Corp. v. Merrill, 332 U.S. 380, 385, 68 S.Ct. 1, 92 L.Ed. 10 (1947). With caselaw declaring the unavailability of both equitable tolling and equitable estoppel, I am at a loss to understand what equitable power the majority relies upon. Even if one were identified, I cannot see how, in light of Richmond, it can override the statutory preconditions to disbursing a survivor annuity.
Regardless of the reasons behind his choice not to elect survivor annuity benefits for his new wife, the record conclusively indicates that Mr. Nixon never submitted an application to secure petitioner’s entitlement to benefits. “[N]ot even the temptations of a hard case can elude the clear meaning” of 5 U.S.C. §§ 8339(j)(5)(C)(i) and 8339(k)(2)(A). Merrill, 332 U.S. at 386, 64 S.Ct. 1101. Accordingly, the Board’s decision to deny petitioner’s request for survivor annuity benefits was not arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law. Rather, it was the legally-required outcome.
This does not mean, however, that petitioner is left without any relief. In the alternative, she sought a “refund of all monies reduced from [Mr. Nixon’s] annuity benefits” for the six years between his ex-wife’s remarriage in 1998 and his death in 2004. Pursuant to 5 U.S.C. § 8339(j)(5)(B), any reduction in his annuity should have been terminated.2 In light of our consensus conclusion that OPM abused its discretion under 5 C.F.R. § 838.721(b)(2) in failing to contact the ex-wife, I would affirm-in-part, vacate and remand this case for a calculation of the amount of this refund, presumably payable to the petitioner in lieu of Mr. Nixon.
. As noted by the majority, OPM is only required to "on an annual basis, inform each annuitant of such annuitant’s rights of election under sections 8339(j) and 8339(k)(2) of title 5, United States Code.” 5 U.S.C. § 8339 note.
. In a letter dated June 10, 2005, OPM acknowledged that it considered Mr. Nixon’s ex-wife’s potential entitlement to survivor annuity benefits terminated retroactive to February 28, 1998.