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Carol L. Banks v. Office of Personnel Management

February 14, 2012

CAROL L. BANKS, PETITIONER,
v.
OFFICE OF PERSONNEL MANAGEMENT, RESPONDENT.



Petition for review of the Merit Systems Protection Board in case no. CH0841100976-I-1.

Per curiam.

Before LINN, CLEVENGER, and REYNA, Circuit Judges.

Carol L. Banks appeals the decision of the Merit Systems Protection Board ("Board") affirming the Office of Personnel Management's ("OPM") denial of her request for a survivor annuity. Banks v. Office of Pers. Mgmt., No. CH0841100976-1-1 (M.S.P.B. November 30, 2010) ("Initial Decision"), (M.S.P.B. June 14, 2011) ("Final Order"). This court affirms.

I

Carol and Eugene Banks married in 1983. On April 7, 2001, Eugene, a physician for Hines Veterans Administration Hospital, filed for disability retirement under the Federal Employee Retirement System ("FERS") and elected a survivor annuity for Ms. Banks. In a letter dated October 18, 2001, the Office of Personnel Management ("OPM") notified Dr. Banks that his retirement was approved. The letter further advised Dr. Banks that he should notify OPM if there was any change in his marital status. On June 8, 2005, the Bankses divorced, and the resulting divorce decree made no mention of an annuity for Ms. Banks.

Ms. Banks testified that at the time of their divorce, she and Dr. Banks decided she would receive former spouse annuity. According to Ms. Banks, their attorneys were aware of the arrangement but failed to reflect the agreement in the language of the divorce decree. She also testified that after their divorce, Dr. Banks continued to receive a reduced annuity because he initially elected a spousal annuity when he retired and he did not notify OPM of his divorce. Ms. Banks testified that she and Dr. Banks maintained an amicable relationship after their divorce and that Dr. Banks never told her he no longer wished to provide her with the annuity. Ms. Banks also testified that Dr. Banks never showed her his mail, including any OPM notices.

Two of the Banks' daughters testified that their parents maintained an amicable relationship after the divorce. Although one daughter lived with Dr. Banks, neither daughter knew of correspondence from OPM stating a need for Dr. Banks to make an election in order to provide Ms. Banks with spousal annuity benefits if their marriage ended. The daughters also testified that Dr. Banks did not show any intent of discontinuing Ms. Banks's spousal annuity benefits. The daughters stated that their father handled his own finances, and that neither assisted him with any paperwork.

Cyrus Benson, OPM administrator for printing and distribution of notices, provided an affidavit stating that OPM sent Dr. Banks general annual notices in 2005 and 2006 during the two-year period after the divorce. Mr. Benson's affidavit provided that general notices regarding survivor elections were sent in the same manner to all annuitants in December 2005 and 2006. Exemplaries of the forms sent to annuitants were attached to the affidavit.*fn1

Dr. Banks died on November 9, 2009. On February 26, 2010, Ms. Banks applied for Dr. Banks's survivor annuity benefits. OPM denied Ms. Banks's application twice because the divorce decree did not provide for former spouse annuity benefits and Dr. Banks did not make an election for Ms. Banks within two years of the divorce.

On September 1, 2010, Ms. Banks appealed OPM's decision to the Merit Systems Protection Board ("Board"). After weighing the testimony from Ms. Banks and her daughters and Mr. Benson's affidavit, the administrative law judge upheld OPM's decision to deny Ms. Banks survivor annuity benefits. The administrative law judge considered whether Dr. Banks intended to provide a former spouse annuity for Ms. Banks and found that Dr. Banks did based on the continued reduced annuity and Ms. Banks's and her daughters' testimony. However, the administrative law judge cited Dr. Banks's failure to make an election despite circumstantial evidence that he received notices concerning the need to make such an election. The administrative law judge stated that OPM established that it was more probable than not that "the annual notice was sent and what it said." Initial Decision at 6. The administrative law judge then addressed Ms. Banks's burden to prove that Dr. Banks did not receive the annual notices. The administrative law judge found that Ms. Banks did not present testimony that Dr. Banks did not receive them, merely that his family was unaware if he had. Thus, the administrative law judge held that Ms. Banks did not sustain the burden of proof required to show OPM failed to meet its duty to notify Dr. Banks and denied Ms. Banks's request for survivor annuity benefits.

Ms. Banks filed a petition for review with the Board. She argued that Dr. Banks did not receive the annual notices and provided two of Dr. Banks's direct deposit slips as evidence. According to Ms. Banks, these deposit slips showed that the notices were sent to the wrong address. Although Ms. Banks and the government agreed that Dr. Banks changed his address on November 27, 2001 to 3819 Streamwood Drive, Hazel Crest, IL 60429, the parties differed as to Dr. Banks's actions after this point. The government provided a printout from its internal website showing a change of address with an effective date of March 17, 2005 to 18035 Versailles Lane, Apartment 102, Hazel Crest, IL 60429. Ms. Banks argued that Dr. Banks did not submit his new address until October 28, 2009, when he changed his address to 3621 W 176 Place, Country Club Hills, IL 60478. She cited the direct deposit slips as evidence of Dr. Bank's failure to update his address.

On June 14, 2011, the Board dismissed Ms. Banks's appeal. It held that the administrative law judge correctly found that OPM met its burden of demonstrating it provided Dr. Banks with sufficient notice. The Board found that OPM recorded separate addresses for paying benefits and for sending correspondence and that the correspondence address was correct. The Board determined that Ms. Banks did not submit new, previously unavailable evidence and upheld the administrative law judge's decision.

Ms. Banks appealed the Board's decision to this court. This court has jurisdiction under 28 ...


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