Before Steadman and Schwelb, Associate Judges, and Belson,
The opinion of the court was delivered by: Belson, Senior Judge:
Petitioner Mirinda Jackson appeals the determination of respondent District of Columbia Police and Firefighters Retirement and Relief Board ("Board") that she was not entitled to survivor annuity benefits under the Police and Firefighters Retirement and Disability Act ("the Act"). *fn1 The issue on appeal is whether petitioner, the widow of Burton F. Jackson, a retired United States Secret Service agent, waived her right to the survivor annuity under the Act by entering into a separation and property settlement agreement with her husband, whereby each party explicitly waived to the other any interests in the other's retirement plans, pensions, IRAs or similar interests. We conclude that the Board erred in finding that Ms. Jackson waived her rights to survivor annuity benefits and, accordingly, reverse and remand.
Burton F. Jackson was appointed to the United States Secret Service, Uniformed Division, on August 25, 1970. On March 5, 1976, he and petitioner married. Mr. Jackson retired from the Secret Service in 1990. In July 1994, he and petitioner entered into a separation and property settlement agreement. Mr. Jackson died on November 18, 1995. At the time, he and petitioner were still separated but had not divorced.
On January 16, 1996, Ms. Jackson submitted her application to the Board for survivor's benefits based on Mr. Jackson's former employment with the Secret Service. Without a hearing, the Board voted to deny her application on February 29, 1996, and issued a written decision to that effect on April 1, 1996, stating that pursuant to the separation [717 A2d Page 906]
agreement, Ms. Jackson "specifically waived her rights to her husband's pension." In re Mirinda Jackson, Police and Firefighters Retirement and Relief Bd. Case No. SS96-3020 (April 1, 1996).
Petitioner filed a petition for reconsideration, but the Board again denied her claim for survivor annuity benefits. *fn2 The Board issued a written decision embracing its second denial on April 10, 1997. *fn2
Our review of an agency's action is deferential; "[w]e defer to an agency's interpretation of a statute or regulations it is responsible for enforcing as long as the interpretation is not plainly wrong or inconsistent with the legislature's intent." Downs v. District of Columbia Police and Firefighters Retirement & Relief Bd., 666 A.2d 860, 861 (D.C. 1995) (citations omitted). We must "defer to an administrative agency's findings of fact and affirm them if they are supported by substantial evidence in the record as a whole." 4934, Inc. v. District of Columbia Dep't of Employment Servs., 605 A.2d 50, 53 (D.C. 1992) (citations omitted). Nonetheless, we will " 'hold unlawful and set aside any [agency] action or findings and conclusions' not supported by substantial evidence." Breen v. District of Columbia Police and Firefighters Retirement & Relief Bd., 659 A.2d 1257, 1258 (D.C. 1995) (quoting D.C.Code § 1-1510(a)(3)(E) (1992 Repl.)). Guided by these principles, we turn now to the merits of this case.
The statutory provision at issue is D.C.Code § 4-622(b), which provides in relevant part:
In case of the death . . . of any former member after retirement . . ., leaving a widow or widower, such widow or widower shall be entitled to receive an annuity. . . .
Id. The term "member" in this section includes United States Secret Service agents of the Uniformed Division as defined by D.C.Code § 4-607(1). Ms. Jackson contends that the Board erred in denying her annuity benefits pursuant to this section. The Board, however, maintains ...