United States Court of Appeals 

for the Federal Circuit 

__________________________ 

BILLYE D. DOWNING, 

Petitioner, 

v. 

OFFICE OF PERSONNEL MANAGEMENT, 

Respondent. 

__________________________ 

2010-3043 

__________________________ 

Petition for review of the Merit Systems Protection 

Board in DA0831090342-I-1. 

__________________________ 

Decided: September 20, 2010 

__________________________ 

BILLYE D. DOWNING, of West Columbia, Texas, pro se. 

HILLARY A. STERN, Senior Trial Counsel, Commercial 

Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, for respondent. With 

her on the brief were TONY WEST, Assistant Attorney 

General, JEANNE E. DAVIDSON, Director, and TODD M.

HUGHES, Deputy Director. 

__________________________ 
DOWNING v. OPM 2

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. 

Petitioner Billye D. Downing petitions for review of 

the final decision of the Merit Systems Protection Board 

(“Board”), which affirmed the reconsideration decision of 

the Office of Personnel Management (“OPM”) denying her 

request for former spouse survivor annuity benefits under 

the Civil Service Retirement System (“CSRS”), 5 U.S.C. 

§ 8331 et seq. Because her former husband, Randall Scott 

Downing, did not reelect former spouse survivor benefits 

for her within two years following their divorce and the 

divorce decree makes no mention of a survivor annuity, 

we affirm. 

BACKGROUND

The Downings were married on December 18, 1965. 

On July 28, 2003, Ms. Downing filed for divorce, which 

did not become final until October 2006. When Mr. 

Downing retired from the United States Department of 

the Army on March 3, 2004, he elected to provide a survivor annuity for Ms. Downing, his then current spouse. 

The instructions for the Standard Form (SF) 2801 that 

Mr. Downing filled out and signed stated: 

The reduction in your annuity to provide a survivor annuity for your current spouse stops if your 

marriage ends because of death, divorce or annulment. However, you may elect, within 2 years 

after the marriage ends, to continue the reduction 

to provide a former spouse survivor annuity for 
3 DOWNING v. OPM

that person . . . . 

On July 22, 2004, Mr. and Ms. Downing signed a 

separation agreement, referred to as a Qualified Domestic 

Relations Order (“QDRO”). J.A. 25-32. Thereafter, a 

divorce decree in October 2006 dissolved the marriage 

and specifically provided that Ms. Downing would receive 

“[o]ne-half of the Thrift Savings Plan and [o]ne-half of the 

Civil Service Retirement benefits for his retirement from 

the United States Civil Service plus [one-half] of all 

accrued interest and increase awarded or earned by TSP 

through the date funds are transferred to [her].” It did 

not mention any survivor benefits for Ms. Downing after 

Mr. Downing’s death. 

In addition to the SF 2801 form that he signed at the 

time of his retirement, in December 2006 and 2007, Mr. 

Downing received the annual notice OPM sent to all 

CSRS annuitants that explained he must make a new 

survivor annuity election within two years of divorce to 

provide survivor annuity benefits for a former spouse. 

J.A. 16-21. These notices contained the following provision: 

Survivor Annuity Election for a Former Spouse 

Eligibility and Time Limits – With some exceptions, retirees are eligible to elect or reelect a reduced annuity to provide a survivor annuity for a 

former spouse if they timely submit an election to 

OPM 1) within 2 years after the date the marriage 

ended by divorce or annulment or 2) within 2 

years after the date another former spouse loses 

entitlement to a potential survivor annuity. 

Please note that a new survivor annuity election 

is required within 2 years after the divorce if you 
DOWNING v. OPM 4

wish to provide a former spouse annuity, even if 

at retirement you elected to provide a survivor 

annuity for that spouse. The law provides for the 

continuation of a survivor reduction made at retirement after divorce if the annuitant reelects a 

survivor annuity for the former spouse within 2 

years of the divorce. Continuing the survivor reduction, by itself, does not demonstrate an unmistakable intent to make a former spouse survivor 

election. 

J.A. 19, 21. Mr. Downing did not file an election to provide Ms. Downing with a survivor annuity after their 

divorce. 

After Mr. Downing died on March 13, 2008, Ms. 

Downing filed an application with OPM seeking survivor 

annuity benefits. OPM denied Ms. Downing’s original 

request as well as her request for reconsideration. Ms. 

Downing unsuccessfully appealed the reconsideration 

decision to the Board. The administrative judge concluded that Mr. Downing did not expressly provide survivor annuity or post-death benefits to Ms. Downing in the 

divorce decree, and even if Mr. Downing intended for Ms. 

Downing to receive survivor benefits, it is not binding on 

OPM. Further, he determined that OPM adequately 

notified Mr. Downing of the requirement that he must file 

a reelection, but he did not reelect to provide his former 

wife with survivor benefits within two years of their 

divorce. Ms. Downing did not appeal this initial decision 

and it became the final decision of the Board. Ms. Downing timely petitions for review. We have jurisdiction 

pursuant to 28 U.S.C. § 1295(a)(9). 
5 DOWNING v. OPM

DISCUSSION

On appeal, Ms. Downing contends that although the 

divorce decree was “admittedly poorly written,” the QDRO 

clearly intends for her to receive former spouse survivor 

annuity benefits and she did not need to use “magic 

words” to obtain them. She also argues that Mr. Downing 

did not receive adequate notice because OPM failed to 

follow its own rules when it continued to withhold 

amounts from Mr. Downing’s annuity payments instead 

of terminating them upon divorce pursuant to 5 U.S.C. 

§ 8339(j)(5)(A).1 We address Ms. Downing’s arguments in 

turn. We note, however, that our scope of review is limited. We may only set aside the Board’s decision if 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.” 5 U.S.C. § 7703(c). 

Although Ms. Downing was entitled to survivor annuity benefits as a result of Mr. Downing’s election at retirement, that entitlement terminated when the 

Downings divorced in October 2006. See 5 U.S.C. 

§ 8339(j)(5). The law provides that a former spouse of a 

federal employee is entitled to a survivor annuity if and to 

 1 OPM states that it will refund any improperly 

withheld monies if the survivor annuity is not granted. 

The dissent states that Mr. Downing paid “the reduced 

annuity for four years with no notification that there was 

some sort of flaw in the survivorship election.” This is 

incorrect. OPM properly made deductions in accord with 

Mr. Downing’s election upon retirement until the divorce 

was final. Therefore, OPM improperly withheld monies 

for less than two years. 
DOWNING v. OPM 6

the extent a divorce decree or court order expressly provides for one, 5 U.S.C. § 8341(h)(1), or if the annuitant 

makes a new election to grant a survivor annuity within 

two years after the date on which the marriage dissolves. 

5 U.S.C. §§ 8341(h)(1), 8339(j)(3). 

First, Ms. Downing argues that she did not need to 

use “magic words” in her QDRO and divorce decree, and 

Mr. Downing clearly intended to award her former spouse 

survivor annuity benefits. Section 838.804 of Title 5, 

Code of Federal Regulations, provides that “[a] court 

order awarding a former spouse survivor annuity is not a 

court order acceptable for processing unless it expressly 

awards a former spouse survivor annuity or expressly 

directs an employee or retiree to elect to provide a former 

spouse survivor annuity” in that it must identify the 

retirement system and state that the former spouse is 

entitled to former spouse annuity or direct the retiree to 

elect to provide a former spouse survivor annuity pursuant to § 838.912. (Emphasis added). Section 838.912 

provides that “[t]he court order must contain language 

such as ‘survivor annuity,’ ‘death benefits,’ ‘former spouse 

survivor annuity under 5 U.S.C. § 8341,’ etc.” 5 C.F.R. 

§ 838.912. We set forth the framework for analyzing 

whether a court order without any magic words provides 

the survivor annuity benefit under § 8341(h)(1) in Fox v. 

Office of Personnel Management, 100 F.3d 141 (Fed. Cir. 

1996). The court must first determine whether the order 

contains a pertinent clause regarding a survivor annuity; 

second, if such a clause exists, the court “must inquire 

whether the operative terms in that clause can fairly be 

read as awarding the annuity”; and third, if it does, the 

court must “examine any evidence introduced concerning 

the marriage parties’ intent and the circumstances surrounding the execution of the document to interpret the 

clause.” Hayward v. Office of Pers. Mgmt., 578 F.3d 1337, 
7 DOWNING v. OPM

1345 (Fed. Cir. 2009) (citations and quotations omitted); 

see Fox, 100 F.3d at 146. If there is only one possible 

meaning for the term, such that it is a CSRS survivor 

annuity, then it is “expressly provided for” in the court 

order under § 8341(h)(1). Neither the QDRO nor the 

divorce decree makes reference to or contains a pertinent 

clause regarding a survivor annuity for Ms. Downing. 

Because the court order does not expressly provide Ms. 

Downing with a former spouse survivor annuity, it is 

irrelevant that Mr. Downing may have intended otherwise. 

Second, there is no dispute that Mr. Downing failed to 

file an election, providing Ms. Downing with a survivor 

annuity after their divorce. Ms. Downing argues that she 

is entitled to survivor annuity benefits because Mr. Downing, who had adult Attention Deficit Hyperactive Disorder, did not receive adequate notice of the requirement to 

reelect in light of OPM’s failure to terminate withholding 

amounts under 5 U.S.C. § 8339(j)(5)(A), and he intended 

for her to receive a survivor annuity. 

A former spouse may receive survivor annuity benefits in the absence of a new election by the annuitant if (1) 

the annuitant did not receive the required annual notice 

of his election rights under 5 U.S.C. § 8339(j), see Act of 

July 10, 1978, § 3, Pub.L. No. 95-317, 92 Stat. 382, 

amended by Reorganization Plan No. 2 of 1978, § 102, 92 

Stat. 3783 (codified as amended at 5 U.S.C. § 8339 note 

(2006) (“Annual Notice to Annuitant of Rights of Election 

Under Subsecs. (j) and (k)(2) of This Section”)), and (2) 

“there is evidence sufficient to show that the retiree 

indeed intended to provide a survivor annuity for the 

former spouse.” Hernandez v. Office of Pers. Mgmt., 450 

F.3d 1332, 1334-35 (Fed. Cir. 2006) (quoting Wood v. 

Office of Pers. Mgmt., 241 F.3d 1364, 1368 (Fed. Cir. 
DOWNING v. OPM 8

2001)). Under the facts of this case, the first prong is 

clearly not met. Mr. Downing did receive adequate notice 

that he was required to reelect with OPM, within two 

years of the divorce, to provide survivor annuity benefits 

through the form, SF 2801. Cf. Simpson v. Office of Pers. 

Mgmt., 347 F.3d 1361, 1365 (Fed. Cir. 2003) (holding that 

notice is insufficient if it does not make clear that a 

reelection after divorce is required to provide such an 

annuity for a former spouse). He filled out and signed 

this form at the time of his retirement. J.A. 33-34. He 

also received the annual notices sent to him by OPM in 

December 2006 and 2007 explaining that he was required 

to reelect within two years after the divorce to provide a 

former spouse annuity even though he elected to provide 

such a survivor annuity at retirement. J.A. 16-21.2

 2 The dissent argues that the notice Mr. Downing 

received was insufficient because the informative statement appeared on page six of the instructions for SF2801. We do not, however, rely on this notice alone. As 

we have explained, Mr. Downing further received adequate notice through the annual forms sent to Mr. Downing in December 2006 and 2007, which were sent after his 

divorce was finalized and reminded him that he was 

required to make a reelection within two years. J.A. 19, 

21 (“Please note that a new survivor annuity election is 

required within 2 years after the divorce if you wish to 

provide a former spouse annuity, even if at retirement 

you elected to provide a survivor annuity for that spouse. 

The law provides for the continuation of a survivor reduction made at retirement after divorce if the annuitant 

reelects a survivor annuity for the former spouse within 2 

years of the divorce.”). Indeed, these notices contained 

precisely the information that the dissent complains was 

not provided to him. In addition, to the extent that the 

dissent relies on the “Explanation of Benefits,” dated May 

2, 2004, to argue that OPM should send individualized 

notices to annuitants explaining their personal rights and 

responsibilities, we see no basis for such a requirement. 
9 DOWNING v. OPM

As the dissent points out, the circumstances of this 

case are unusual because Mr. Downing made an election 

for survivor annuity benefits at retirement, after Ms. 

Downing filed for divorce but more than two years before 

the divorce became final. In addition, OPM thereafter 

continued to make deductions from Mr. Downing’s annuity even though they should have automatically terminated under 5 U.S.C. § 8339(j)(5)(A). The clear statutory 

language, however, makes no exception to the requirement that a new election must be made within two years 

after the marriage dissolves where the employee received 

adequate notice. See 5 U.S.C. §§ 8341(h)(1), 8339(j)(3). 

Because Mr. Downing received the statutorily required 

notice and failed to file a new election after the date of 

their divorce, Ms. Downing is not entitled to a survivor 

annuity irrespective of Mr. Downing’s intent.3 Accordingly, Ms. Downing fails to establish that she was entitled 

to survivor annuity benefits. 

 

The “Explanation of Benefits” was sent to Mr. Downing 

more than two years before his divorce was final and 

properly informed him that upon retirement, he elected to 

provide survivor benefits to his then current spouse. 

3 The dissent urges that this case presents a question left open by our precedent in Brush v. Office of Personnel Management, 982 F.2d 1554, 1558 n.11 (Fed. Cir. 

1992), and Simpson, 347 F.3d at 1367. Those cases, 

however, arose in a context in which sufficient notice had 

not been provided to annuitants. In contrast, there was 

notice provided to Mr. Downing by way of the form he 

signed upon retirement while his divorce was pending 

and two annual notice forms that he received after his 

divorce was final. We need not reach the issue of intent 

where the annuitant did receive the required annual 

notice of his election rights under 5 U.S.C. § 8339(j). See

5 U.S.C. § 8339 note. 
DOWNING v. OPM 10

Because the Board’s decision to deny Ms. Downing’s 

request for former spouse survivor annuity benefits was 

not arbitrary, capricious, or an abuse of discretion, but 

rather is supported by substantial evidence, we affirm. 

COSTS

Each party shall bear its own costs. 

AFFIRMED 
United States Court of Appeals 

for the Federal Circuit 

__________________________ 

BILLYE D. DOWNING, 

Petitioner, 

v. 

OFFICE OF PERSONNEL MANAGEMENT, 

Respondent. 

__________________________ 

2010-3043 

__________________________ 

Petition for review of the Merit Systems Protection 

Board in DA0831090342-I-1. 

__________________________ 

NEWMAN, Circuit Judge, dissenting. 

This is the rare case in which the intention of the divorcing employee is clear, and was clearly recorded in several 

official documents. The employee Mr. Downing stated on 

his official retirement form his intention to provide a survivor annuity for Mrs. Downing, although the divorce was 

already in process. The OPM rules are designed to protect 

this intention. 

All of OPM’s requirements for a survivor annuity were 

met, including payment of the reduced annuity during the 

retiree’s life. The two-year window after the divorce, during 

which any further paperwork could be filed, had not run 

when the retiree died. Nonetheless, OPM now invokes rules 
DOWNING v. OPM 2

that are designed to protect the interests of all concerned, to 

deprive the survivor of the annuity that was designated by 

the employee, and recorded with OPM on his retirement 

form filed seven months into the divorce proceedings. My 

colleagues now hold that since Mr. Downing died before he 

repeated this survivorship election, OPM properly can 

refuse to pay the survivorship annuity. I must, respectfully 

dissent. 

This factual situation is quite different from the usual 

one, where there is a dispute between past and present 

surviving spouses of a divorced employee. Here the ailing 

employee made the formal election of a survivor annuity for 

his divorcing wife, in writing, on OPM’s retirement form, 

although the divorce procedures were in process. The 

divorce decree provided that Mr. and Mrs. Downing would 

split the reduced annuity; no mention was made in the 

decree of the survivorship arrangement, which had already 

been officially communicated to OPM. By the time the 

divorce became final OPM had been paying the reduced 

annuity for over two and a half years, reduced because of 

the survivorship election. 

The MSPB found “that the appellant notified OPM of 

the couple’s changed marital status after the time of the 

divorce,” slip. op. at 7–8, and OPM does not dispute its 

“utilization of the court order to award the appellant a 

portion of Downing’s retirement annuity (during his life),” 

id. at 11. This annuity was reduced because of the survivor 

annuity, and continued to be reduced after the divorce and 

until Mr. Downing died. However, after his death OPM 

refused to pay the survivor annuity. OPM states that Mr. 

Downing was required to make another election to pay a 

survivorship annuity to Mrs. Downing, within two years 

after the divorce. Here, Mr. Downing made his intent 

crystal clear, for he provided the survivor annuity election 
3 DOWNING v. OPM

while the divorce decree was pending. The rules invoked by 

OPM are designed to implement the intent of its retiring 

employee and to protect the interests of all involved, not to 

provide a mechanism for subverting those interests when 

upon death any oversight cannot be corrected. 

This is not a case of changed circumstances or conflicting claimants. OPM was notified, with the divorce decree, 

that the reduced annuity should be split between Mr. and 

Mrs. Downing. OPM complied with this instruction until 

Mr. Downing died, after paying the reduced annuity for four 

years with no notification that there was some sort of flaw 

in the survivorship election. Indeed, since OPM’s two-year 

window after the divorce had not run when Mr. Downing 

died, there was time to remedy this flaw during the statutory period. 

Mr. Downing’s death before the two-year window had 

closed and OPM’s continued payment of the reduced annuity after the divorce is precisely the situation that this court 

has noted “strongly suggests the elements of an estoppel 

that might be permitted through the crack left in the door 

by the language in Office of Personnel Management v. Richmond, 496 U.S. 414, 423 (1990).” Brush v. Office of Personnel Mgmt., 982 F.2d 1554, 1558 n.11 (Fed. Cir. 1992). 

Rather than view the lack of a re-election prior to death as 

fatal to the survivor annuity claim, “[t]he stronger and more 

plausible inference is that the election he had made, in 

writing in 1984, and with which he had complied in every 

respect for five years, in fact became irrevocably restated at 

the time of his death, which was within the two year period.” Id. The circumstances of Mr. Downing’s election 

compel the same conclusion. In Brush, the court decided the 

case based on a lack of notice by OPM, and did not rely on 

this ground. 
DOWNING v. OPM 4

Similarly in Simpson v. Office of Personnel Management, 347 F.3d 1361, 1367 (Fed. Cir. 2003), this court “conclude[d] that all of the notices of record are defective with 

respect to someone in Mr. Simpson’s situation,” and that it 

“need not reach Mrs. Simpson’s argument that her exhusband’s death within the two-year period after their 

divorce resulted in an unequivocal restatement of his predivorce election.” Though the notices to Mr. Downing were 

inadequate, for they were buried in fine print and were 

contravened by OPM’s actual payment of the reduced annuity after the divorce, to the extent that precedent establishes 

that the annual notice sent by OPM in fine print on the back 

of the cost of living adjustment notification suffices to inform annuitants of critical conditions affecting their annuity 

elections, it is time to reach the question left open by Brush

and Simpson that is applicable to the unique circumstances 

of these cases. I would reach that question here and, as in 

Brush and Simpson, award Mrs. Downing the annuity in 

accordance with the clearly expressed and noticed intent of 

the retiree.1

At a minimum, if Mr. Downing erred, so did OPM. Section 8339(j)(5)(A) of 5 U.S.C. provides that “[a]ny reduction 

in an annuity for the purpose of providing a survivor annuity for the current spouse of a retired employee or Member 

shall be terminated” after the marriage is dissolved. OPM 

did not comply with this provision, which could have alerted 

the Downings to any errors. OPM admits that it continued 

to pay the reduced annuity after it received a copy of the 

divorce decree that OPM now states was fatally defective in 

not reiterating the survivorship election. Nonetheless, 

 1 It is not clear whether Mr. Downing’s personal representative could have renewed the previous election after 

Mr. Downing’s death and within two years of the divorce. If 

this path had not been made known to the personal representative, a retroactive election may also be available. 
5 DOWNING v. OPM

when Mr. Downing died, a year and a half after the final 

divorce decree, OPM refused to pay Mrs. Downing the 

survivorship annuity. Mr. Downing cannot go back and 

correct the errors raised by OPM only after his death. This 

case raises the question of the role of OPM in administering 

the employment laws fairly and with humanity, in service to 

those persons who committed their lifetime to federal employment. “The National Government should be a model 

employer. It should demand the highest quality of service 

from each of its employees and it should care for all of them 

properly in return.” Pres. Theodore Roosevelt, Seventh 

Annual Message, Dec. 3, 1907, available at

http://www.presidency.ucsb.edu/ws/index.php?pid=29548. 

My colleagues on this panel stress that OPM annually 

sends retirees a boiler-plate reminder of matters that may 

warrant attention. This reminder did not make clear that 

Mr. Downing was required to make some sort of additional 

election, for the survivor annuity terms were already in 

place with OPM, and a reduced annuity was already being 

paid by OPM. When the employee has chosen to receive a 

reduced annuity in his lifetime and after his divorce in order 

to provide for a survivor, OPM’s obligation is to assure 

implementation of the employee’s intent. 

My colleagues suggest that the retirement form Mr. 

Downing signed makes clear that he must re-elect the 

survivor annuity within two years after divorce. See Maj. 

Op. at 2–3, 8. It is far from clear. The statement referred to 

appears on the sixth page of the ten pages of instructions for 

Standard Form 2801 and could not reasonably have alerted 

Mr. Downing to such a critical condition affecting his election, even if these instructions were provided. These instructions are intended to be used to complete the 

retirement form, not as notice of the need for further action 

with the final decree or within the ensuing two years. 
DOWNING v. OPM 6

Unlike Braza v. Office of Personnel Management, 598 F.3d 

1315 (Fed. Cir. 2010) (en banc), where the court held that 

the form “is explicit enough for the act of signing the form to 

evidence agreement with the terms of the form,” id. at 1320, 

the face of the form signed by Mr. Downing does not mention that the election will terminate upon divorce. 

OPM acknowledged Mr. Downing’s election of a survivor 

annuity in a personalized “Explanation of Benefits,” but did 

not state in that personalized document that his election 

would be undone by finality of his pending divorce. This 

“Explanation of Benefits,” dated May 2, 2004, contains a 

section entitled “Survivor Benefits” that lists Mrs. Downing 

as the recipient of the survivor annuity elected by Mr. 

Downing: 

SURVIVOR BENEFITS 

In the event of your death, your survivors should call our 

Retirement Information Office at: (1-888) 767-6738. 

Customers within the local Washington, DC, calling area 

must call (202) 606-0500. 

You elected to provide survivor benefits as follows based 

upon the full amount of your annuity. 

The reduction to provide survivor benefits is made from 

your basic annual annuity in retirement. There are no 

separate monthly deductions for providing survivor 

annuities. 

Surviving Spouse

Name: Billye D. 

Social Security Number: [xxx-xx-xxxx] 

Date of Birth: [xx/xx/xxxx] 

Current Gross Monthly Survivor Annuity: $2453.00 
7 DOWNING v. OPM

App. to Pet’r’s Br., Tab 4, Item No. 3. This notice did not 

contain the critical information on which OPM now relies, 

i.e., that the election would be nullified by divorce, although 

this information could easily have been included in this 

conspicuous personal notice rather than buried in the fine 

print of the 10-page general instructions to the retirement 

form among lots of inapplicable information. OPM was 

notified of the divorce, and split the (reduced) annuity 

between Mr. and Mrs. Downing—but gave no notice concerning the need to reiterate the survivor election that 

supported the reduced annuity. There was no notice that 

the “irrevocable” survivor annuity election would be revoked 

unless re-elected, even as OPM continued to implement the 

election by reducing the annuity that was paid before Mr. 

Downing’s death. Here, there had been an explicit written 

election at the time of retirement, while the divorce was 

pending. Mr. Downing’s election was irrevocable without 

Mrs. Downing’s consent, and no such consent was manifested, or included in the divorce decree or any other document. OPM’s obligation is to give effect to the clear intent of 

the retiree. Here the intent was clear. OPM’s obligation to 

Mr. Downing, and to all federal employees, is to assure that 

their intentions on retirement, and upon death, are conscientiously respected and carried out.