Harvey Kimble died while still working for the United States Postal Service (USPS) after some 31 years. His former wife applied to the Office of Personnel Management (OPM) for death benefits, indicating that she “may be listed as a beneficiary for benefits” or otherwise entitled to them. OPM denied her application based on the fact that their “post-nuptial agreement” and divorce contained a mutual waiver that neither Harvey nor his ex had any right to each other’s pension or retirement. (Kimble-Davis v. Office of Personnel Management CAFC No. 2023-1881 (nonprecedential) 3/18/2024, p. 2)
Ms. Kimble-Davis sought reconsideration, arguing that the divorce decree was invalid and she was therefore still married to Harvey when he died. OPM determined otherwise based on applicable state law, the written agreement in which she had waived any claim to Harvey’s pension, and her failure to prove that she was entitled to survivor benefits. (Pp. 2-3)
As was her right, Ms. Kimble-Davis took her appeal to the Merit Systems Protection Board (MSPB). She argued not only was her divorce invalid, but that she had not been “mentally competent” when she signed the divorce document. Further, she argued, Mr. Kimble “had likely designated her as a beneficiary in documents held by OPM.” (P. 3)
The MSPB, having found no evidence that Harvey had elected any survivor annuity, that he in fact had not ever applied for retirement, that Ms. Kimble-Davis had released any claim to his retirement, and that it had no authority to interfere with the divorce decree which was governed by state law, upheld OPM’s denial of benefits and MSPB’s ruling on her administrative appeal. (p. 3)
Ms. Kimble-Davis took her case to the federal appeals court. The court has now sustained the denial of survivor benefits for the ex-wife. Ms. Kimble-Davis argued that OPM should have to prove that Harvey did not designate her as receiving survivor benefits. Not so, ruled the court: “The ‘burden of proving entitlement [is] on the applicant for benefits.’” (P. 5)
The court went on to opine that even if Mr. Kimble had elected a survivor benefit before their divorce, he would have to have expressly elected it as part of the divorce or thereafter for the ex-wife to have any claim. Since the “record contains no evidence of such an order,” OPM was correct in denying the benefits and MSPB was correct in affirming that denial of benefits. (p. 6)
