United States Court of Appeals for the Federal Circuit 

2009-3071 

ALICE A. DORSEY, 

Petitioner, 

v. 

OFFICE OF PERSONNEL MANAGEMENT, 

Respondent. 

 Alice A. Dorsey, of Rocky Ridge, Maryland, pro se. 

John S. Groat, Trial Attorney, Commercial Litigation Branch, Civil Division, United 

States Department of Justice, of Washington, DC, for respondent. With him on the brief 

were Tony West, Assistant Attorney General, Jeanne E. Davidson, Director, and 

Patricia M. McCarthy, Assistant Director. Of counsel on the brief was Jo Ann Chabot, 

Office of Personnel Management, of Washington, DC. 

Appealed from: Merit Systems Protection Board 
United States Court of Appeals for the Federal Circuit 

2009-3071 

ALICE A. DORSEY, 

 Petitioner, 

v. 

OFFICE OF PERSONNEL MANAGEMENT, 

 Respondent. 

Petition for review of the Merit Systems Protection Board in PH0831080541-I-1.

__________________________ 

DECIDED: November 25, 2009 

 __________________________ 

Before NEWMAN, MAYER, and PROST, Circuit Judges. 

Opinion for the court filed by Circuit Judge PROST. Dissenting opinion filed by Circuit 

Judge NEWMAN. 

PROST, Circuit Judge. 

 Ms. Alice Dorsey appeals the October 8, 2008 decision of the Merit Systems 

Protection Board (“Board”) affirming the Office of Personnel Management’s (“OPM’s”) 

denial of her request for a survivor annuity benefit based on the federal service of her 

late spouse, Mr. James C. Blood. Because the Board’s determination that Mr. Blood 

failed to elect a survivor annuity benefit during the two-year window provided for by 

statute is supported by substantial evidence, we affirm. 
I. BACKGROUND 

 Mr. Blood retired from federal service on June 30, 1991. At that time, he was not 

married and did not elect either a survivor annuity benefit or life insurance coverage 

under the Federal Employees’ Group Life Insurance (“FEGLI”) Program. On October 

25, 2002, Mr. Blood married Ms. Alice Dorsey. About a year later, Mr. Blood received 

from OPM Standard Forms 2808 and 2823, both of which he filled out and returned. 

These forms designated Ms. Dorsey as Mr. Blood’s beneficiary under both the Civil 

Service Retirement System and FEGLI. 

Mr. Blood passed away on February 2, 2008, and in March of that year Ms. 

Dorsey filed a request with OPM for a survivor annuity benefit. OPM denied the 

request, however, because Mr. Blood did not elect to provide a survivor annuity benefit 

for Ms. Dorsey within two years of their marriage. On appeal, the Board concluded that 

the record supported the agency’s conclusions that OPM satisfied its obligation to notify 

Mr. Blood of his right to elect a survivor annuity and that Mr. Blood did not make an 

election. Accordingly, it affirmed the agency’s decision. Ms. Dorsey filed a timely 

appeal in this court. We have jurisdiction under 28 U.S.C. § 1295(a)(9). 

II. DISCUSSION 

 Our review of a decision of the Board is strictly limited by statute. Under 5 U.S.C. 

§ 7703(c), we must affirm the Board’s decision in this case unless it is “(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.” The Board’s decision is supported by substantial 

evidence “if it is supported by such relevant evidence as a reasonable mind might 

2009-3071 2
accept as adequate to support a conclusion.” Brewer v. U.S. Postal Serv., 647 F.2d 

1093, 1096 (Ct. Cl. 1981) (quotation marks omitted). 

 A federal employee who is unmarried at the time he retires but later marries has 

the right to irrevocably elect to provide a survivor annuity for his spouse. 5 U.S.C. 

§ 8339(k)(2)(A). In order to exercise this right, the employee must submit to OPM a 

signed writing showing his intent to provide a survivor annuity within two years of the 

date of marriage. Id. No particular form is required; any signed writing that manifests 

the annuitant’s intent to make an election will suffice. Harris v. Office of Pers. Mgmt., 

985 F.2d 549, 550 (Fed. Cir. 1993). 

 Ms. Dorsey raises several arguments on appeal. First, she argues that the 

evidence clearly shows that Mr. Blood intended to provide a survivor annuity for her, 

even though he did not file an election. According to Ms. Dorsey, Mr. Blood’s 

submission of Standard Forms 2808 and 2823, combined with his desire to take care of 

his family, demonstrates that he intended for Ms. Dorsey to receive a survivor annuity. 

We conclude that substantial evidence supports the Board’s determination that 

Mr. Blood did not elect to provide a survivor annuity for Ms. Dorsey, as required by 

statute. The forms submitted by Mr. Blood relate to other benefits and do not elect a 

survivor annuity benefit. Standard Form 2808 provides for the designation of a 

beneficiary to receive a lump-sum benefit under the Civil Service Retirement System, 

and specifically states that “[t]his Designation of Beneficiary form is used to designate 

who is to receive a lump-sum payment which may become payable after your death. It 

does not affect the right of any person who is eligible for survivor annuity benefits. Do 

not confuse this form with designation forms used for other types of benefits . . . . ” 

2009-3071 3
Standard Form 2823 provides for the designation of a beneficiary under the Federal 

Employees’ Group Life Insurance program. The form repeatedly refers to “the Insured” 

and asks the person filling out the form whether he is the “Insured” or an “Assignee.” 

Thus, even if Mr. Blood erroneously believed that the forms he submitted would provide 

a survivor annuity for Ms. Dorsey, the forms themselves do not demonstrate an intent to 

elect survivor annuity benefits. 

We also note that Mr. Blood received general notice regarding his right to elect a 

survivor annuity as part of his Notices of Annuity Adjustment in 2002 and 2003. Those 

notices explained that to elect a survivor annuity benefit for the first time, the annuitant 

would need to make a deposit, the amount of which OPM would calculate following 

election. Failure to pay the deposit would result in cancellation of the election. The 

notices also informed Mr. Blood that upon electing a survivor annuity benefit, his own 

annuity would necessarily be reduced. Ms. Dorsey provided no evidence that OPM 

calculated a deposit amount, that Mr. Blood received a notice regarding his required 

deposit, or that Mr. Blood paid a deposit. Ms. Dorsey also does not claim that Mr. 

Blood’s annuity was decreased in the five years following Mr. Blood’s purported 

election. This provides further support for the Board’s conclusion that Ms. Dorsey failed 

to prove that Mr. Blood intended to elect a survivor annuity. 

We cannot hold otherwise. To do so, we would have to infer that a loving 

husband necessarily intends to procure every benefit available to him for his next of kin, 

even in the absence of evidence to that effect.1

 Given that Ms. Dorsey carries the 

 1

 There is no reason to limit this inference to the survivor annuity at issue 

here; the same arguments Ms. Dorsey makes regarding those benefits apply equally 

well to any other benefit that Mr. Blood did not properly elect. 

2009-3071 4
burden of proving that she is entitled to a survivor annuity benefit, we cannot draw that 

inference. Barnes v. Office of Pers. Mgmt., 980 F.2d 708, 713 (Fed. Cir. 1992). 

Further, we cannot lose sight of the fact that we have limited review in this case. The 

Board weighed the evidence and determined that “[n]othing in this record shows that 

Mr. Blood elected a survivor annuity for [Ms. Dorsey] within the time allowed.” Because 

that conclusion is supported by substantial evidence, we must affirm. 

Second, Ms. Dorsey argues that Mr. Blood was suffering from Alzheimer’s 

disease for the last ten years of his life and was unaware that the forms he received 

from and returned to OPM would not provide a survivor annuity for her. The two-year 

window during which a recently married retiree may elect for a survivor annuity, 

however, is provided for by statute and applies even in cases of mental deficiency. 

Schoemakers v. Office of Pers. Mgmt., 180 F.3d 1377, 1382 (Fed. Cir. 1999). This 

court simply does not have the authority to ignore a statutory requirement. 

Finally, Ms. Dorsey argues that Mr. Blood never received a personal notice from 

OPM informing him that he only had two years after the date of their marriage during 

which he could elect to provide a survivor annuity for her and that the forms he had 

submitted did not make the election. To prove that it provided adequate notice, OPM 

must establish both “that the notice was actually sent. . . . [and] the contents of the 

annual notice.” Brush v. Office of Pers. Mgmt., 982 F.2d 1554, 1561 (Fed. Cir. 1992). 

Although OPM has an obligation to provide annual notice to annuitants informing them 

that they have the right to elect a survivor annuity, OPM may satisfy that obligation by 

sending a general notice announcement rather than providing each annuitant with a 

personalized notice letter. Hairston v. Office of Pers. Mgmt., 318 F.3d 1127, 1130 (Fed. 

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2009-3071 6

Cir. 2003). In this case, OPM provided a declaration by Cyrus S. Benson in which he 

stated that he sent out annual notices to all annuitants, including Mr. Blood, in 

December 2002 and 2003. The Board reviewed the notices and found that OPM 

properly notified Mr. Blood of his right to elect a survivor annuity. As discussed above, 

for instance, the notices provided Mr. Blood information regarding how to make an 

election, the time-frame within which he needed to do so, and the consequences of 

choosing a survivor annuity benefit. Thus, we agree that the notices were adequate. 

Finally, as to Ms. Dorsey’s claim that OPM had an obligation to inform Mr. Blood that he 

failed to make an election, we cannot agree. The Board concluded that 

the preponderance of evidence shows that the notices were properly 

mailed, and that Mr. Blood and/or [Ms. Dorsey] received those 

notices. . . . that the notices contained an adequate explanation of Mr. 

Blood’s right to elect a survivor annuity. . . . [and that n]othing in this 

record shows that Mr. Blood elected a survivor annuity for [Ms. Dorsey] 

within the time allowed.

Because we credit the Board’s determination, we cannot conclude that OPM should 

have known of and acted upon Mr. Blood’s alleged intent to elect a survivor annuity.

In sum, the Board’s conclusion that Mr. Blood did not elect a survivor annuity 

benefit for Ms. Dorsey is supported by substantial evidence. As a result, we must affirm 

the Board’s decision. 

COSTS 

Each party shall bear its own costs. 

AFFIRMED
United States Court of Appeals for the Federal Circuit 

2009-3071 

ALICE A. DORSEY, 

 Petitioner, 

v. 

OFFICE OF PERSONNEL MANAGEMENT, 

 Respondent. 

Petition for review of the Merit Systems Protection Board in PH0831080541-I-1.

NEWMAN, Circuit Judge, dissenting. 

After her husband, Mr. James Blood, died in 2008, Ms. Alice Dorsey was told by 

the Office of Personnel Management (“OPM”) that Mr. Blood had not made a proper 

election to provide her with a survivor annuity. My colleagues on this panel agree. For 

the reasons I shall explain, Mr. Blood met the minimum requirements of demonstrating 

the intention to elect a survivor annuity. 

In 1991 Mr. Blood retired from service with the National Security Agency. He and 

Ms. Dorsey were married in 2002. Mr. Blood phoned OPM shortly after the marriage, in 

accordance with the instructions in the notice that is sent to all retirees by OPM. 
Section 2 of the OPM notice is entitled “Survivor Annuity Benefits for a Spouse You 

Marry After Retirement.” Under “How to Make an Election,” the notice states: 

Call or write to OPM at the address on this notice within the two-year time 

limit, state the election you want to make, include proof of your marriage, 

and sign your request. We will send you detailed information about the 

effect of the election, the exact amount of your annuity if you decide to 

make the election and an election form to sign and return to us if you want 

to take this action. 

In response to Mr. Blood’s phone call OPM sent him two forms, Form 2823 entitled 

“Designation of Beneficiary, Federal Employees’ Group Life Insurance (FEGLI) 

Program,” and Form 2808 entitled “Designation of Beneficiary, Civil Service Retirement 

System.” Mr. Blood completed both forms, listing Ms. Dorsey as the primary beneficiary 

in the space indicated on both forms; they were duly signed and witnessed as the forms 

designated, and returned to OPM in accordance with the accompanying instructions. 

Neither form is the correct form for electing a survivor annuity. Ms. Dorsey states that 

her husband believed he had elected a survivor annuity, and that she heard him inform 

OPM, during the phone call, that he had married and wished to make this provision. 

The facts are not in dispute, and credibility is not challenged. Rather, it is 

apparent that Mr. Blood did not recognize that the forms that OPM sent him did not 

provide a survivor annuity for the designated beneficiary. However, whatever error Mr. 

Blood made in deciphering the forms, his was not the only error, for these forms were 

sent to him in response to his notification to OPM requesting a survivor annuity. First, 

OPM erroneously sent him a FEGLI beneficiary designation form, although he did not 

have FEGLI insurance. Then, OPM did not notify Mr. Blood of the error when he 

returned the completed FEGLI form, thus leaving the mistake undetected. The Civil 

Service Retirement System (“CSRS”) “Designation of Beneficiary” form confusingly 

2009-3071 2
refers to a “lump sum payment,” and states that the designation “will not affect” any 

survivor annuity. And OPM never sent the correct form for electing a survivor annuity. 

Thus, in response to Mr. Blood’s phone call, OPM sent the wrong forms and Mr. 

Blood filled out and returned the wrong forms. Both sides to this unfortunate event 

erred. OPM on this appeal appears to recognize its contribution to the mistake, for 

OPM suggests that this court remand with instructions that OPM reconsider Ms. 

Dorsey’s claim. See Resp. Br. at 15 (suggesting in the alternative that “the Court to [sic] 

should remand this case to the MSPB with instructions to remand to OPM to determine 

whether Ms. Dorsey is entitled to a survivor annuity”). However, my colleagues on this 

panel decline to give Ms. Dorsey this chance. I must, respectfully, dissent. 

DISCUSSION 

The MSPB rejected Ms. Dorsey’s claim, holding that the forms Mr. Blood filled 

out did not establish an “unmistakable intent” to elect a survivor annuity. However, Mr. 

Blood’s intent to provide an annuity for Ms. Dorsey is supported by the entirety of these 

events. Although the FEGLI and CSRS beneficiary forms were incorrect, these were 

the forms that OPM sent in response to his notification of his post-retirement marriage. 

Ms. Dorsey testified that she was present when Mr. Blood phoned OPM to give notice of 

his marriage and that he wished to provide a survivor annuity for Ms. Dorsey. OPM 

does not dispute her credibility. 

Nor does OPM dispute that these were the wrong forms. Indeed, the FEGLI form 

is totally inapplicable to Mr. Blood. The other form, entitled “Designation of Beneficiary, 

Civil Service Retirement System,” is not a model of clarity. Form 2808 states: 

 I, the person identified above, designate the beneficiary or 

beneficiaries named below to receive any lump-sum benefit which may 

2009-3071 3
become payable under the Civil Service Retirement System (CSRS) after 

my death. I understand that this designation of beneficiary will not affect 

the rights of any survivors who may qualify for annuity benefits after my 

death, cancels any previous designation of beneficiary, and remains in 

effect until I cancel it in writing or I receive payment before retirement of all 

the monies to my credit in the Civil Service Retirement and Disability 

Fund. 

 I direct, unless otherwise indicated below, that if more than one 

beneficiary is named, the share of any beneficiary who may predecease 

me or who may be disqualified for any other reason shall be distributed 

equally among the stated beneficiaries or entirely to the survivor. If none 

of the beneficiaries are alive and eligible to receive payment when a lump 

sum becomes payable, this designation is void and payment will be made 

according to the order of precedence set by law. 

Perhaps Mr. Blood thought this designation of the beneficiary of a “lump-sum benefit” 

under the CSRS, and the form’s statement that the designation “will not affect” rights to 

“annuity benefits after my death,” was the way OPM administered such annuity benefits 

– for OPM sent him the form in response to his request to establish a survivor annuity. 

Based on this form Ms. Dorsey was paid a lump sum of $247.93, which was Mr. Blood’s 

accrued annuity for the month in which he died. 

The MSPB observed that the forms OPM sent to Mr. Blood “served their true 

purpose of designating beneficiaries for certain other benefits.” Dorsey v. Office of 

Personnel Mgmt., No. PH-0831-08-0541-I-1, slip op. at 5 (M.S.P.B. Oct. 8, 2008) (initial 

decision). However, that “true purpose” is obscure, for Form 2823 is for participants in 

the federal life insurance program, and served no purpose whatsoever for Mr. Blood. 

And Form 2808, which reads, at best, like a lump sum death benefit that preserves a 

survivor annuity, instead provided two days pay. 

The MSPB cites Harris v. Office of Personnel Mgmt., 985 F.2d 549, 550 (Fed. 

Cir. 1993), for the “unmistakable intent” standard it relied on. However, the court did not 

2009-3071 4
establish “unmistakable intent” as the standard of proof. Mr. Harris was a living 

annuitant who had elected a survivor annuity for his wife married after retirement, but 

then attempted to cancel the election. See id. at 549–50. Mr. Harris argued that he did 

not make a binding election because he filed an incomplete form, for he did not select a 

deposit option on the survivor annuity form. OPM rejected his argument and this court 

affirmed, stating that “[w]e have no difficulty concluding that, when Harris signed this 

form, he manifested an unmistakable intent to elect, and did elect, survivor annuity 

benefits for his new spouse.” Id. at 550. This court described the evidence, not a new 

standard of proof for survivorship election. 

Circumstances beyond the specific flawed documents can be considered, in the 

interest of achieving the correct and just result. Every indication is that Mr. Blood 

intended to provide a survivor annuity for his new spouse, for he so informed OPM 

within the proper time period, and completed the beneficiary forms that OPM provided. 

Ms. Dorsey offers the information that she and Mr. Blood were raising a four-year old 

child as their own, and Mr. Blood was desirous of assuring their support. The panel 

majority is mistaken in proposing that precedent bars any relief on the facts of this case. 

I take note of OPM’s argument that “[a] voluntary post-retirement survivor annuity 

has immediate, irrevocable and costly consequences that annuitants may not wish to 

incur,” Resp. Br. at 11, apparently proposing that Mr. Blood deliberately avoided 

providing a survivor annuity for Ms. Dorsey. But OPM’s annual notice states that “[i]n 

most cases, the actuarial reduction will be less than 5% of your annuity.” J.A. at 30. 

On the entirety of the circumstances, the election of a survivor annuity for Ms. 

Dorsey is supported by a preponderance of the evidence. At a minimum, OPM’s 

2009-3071 5
2009-3071 6

suggestion for remand for further consideration should be implemented. From my 

colleagues’ contrary ruling, I respectfully dissent.