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Case: 23-1881 Document: 36 Page: 1 Filed: 03/18/2024
`
`NOTE: This disposition is nonprecedential.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, Washing-
`ton, 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: 2 Filed: 03/18/2024
`
`2
`
`DAVIS v. OPM
`
`Rose Kimble-Davis, the ex-wife of Harvey Kimble, a de-
`ceased federal employee, appeals the decision of the Merit
`Systems Protections Board (the “Board”) finding her not
`entitled to certain retirement benefits. Because substan-
`tial evidence supports the Board’s finding that Ms. Kimble-
`Davis 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. Kim-
`ble entered into a post-nuptial agreement, and on Septem-
`ber 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 Kim-
`ble-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) (“Deci-
`sion”).1
`Ms. Kimble-Davis also filed an application for death
`benefits, in which she stated she “may be listed as a bene-
`ficiary 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’ di-
`vorce 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 corre-
`spond 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 sup-
`plemental appendix.
`
`

`

`Case: 23-1881 Document: 36 Page: 3 Filed: 03/18/2024
`
`DAVIS v. OPM
`
`3
`
`therefore, she was still married to Mr. Kimble. OPM de-
`termined 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 estab-
`lished she was entitled to a former spouse survivor annu-
`ity. 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 di-
`vorce decree expressly provided that Ms. Kimble-Davis re-
`leased 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 jurisdic-
`tion under 28 U.S.C. § 1295(a)(9).
`
`

`

`Case: 23-1881 Document: 36 Page: 4 Filed: 03/18/2024
`
`4
`
`DAVIS v. OPM
`
`II
`“We must affirm the Board’s decision unless it was ar-
`bitrary, capricious, an abuse of discretion, or otherwise not
`in accordance with law; obtained without procedures re-
`quired by law, rule or regulation; or unsupported by sub-
`stantial 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 en-
`tered 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 di-
`vorce. Downing v. Off. of Pers. Mgmt., 619 F.3d 1374, 1377
`(Fed. Cir. 2010).
`Ms. Kimble-Davis argues on appeal that OPM’s publi-
`cations indicate that a divorce does not affect a prior desig-
`nation of a beneficiary for retirement lump sum benefits,
`and further that no one has shown she was not a desig-
`nated beneficiary. She relies in part on an OPM publica-
`tion 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: 5 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 sup-
`ported 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 enti-
`tlement [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. Kimble-
`Davis has at no point identified any evidence demonstrat-
`ing that she had been designated Mr. Kimble’s benefi-
`ciary.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 elec-
`tion 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: 6 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 consid-
`ered 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 di-
`vorce 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 argu-
`ments and find them unpersuasive. For the reasons stated
`above, we affirm the Board’s decision.
`AFFIRMED
`COSTS
`
`No costs.
`
`

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