A divorced spouse of a deceased federal employee was unsuccessful in her bid to persuade the Federal Circuit Court of Appeals to order OPM to grant her a survivor’s annuity based on a local court order issued after her former husband’s death. (List v. Office of Personnel Management, U.S.C.A.F.C., No. 05-3255, November 14, 2005)
When Mr. Comstock retired from the VA, he opted for a reduced annuity with survivor benefits for his wife. They later divorced. The divorce decree awarded Ms. List a percentage of her husband’s annuity payment; however the divorce decree made no mention of a survivor’s annuity. OPM notified Mr. Comstock that he had the right to elect a former spouse survivor annuity for Ms. List. However, he never did so and a few months following the divorce his annuity was restored to the unreduced level.
Meanwhile, his former wife remarried. When Mr. Comstock died, his former wife obtained an amended order from the local court that provided she should receive a survivor’s annuity. The amended order was issued several months after Mr. Comstock’s death.
However, OPM denied Ms. List’s application for a survivor annuity, citing 5 C.F.R. section 838.806. That regulation precludes OPM from accepting a court order issued after the annuitant’s death.
Ms. List was unsuccessful in her appeal to the MSPB, which sided with OPM. The appeals court made it 0 for 3 when it issued its decision in the case. The court quotes the following language from OPM regulations: