N OTE : This disposition is nonprecedential. 

# United States **Court of Appeals**  **for the Federal Circuit**

______________________
ROSE ANN KIMBLE

- DAVIS, Petitioner

v.

OFFICE OF PERSONNEL MANAGEMENT, Respondent

______________________
2023

- 1881

______________________ Petition for review of the Merit Systems Protection Board in No. PH

- 0831

- 16

- 0365

- I

- 1.

______________________
Decided: March 18, 2024

______________________
R OSE A NN KIMBLE

- D AVIS , Reading, PA, pro se.

I OANA C. M EYER , Commercial Litigation Branch, CivilDivision, United States Department of Justice, Washington, DC, for respondent. Also represented by B RIAN M. B OYNTON , P ATRICIA M. M C C ARTHY , C ORINNE A NNE N IOSI

.

______________________
Before P ROST , B RYSON , and S TARK , Circuit Judges

. P ER C URIAM

. Case: 23-1881 Document: 36 Page: 1 Filed: 03/18/2024DAVIS v. OPM 2

Rose Kimble

- Davis , the ex

- wife of Harvey Kimble, a deceased federal employee, appeals the decision of the Merit Systems Protections Board (the “Board”) finding her not entitled to certain retirem ent benefits. Because substantial evidence supports the Board’s finding that Ms. Kimble

Davis did not establish she is entitled to the benefits , we affirm.

I

Ms. Kimble

- Davis and Mr. Kimble married in 1979. Mr. Kimble worked for the United States Postal Service from March 1983 until January 2014, when he passed
away. O n June 30, 2006, Ms. Kimble

- Davis and Mr. Kimble entered into a post

- nuptial agreement , and on September 20, 2007 they divorced. The ir agreement provided that both waive d any right to each other’s pension or retirement plans. When Mr. Kimble died, D oris Kimble, his daughter, applied for, and received, Mr. Kimble’s lump

- sum death benefits under 5 U.S.C. § § 8342 (b)

- (d). See R ose Ann Kimble

- Davis v. Off

. of Pers

. M gmt. , No. PH

- 0831

- 16

- 0365

- I

- 1, 2017 WL 2936603 , at * 2 ( M.S.P.B. July 5, 2017) (“ Decision ”). 1

Ms. Kimble

- Davis also filed an application for death benefits, in which she stated she “may be listed as a beneficiary for benefits and/or a beneficiary by operation of law .” S.A. 1. 2 The Office of Personnel Management (“ OPM ”) denied her application because t he Kimbles’ divorce agreement did not provide for survivor benefits. Ms. Kimble

- Davis requested reconsideration on the grounds that the divorce decree was not valid and,

1 Citations to page numbers in the Decision correspond to the page numbers of the copy of Decision in Ms

. Kimble

- Davis’ informal appendix.

2 References to the S.A. refer to government’s supplemental appendix. Case: 23-1881 Document: 36 Page: 2 Filed: 03/18/2024DAVIS v. OPM 3

therefore, she was still married to Mr. Kimble

. OPM determined the divorce decree was still in effect, according to applicable state law, and that Ms. Kimble

- Davis had not shown she was entitled to former spouse survivor benefits

. OPM also pointed t o the post

- nuptial agreement , which provided that each party released its claim to the other part y ’ s pension.

Ms. Kimble

- Davis appealed OPM’s decision to the Board, arguing again that her divorce was not valid. She also argued that she had not been mentally competent when she signed the post

- nuptial agreement and further speculat ed that Mr. Kimble had likely designated her as a beneficiary in documents held by OPM.

The Board held that Ms. Kimble

- Davis had not es tablished she was entitled to a former spouse survivor annuity. First, t he Board found there was no evidence that Mr. Kimble had elected any survivor annuity

– because he had not applied for retirement

– and there were no documents indicating he had other wise elected a survivor annuity. Second, the Board determined that even if there had been
a pre

- divorce election, t he post

- nuptial agreement and divorce decree expressly provided that Ms. Kimble

- Davis released all claims to Mr

. Kimble’s pension and retire ment plans. Third, the Board concluded that it could not set aside the state court’s divorce decree as that matter was governed by state law and, hence, outside the scope of the Board’s authority.

Ms. Kimble

- Davis filed a petition for review by the full Board . Th e Board issue d a final decision on March 30, 2023 , finding that she “ has not established any basis under [5 C.F.R. § 1201.115] for granting the petition for review

. ” Kimble

- Davis v. Off. of Pers. Mgmt. , No. PH

- 0831

- 16

- 0365

- I

- 1, 2023 WL 2715688, at *1 (M.S.P.B. Mar. 30, 2023)

. Ms

. Kimble

- Davis then timely appealed. We have jurisdiction under 28 U.S.C. § 1295(a)(9)

. Case: 23-1881 Document: 36 Page: 3 Filed: 03/18/2024DAVIS v. OPM 4

II

“ We must affirm the Board ’ s decision unless it was arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; obtained without procedures required by law, rule or regulation; or unsupported by substantial evidence .” Hernandez v. Off. of Pers. Mgmt. , 450 F.3d 1332, 1334 (Fed. Cir. 2006) ; see 5 U.S.C. § 7703(c)

. When a federal employee eligible for retirement dies while still employed , the late employee’s former spouse is eligible for a survivor annuity if ( a) the employee elected

one pursuant to 5 U.S.C. § 8339(j)(3) within two years of the dissolution of the marriage

, or ( b) if a court order e ntered in the context of a divorce

– a divorce decree, property settlement agreement, or other

– makes specific reference to such benefits, see 5 U.S.C. §§ 8341(d) ( 2 )(B) , (h)(1)

. See also 5 C.F.R. § 838.912(a); D achniwsky j v. Off. of Pers. Mgmt. , 713 F.3d 99, 102 (Fed. Cir. 2013) ; Vaccaro v. Off. of Pers. Mgmt. , 262 F.3d 1280, 1284 (Fed. Cir. 2001)

. “Divorce generally terminates a prior election of spousal survivor benefits.” Dachniwsky j , 713 F.3d at 102 (citing 5 U.S.C. § 8339(j)(5)(A)(ii) )

. The el ection of a former spouse survivor annuity under 5 U.S.C. § 8341(h)(1) must be “expresslyprovided for” in the court order entered as part of the divorce. Downing v. Off. of Pers. Mgmt. , 619 F.3d 1374, 1377 (Fed. Cir. 2010)

. Ms. Kimble

- Davis argues on ap peal that OPM’s publications indicate that a divorce does not affect a prior designation of a beneficiary for retirement lump sum benefits, and further that no one has shown s he was not a designated beneficiary. She relies in part on a n OPM publication st ating “[a] divorce does not affect a designation of beneficiary that was filed at some earlier time.” Informal Br. at 6; id. at Exhibit A, p. 9. She also contends that OPM treated her case as a surviving spouse case, indicating that she was , in fact, a designated beneficiary. Case: 23-1881 Document: 36 Page: 4 Filed: 03/18/2024DAVIS v. OPM 5

The Board’s contrary finding s , th at Ms. Kimble

- Davis failed to demonstrate that Mr. Kimble ever designated her as a beneficiary or that she is a surviving s pouse , is supported by substantial evidence. As the Board found, there is “ no indication in this record that Mr. Kimble made any written election to provide the appellant with a survivor annuity during their marriage .” Decision , at *4. We reject Ms. Kim ble

- Davis ’ suggestion that OPM was required to
prove she was not Mr. Kimble’s beneficiary . Instead, in an action for a survivor annuity, t he “ burden of proving entitlement [is] on the applicant for benefits

. ” Cheeseman

v. Off. of Pers. Mgmt. , 791 F.2d 13 8, 141 (Fed. Cir. 1986) ; see also Harris v. Dep ’ t of Veterans Affs. , 142 F.3d 1463, 1467 (Fed. Cir. 1998) (“ The petitioner bears the burden of establishing error in the Board ’ s decision .”). Ms

. Kimble

Davis has at no point identified any evidence demonstrating t hat she had been designated Mr. Kimble’s beneficiary

. 3 I nstead , she relies entirely on her status as his former spouse , which is insufficient

. Moreover, e ven if Mr. Kimble had elected a survivor annuity prior to the divorce

, th at election w ould have been terminated by his failure to expressly provide for it in a court order as part of the divorce

. See Warren v. Off. of Pers. Mgmt. , 407 F.3d 1309, 1313 (Fed. Cir. 2005) . Under the applicable statutory provisions, without a s pecific election after dissolution of a marriage, a former spouse is not entitled to a survivor annuity except to the extent provided for in a specific court order entered as part of a divorce

3 For this reason, and also because she did not raise the issue with OPM or the Board, the OPM publications do not provide Ms. Kimble

- Davis a basis for relief. See S ynan

v. Merit Sys. Prot. Bd. , 765 F.2d 1099, 1101 (Fed. Cir. 1985) (“Petitioner cannot raise before this court an iss ue which could have been raised below but which was not.”)

. Case: 23-1881 Document: 36 Page: 5 Filed: 03/18/2024DAVIS v. OPM 6

proceeding. See 5 U.S.C. § § 8339(j)(5)(A)(ii) , 8341(h)

. The record contains no evidence of such an order. Finally, while Ms. Kimble

- Davis does not before us
press her contention that her divorce decree is invalid, she offers a related, new argument : because OPM treated this dispute as a surviving spouse case, s he should be considered a surviving spouse. Because this argument was not made to the Board, it is forfeited. See Wallace v. Dep’t of Air Force , 879 F.2d 829, 832 (Fed. Cir. 1989)

. R egardless, even if OPM had treated this as a surviving spouse case, tha t mistake would not make up for the absence of a divorce decree provid ing for a survivor annuity

. See Off

. of Pers. Mgmt. v. Richmond , 496 U.S. 414

, 416

- 17, 4 1 9

- 20 (1990) (holding that erroneous government advice does not trump statutory language)

. III

We have considered Ms. Kimble

- Davis’ other arguments and find them unpersuasive. For the reasons stated above, we affirm the Board’s decision.

AFFIRMED

C OSTS
No costs. Case: 23-1881 Document: 36 Page: 6 Filed: 03/18/2024