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 appl ication for Civil Service Retirement System (CSRS) su rvivor benefits. Because the Board did not err when it concluded that Ms. Aldrich’ s pre-May 7, 1985 divorce dat e 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. At omanuk was an employee of the Postal Service. After his death, Ms. Aldric h applied for CSRS survivor benefits. OPM denied those benefits and Ms. Aldrich appealed t hat denial to the Board. Before theBoard, Ms. Aldrich ar gued that she was enti tled to survivor benefits by virtue of an amended c ourt order dated October 1, 1987, which required Mr. Atomanuk to pay child support. The Board rejected that argument becaus e Ms. Aldrich and Mr. Atomanuk divorced prior to May 7, 1985, and the relev ant rule extends sur v ivor benefits, where those benefits are provided by c ourt order, only in the case of marriages that ended on or after May 7, 1985. Ms. Aldrich appeals. DISCUSSI ON This court possesses limited aut hority to review a Board decision. The Board’s decision must be affirmed unles s it is: (1) arbitrary, capric ious, an abuse of discretion, or otherwis e not in ac cordanc e with the law; (2) obtained witho ut procedures required by law, rule, or regulati on hav ing been followed; or ( 3 ) unsupported by substantial evidenc e. 5 U.S.C. § 7703(c) (2000); Kievenaar v. Office of Pers. Mgmt. , 421 F.3d 1359, 1362 (Fed. Cir. 2005). Issues of st atutory and regulatory construction ar e reviewed without deference. Kievenaar , 421 F.3d at 1362 (citing Billing s 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 (codif i ed as various amended sections throughout 5 U.S.C.), a former spouse had no right to survivor benefits under the CSRS. See Vallee v. Offic e of Pers. Mgmt. , 58 F.3d 613, 614-15 (F ed. Cir. 1995) . Effective May 7, 1985, the Spous e Equity Act provided entitlement to a survivor annuity to t he extent “expressly prov ided for . . . in the terms of any decree of divorce or annulment or any court order or court-approved property settlement agreement inci dent to s u ch decree.” 5 U.S.C. § 8341 (h)(1) (2000). 5 C.F.R. § 838.802(a) implements the effect ive date of the Spouse Equity Act where

05-3295 2benefits are sought based on court order in connection with a div o rce, i.e., the basis for Ms. Aldrich’s claim. T hat 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) (e mphasis added). The Board based its decis i on affirming OPM in this case on that rule. Notwithstanding 5 C.F.R. § 838. 802(a), Ms. Aldrich ar gues that t he Board erred because it ignored Va llee , in which provisions of the Spouse Equity Act were held to apply to a CSRS retiree whos e divorce occ u rred prior to May 7, 1985. Va llee , 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. Valle e at 615. Thus, Vallee did not address a situation where a fo r m er spouse sought b enefits as a result of a divorcerelated court order. Instead, Vallee concerned the notice that must be given to a retire e regarding his ability to c onfer benefits to a former spouse regardless of when the marriage ended. In this case, had Mr. At omanuk retired befor e 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 situat ion fits squarely within 5 C.F.R. 838.802(a): she is attempting to obt ain surviv o r benefits by virtue of a divorcerelated court order. B e cause Ms . Aldrich’s divorce oc curred prior to May 7, 1985, the effective date of the Spouse Equity Act, t here is no statutory bas is for awarding her survivor benefits. The fact that Mr. Atom anuk could hav e provided a survivor annuity t o

05-3295 3Ms. Aldrich had he ret i red before he died d oes not have any bearing on Ms . Aldrich’s claim. T h e Board did not err in its applic ation of 5 C.F.R. § 838.802(a) in this c a se. Therefore, this c ourt a ffirms

.

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