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 divorcerelated 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 divorcerelated 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. 

05-3295 4