A recent appeals court decision underscores the need for federal retirees to be careful when they make and communicate with the Office of Personnel Management decisions about survivor annuity elections. (Dorsey v Office of Personnel Management, C.A.F.C. No. 2009-3071 (nonprecedential), 11/25/2009)
The petitioner in this case tried without success to convince OPM, the Merit Systems Protection Board and the appeals court that her deceased husband had made an election to provide her with a survivor’s annuity.
More than 11 years after retiring from federal service, James Blood married Alice Dorsey. By law, in order to provide for a survivor’s annuity for his new wife, Blood was required to send OPM something in writing stating his intention to do so. He did receive a package of forms from OPM, which he filled out and returned to make Dorsey his beneficiary for life insurance and for any sums due him under the retirement system.
But Blood failed to state in writing that he wanted to elect a survivor’s annuity for his wife. The court found that Blood was informed by OPM of this requirement in writing. (Opinion pp. 2-4)
When Blood died, his widow petitioned OPM to begin paying her a survivor’s annuity. Because Blood had not made the required election in writing within two years of his marriage, the petition was denied. The MSPB affirmed and Ms. Dorsey took her case to the federal appeals court. (pp. -2)
As the court explained in refusing to overturn the OPM decision, no particular form is required in order to make the required election. All Blood had to do was send a signed letter to OPM indicating his intent within 2 years of his marriage. (p. 3)
Dorsey argued that Blood’s signature on the forms (SF 2808 and 2823) to make her beneficiary under his retirement and life insurance plans was enough to prove his intent on the survivor annuity. Not so, ruled the court: "The forms submitted by Mr. Blood relate to other benefits and do not elect a survivor annuity benefit." (p. 3) SF 2808, which relates to lump-sum retirement benefits specifically states that 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. …" (p. 3)
The court appeared sympathetic to Dorsey’s argument that Blood had suffered from Alzheimer’s disease for the last ten years of his life. Nevertheless, the court pointed out that the two-year window requiring a written statement of intent on the survivor’s annuity is a statutory requirement that the court "simply does not have the authority to ignore. …" (p. 4)
In short, there is simply no way for Dorsey to receive a survivor’s annuity under the facts of this case.
There is a harsh lesson in this case for federal retirees and their surviving spouses.
Susan McGuire Smith spent most of her federal legal career with NASA, serving as Chief Counsel at Marshall Space Flight Center for 14 years. Her expertise is in government contracts, ethics, and personnel law.