NOTE: This disposition is nonprecedential.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

______________________

ROSE ANN KIMBLE-DAVIS, Reading, PA, pro se.

 IOANA C. MEYER, Commercial Litigation Branch, Civil 

Division, United States Department of Justice, Washington, DC, for respondent. Also represented by BRIAN M.

BOYNTON, PATRICIA M. MCCARTHY, CORINNE ANNE NIOSI.

______________________

Before PROST, BRYSON, and STARK, Circuit Judges.

PER CURIAM.

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

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 retirement benefits. Because substantial evidence supports the Board’s finding that Ms. KimbleDavis 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. On June 30, 2006, Ms. Kimble-Davis and Mr. Kimble entered into a post-nuptial agreement, and on September 20, 2007 they divorced. Their agreement provided that 

both waived any right to each other’s pension or retirement 

plans. When Mr. Kimble died, Doris Kimble, his daughter, 

applied for, and received, Mr. Kimble’s lump-sum death 

benefits under 5 U.S.C. §§ 8342(b)-(d). See Rose Ann Kimble-Davis v. Off. of Pers. Mgmt., 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 the 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: 03/18/2024
DAVIS 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 to the post-nuptial agreement, which 

provided that each party released its claim to the other 

party’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 

speculated that Mr. Kimble had likely designated her as a 

beneficiary in documents held by OPM. 

The Board held that Ms. Kimble-Davis had not established she was entitled to a former spouse survivor annuity. First, the 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 otherwise elected a survivor annuity. 

Second, the Board determined that even if there had been 

a pre-divorce election, the post-nuptial agreement and divorce decree expressly provided that Ms. Kimble-Davis released all claims to Mr. Kimble’s pension and retirement 

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. The Board issued 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: 03/18/2024
4 DAVIS v. OPM

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 entered 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); Dachniwskyj 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.” Dachniwskyj, 713 F.3d at 102 (citing 5 U.S.C. 

§ 8339(j)(5)(A)(ii)). The election of a former spouse survivor 

annuity under 5 U.S.C. § 8341(h)(1) must be “expressly 

provided 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 appeal 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 she was not a designated beneficiary. She relies in part on an OPM publication stating “[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: 03/18/2024
DAVIS v. OPM 5

The Board’s contrary findings, that Ms. Kimble-Davis 

failed to demonstrate that Mr. Kimble ever designated her 

as a beneficiary or that she is a surviving spouse, 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. Kimble-Davis’ suggestion that OPM was required to 

prove she was not Mr. Kimble’s beneficiary. Instead, in an 

action for a survivor annuity, the “burden of proving entitlement [is] on the applicant for benefits.” Cheeseman 

v. Off. of Pers. Mgmt., 791 F.2d 138, 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. KimbleDavis has at no point identified any evidence demonstrating that she had been designated Mr. Kimble’s beneficiary.3 Instead, she relies entirely on her status as his 

former spouse, which is insufficient. 

Moreover, even if Mr. Kimble had elected a survivor 

annuity prior to the divorce, that election would 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 specific 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 Synan 

v. Merit Sys. Prot. Bd., 765 F.2d 1099, 1101 (Fed. Cir. 1985) 

(“Petitioner cannot raise before this court an issue which 

could have been raised below but which was not.”).

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

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, she 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). Regardless, 

even if OPM had treated this as a surviving spouse case, 

that mistake would not make up for the absence of a divorce decree providing for a survivor annuity. See Off. of 

Pers. Mgmt. v. Richmond, 496 U.S. 414, 416-17, 419-20

(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

COSTS

No costs.

Case: 23-1881 Document: 36 Page: 6 Filed: 03/18/2024