Surviving Former Spouse Sues OPM to Obtain Survivor’s Annuity

When OPM denied this former spouse’s application for a survivor’s annuity, she appealed. An appeals court ultimately reversed OPM and MSPB.

The case is Cross v OPM (CAFC No. 2021-1116 (nonprecedential) 1/24/2022. The plaintiff, Doreen Cross married Wayne in 1982 but they separated in 1998, dividing their assets in writing. Wayne was a civilian Navy serviceman who retired under the Federal Employees Retirement System (FERS) seven years after his separation from Ms. Cross. He elected in writing to provide the maximum allowable survivor annuity.

Some ten years after his retirement, the couple divorced and shortly thereafter Mr. Cross died. 

Ms. Cross submitted all the required paperwork to OPM (Office of Personnel Management). OPM apparently assumed that Doreen was the surviving spouse and began paying her a survivor’s annuity. Almost a year later, OPM delivered the bad news to Ms. Cross that it had awarded the annuity in error, demanded repayment of $1241.73, and terminated her annuity. OPM asserted that because the divorce decree did not award Doreen a survivor annuity, and because she was not in fact the surviving spouse of Mr. Cross, she was not entitled to the annuity. 

Ms. Cross asked OPM to reconsider, pointing out she had never said she was a surviving spouse, and that she and her former husband were “aware of a need to manipulate [their] divorce decree in order for OPM to pay” what she and her former husband had both wanted as evidenced by Mr. Cross’s formal election. It took OPM to reject her arguments. Since the divorce decree did not grant Ms. Cross a survivor benefit and Mr. Cross failed to submit an election to provide his former spouse a survivor annuity following their divorce, OPM ruled that she was simply ineligible. (Opinion pp. 2-4)

The MSPB affirmed OPM’s decision and Ms. Cross went to court.

The crux of her argument to the appeals court was that OPM failed to provide effective notice to Mr. Cross of the need to elect the survivor annuity again following their divorce. Further, the MSPB had concluded that Mr. Cross intended for Doreen to receive the survivor annuity. 

The appeals court agrees with Ms. Cross. The court opines that while there is no clearly stated right to the survivor annuity in a divorce decree, nevertheless “the statutorily required notice is ineffective; and…the evidence shows that the employee…intended to provide a former spouse survivor annuity,” then the former spouse is entitled to the annuity. (Pp. 4-5)

The court points out that the MSPB found, and OPM did not challenge on appeal, that there is “no doubt that Mr. Cross did intend until his death that [Ms. Cross] would receive a former spouse survivor annuity based on his federal service.” (P. 5)

Therefore, it becomes “dispositive” whether OPM gave the “statutorily required notice,” and the court concludes, contrary to MSPB, that it did not. (P. 5)

In this case, OPM failed to provide its usual sworn affidavit that it had in fact mailed every year a detailed notice as to the requirements for survivor annuities. A single 2012 notice found by Ms. Cross in Mr. Cross’ “burn file” was insufficient to substantiate that OPM had met its burden to prove it had provided the required yearly notice. Thus the court concluded OPM’s “statutorily required notice was ineffective.”

About the Author

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.