                      NOTE: This disposition is nonprecedential.

 United States Court of Appeals for the Federal Circuit
                                        2009-3130

                                   BETTY J. GREEN,

                                                            Petitioner,

                                            v.

                      OFFICE OF PERSONNEL MANAGEMENT,

                                                            Respondent,

                                           and

                                WILLIAM L. GREEN, JR.,

                                                            Intervenor.

      Betty J. Green, of Hampton, Georgia, pro se.

      Kenneth S. Kessler, Trial Attorney, Commercial Litigation Branch, Civil Division,
United States Department of Justice, of Washington, DC, for respondent. With him on
the brief were Michael F. Hertz, Deputy Assistant Attorney General, Jeanne E.
Davidson, Director, and Steven J. Gillingham, Assistant Director.

      William L. Green, Jr., of Ellijay, Georgia, pro se.


Appealed from: Merit Systems Protection Board
                        NOTE: This disposition is nonprecedential.

 United States Court of Appeals for the Federal Circuit

                                       2009-3130

                                  BETTY J. GREEN,

                                                                     Petitioner,

                                            v.

                      OFFICE OF PERSONNEL MANAGEMENT,

                                                                     Respondent,

                                           and

                               WILLIAM L. GREEN, JR.,

                                                                     Intervenor.

Petition for review of the Merit Systems Protection Board in AT0831080787-I-1.

                           ___________________________

                           DECIDED: July 13, 2009
                           ___________________________



Before MICHEL, Chief Judge, NEWMAN and DYK, Circuit Judges.

PER CURIAM.

      Betty J. Green appeals from the decision of the Merit Systems Protection Board

(“Board”) affirming the decision of the Office of Personnel Management (“OPM”)

denying her entitlement to a former spouse annuity under the Civil Service Retirement

System. Green v. Office of Pers. Mgmt., No. AT0831080787-I-1 (M.S.P.B. Feb. 4,

2009) (“Final Decision”). We affirm.
                                   BACKGROUND

      Ms. Green’s former spouse, Intervenor William L. Green, Jr., retired from civilian

service in the Federal Aviation Administration on January 3, 1986. At the time of his

retirement, Mr. Green was married to Ms. Green, and Mr. Green elected a reduced

retirement annuity with a survivor annuity benefit for Ms. Green in the event of Mr.

Green’s death. Mr. and Ms. Green were divorced on May 12, 2003. The divorce

decree, issued by the Superior Court of Henry County, Georgia, stated in relevant part,

“The wife shall be awarded the Clayton County Teachers Retirement . . . and the Sun

Life Assurance Company annuity . . . . The husband shall be awarded the Federal

Aviation Administration retirement annuity . . . .” The divorce decree does not mention

any other retirement benefits.

      On July 1, 2004, Mr. Green submitted the divorce decree and requested that the

Office of Personnel Management (“OPM”) eliminate the survivor annuity reduction from

his retirement annuity. Effective June 1, 2003, the reduction in Mr. Green’s annuity was

eliminated.

      Sometime later, Ms. Green contacted OPM regarding Mr. Green’s retirement

annuity, claiming that she was entitled to a survivor annuity. On March 19, 2008, OPM

responded to her inquiry, stating “Our office reviewed the divorce decree submitted by

Mr. Green and determined that the court did not award you a survivor annuity benefit.

Consequently, you will not be entitled to a monthly survivor annuity upon the death of

William L. Green.” Ms. Green requested reconsideration of the initial decision. On July

29, 2008, OPM made a final decision holding that, based on the divorce decree and




2009-3130                                     2
pursuant to 5 U.S.C. § 8341(h)(1) and 5 C.F.R. §§ 838.804, 838.912, Ms. Green was

“not entitled to a former spouse survivor annuity based on a court order.”

      Ms. Green appealed OPM’s final decision to the MSPB, and on September 29,

2008, an Administrative Judge (“AJ”) held that Ms. Green “did not prove that the May

12, 2003 divorce decree in the instant case is a ‘court order acceptable for processing’

inasmuch as it does not expressly provide for [Ms. Green] to be awarded a former

spouse survivor annuity in the event of Mr. Green’s death.” Green v. Office of Pers.

Mgmt., No. AT0831080787-I-1, slip op. 4–5 (M.S.P.B. Sept. 29, 2008).

      Ms. Green appealed the AJ’s decision. On February 4, 2009, the full Board

denied her petition for review, and the AJ’s decision became the final decision of the

Board. Ms. Green then timely petitioned for review of the Board's decision in our court.

We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(9).

                                     DISCUSSION

      The scope of our review in an appeal from a Board decision is limited. We can

only set aside the Board’s decision if it was “(1) arbitrary, capricious, an abuse of

discretion, or otherwise not in accordance with 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).   A claimant for benefits under the Civil

Service Retirement System (“CSRS”) must prove by a preponderance of the evidence

that she is entitled to such benefits. True v. Office of Pers. Mgmt., 926 F.2d 1151, 1153

(Fed. Cir. 1991).

      Section 8341(h)(1) of Title 5 of the United States Code addresses survivor

annuities and provides:




2009-3130                                       3
      Subject to paragraphs (2) through (5) of this subsection, a former spouse
      of a deceased employee, Member, annuitant, or former Member who was
      separated from the service with title to a deferred annuity under section
      8338(b) of this title is entitled to a survivor annuity under this subsection, if
      and to the extent expressly provided for in an election under section
      8339(j)(3) of this title, or in the terms of any decree of divorce or
      annulment or any court order or court-approved property settlement
      agreement incident to such decree.

Section 838.804 of title 5, Code of Federal Regulations, provides:

      (a) A court order awarding a former spouse survivor annuity is not a court
      order acceptable for processing unless it expressly awards a former
      spouse survivor annuity or expressly directs an employee or retiree to
      elect to provide a former spouse survivor annuity as described in
      paragraph (b) of this section.
      (b) To expressly award a former spouse survivor annuity or expressly
      direct an employee or retiree to elect to provide a former spouse survivor
      annuity as required by paragraph (a) of this section the court order must—
         (1) Identify the retirement system using terms that are sufficient to
         identify the retirement system as explained in § 838.911; and
         (2)(i) Expressly state that the former spouse is entitled to a former
            spouse survivor annuity using terms that are sufficient to identify the
            survivor annuity as explained in § 838.912; or
            (ii) Expressly direct the retiree to elect to provide a former spouse
            survivor annuity using terms that are sufficient to identify the survivor
            annuity as explained in § 838.912.

(emphasis added). Section 838.912(a) of title 5, Code of Federal Regulations, provides:

      (a) To satisfy the requirements of § 838.804(b)(2), a court order must
      specify that it is awarding a former spouse survivor annuity. The court
      order must contain language such as “survivor annuity,” “death benefits,”
      “former spouse survivor annuity under 5 U.S.C. 8341(h)(1),” etc.

      Ms. Green argues that under state law she was entitled to the CSRS annuity.

However, entitlement under state law would not be sufficient.                The applicable

regulations require that the divorce decree or property settlement “expressly award” or

“expressly direct” the award of a former spouse survivor annuity. The May 12, 2003

divorce decree does not provide Ms. Green with a former spouse survivor annuity.

There was thus no error in the Board’s decision. Ms. Green urges that the Board erred



2009-3130                                        4
in failing to order the production of certain documents, but here the documents were not

shown to be relevant, and there was thus no error in declining to order production.

      No costs.




2009-3130                                      5
