                   NOTE: Pursuant to Fed. Cir. R. 47.6, this disposition
                     is not citable as precedent. It is a public record.

      United States Court of Appeals for the Federal Circuit
                                           05-3295

                                BRENDA ELLEN ALDRICH,

                                                       Petitioner,

                                             v.

                       OFFICE OF PERSONNEL MANAGEMENT,

                                                       Respondent.

                             ___________________________

                             DECIDED: January 11, 2006
                             ___________________________


Before RADER, BRYSON, and LINN, Circuit Judges.

RADER, Circuit Judge.

       The Merit Systems Protection Board (the Board) affirmed the Office of Personnel

Management’s (OPMs) denial of Brenda E. Aldrich’s application for Civil Service

Retirement System (CSRS) survivor benefits. Because the Board did not err when it

concluded that Ms. Aldrich’s pre-May 7, 1985 divorce date made her ineligible for

survivor benefits, this court affirms.

                                         BACKGROUND

       Ms. Aldrich divorced Richard Atomanuk by order of a Vermont court dated

April 28, 1983. At the time of his death in 1999, Mr. Atomanuk was an employee of the

Postal Service. After his death, Ms. Aldrich applied for CSRS survivor benefits. OPM

denied those benefits and Ms. Aldrich appealed that denial to the Board. Before the
Board, Ms. Aldrich argued that she was entitled to survivor benefits by virtue of an

amended court order dated October 1, 1987, which required Mr. Atomanuk to pay child

support. The Board rejected that argument because Ms. Aldrich and Mr. Atomanuk

divorced prior to May 7, 1985, and the relevant rule extends survivor benefits, where

those benefits are provided by court order, only in the case of marriages that ended on

or after May 7, 1985. Ms. Aldrich appeals.

                                       DISCUSSION

       This court possesses limited authority to review a Board decision. The Board’s

decision must be affirmed unless it is: (1) arbitrary, capricious, an abuse of discretion,

or otherwise not in accordance with the law; (2) obtained without procedures required

by law, rule, or regulation having been followed; or (3) unsupported by substantial

evidence. 5 U.S.C. § 7703(c) (2000); Kievenaar v. Office of Pers. Mgmt., 421 F.3d

1359, 1362 (Fed. Cir. 2005).       Issues of statutory and regulatory construction are

reviewed without deference.      Kievenaar, 421 F.3d at 1362 (citing Billings v. United

States, 322 F.3d 1328, 1332 (Fed.Cir.2003)).

       Prior to enactment of the Spouse Equity Act of 1984, Pub. L. No. 98-615, 98 Stat.

3195 (codified as various amended sections throughout 5 U.S.C.), a former spouse had

no right to survivor benefits under the CSRS. See Vallee v. Office of Pers. Mgmt., 58

F.3d 613, 614-15 (Fed. Cir. 1995).       Effective May 7, 1985, the Spouse Equity Act

provided entitlement to a survivor annuity to the extent “expressly provided for . . . in the

terms of any decree of divorce or annulment or any court order or court-approved

property settlement agreement incident to such decree.” 5 U.S.C. § 8341 (h)(1) (2000).

5 C.F.R. § 838.802(a) implements the effective date of the Spouse Equity Act where




05-3295                                      2
benefits are sought based on court order in connection with a divorce, i.e., the basis for

Ms. Aldrich’s claim. That OPM regulation states:

              A court order awarding a former spouse survivor annuity
              under CSRS is not a court order acceptable for processing
              unless the marriage terminated on or after May 7, 1985.


5 C.F.R. § 838.802(a) (2005) (emphasis added). The Board based its decision affirming

OPM in this case on that rule.

       Notwithstanding 5 C.F.R. § 838.802(a), Ms. Aldrich argues that the Board erred

because it ignored Vallee, in which provisions of the Spouse Equity Act were held to

apply to a CSRS retiree whose divorce occurred prior to May 7, 1985. Vallee, 58 F.3d

at 614. In Vallee, this court explained that a retiree must be given notice of his ability to

provide a survivor annuity to a former spouse. Vallee at 615. Thus, Vallee did not

address a situation where a former spouse sought benefits as a result of a divorce-

related court order. Instead, Vallee concerned the notice that must be given to a retiree

regarding his ability to confer benefits to a former spouse regardless of when the

marriage ended.      In this case, had Mr. Atomanuk retired before his death, he

presumably would have been advised of that option.              Contrary to Ms. Aldrich’s

arguments, Vallee is not relevant to her situation because her situation does not involve

a retiree who may have intended to provide a survivor annuity to a former spouse. Mr.

Atomanuk was never a retiree. Instead, Ms. Aldrich’s situation fits squarely within 5

C.F.R. 838.802(a): she is attempting to obtain survivor benefits by virtue of a divorce-

related court order. Because Ms. Aldrich’s divorce occurred prior to May 7, 1985, the

effective date of the Spouse Equity Act, there is no statutory basis for awarding her

survivor benefits. The fact that Mr. Atomanuk could have provided a survivor annuity to



05-3295                                      3
Ms. Aldrich had he retired before he died does not have any bearing on Ms. Aldrich’s

claim. The Board did not err in its application of 5 C.F.R. § 838.802(a) in this case.

Therefore, this court affirms.




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