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Bravo v. Office of Personnel Management

U.S. Court of Appeals, Federal Circuit


March 04, 1999

ALCIO BRAVO, PETITIONER,
v.
OFFICE OF PERSONNEL MANAGEMENT, RESPONDENT.

Before Lourie, Schall, and Bryson, Circuit Judges.

The opinion of the court was delivered by: Per Curiam.

NOTE: Pursuant to Fed. Cir. R. 47.6, this Disposition is not citable as precedent. It is a public record. The Disposition will appear in tables published periodically.

DECISION

Alcio Bravo petitions for review of the final decision of the Merit Systems Protection Board (Board) affirming the determination of the Office of Personnel Management (OPM) that Mr. Bravo was ineligible to elect an annuity with survivor benefits for his wife under the Civil Service Retirement Act (CSRA). Bravo v. Office of Personnel Management, No. AT-0831-98-0297-I-1. We affirm.

DISCUSSION

I.

Mr. Bravo retired under the CSRA in 1993 while married to Karen Denise Bravo. At the time, the two were having marital difficulties and had previously agreed to separate. Their settlement and separation agreement, dated August 23, 1993, provided that each waived retirement benefits from the other.

As part of his retirement application, dated August 24, 1993, Mr. Bravo elected to take a full retirement annuity, unreduced by any deduction that otherwise would have provided a survivorship annuity to his wife. Mrs. Bravo signed a document (Standard Form 2801-2) that same day waiving her right to a survivor annuity. Mr. Bravo's retirement became effective on September 4, 1993. A final judgment of dissolution of marriage was entered on September 17, 1993. Subsequently, however, on June 7, 1996, the couple remarried.

On December 8, 1997, OPM denied Mr. Bravo's request to elect a reduction in his retirement annuity to provide a survivor annuity for Mrs. Bravo. OPM explained to Mr. Bravo that 5 U.S.C. § 8339(j)(5)(C)(iv) requires that any reduction in an annuity must have been elected at the time of retirement. Because Mr. Bravo did not elect a reduction at that time, OPM concluded that he was no longer eligible to elect a reduction.

Mr. Bravo appealed OPM's decision to the Board. On May 29, 1998, the administrative Judge (AJ) issued an initial decision affirming OPM's determination. The AJ's initial decision became the final decision of the Board on September 30, 1998 when the Board denied Mr. Bravo's petition for review for failure to meet the criteria for review set forth at 5 C.F.R. § 1201.115. This appeal followed. We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(9) (1994).

II.

We must affirm the Board's decision unless we find it to be arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; obtained without procedures required by law, rule, or regulation having been followed; or unsupported by substantial evidence. See 5 U.S.C. § 7703(c) (1994); Sandel v. Office of Personnel Management, 28 F.3d 1184, 1186 (Fed. Cir. 1994). The determination that Mr. Bravo is ineligible to elect a reduction in his retirement annuity presents a question of law that we review de novo on appeal. See Marano v. Department of Justice, 2 F.3d 1137, 1141 (Fed. Cir. 1993).

The CSRA provides that a retired employee or "Member" (retiree) who was married at the time of retirement may, upon remarriage, elect a reduction in his annuity in order to provide a survivor annuity for his new spouse. See 5 U.S.C. § 8339(j)(5)(C)(i) (1994). However, the statute further provides that such an election may not be made if the spouse for whom the survivor annuity is sought was married to the retiree at the time of his retirement and all rights to survivor benefits were then waived. See id. § 8339(j)(5)(C)(iv).

In this case, Mrs. Bravo was married to Mr. Bravo at the time of his retirement, and as of that time all rights to survivor benefits for her had been waived. Thus, the facts bring this case squarely within the limitation of 5 U.S.C. § 8339(j)(5)(C)(iv). Accordingly, Mr. Bravo is barred from now electing a reduction of his retirement annuity in order to provide a survivor annuity for Mrs. Bravo. As a result, we must affirm the Board's decision sustaining OPM's denial of Mr. Bravo's application.

Each party shall bear its own costs.

19990304


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