Denial of Survivor Annuity

In a split decision, the Merit Systems Protection Board (MSPB) upheld the Office of Personnel Management’s (OPM) denial of a survivor annuity to a surviving spouse, born and raised in the Philippines whose native language is Tagalog, and who had signed a Spouse’s Consent to a Survivor Election Form (SF-2801-2), waiving her right to a survivor annuity. Elipidia L. Braza v. OPM, 2007 MSPB 310, DC-0831-07-0165-I-1 (12/18/07). In her dissenting opinion, Member Barbara J. Sapin contended that the waiver was not knowingly signed because her husband, who had worked for the Postal Service, handled all of the family’s financial affairs, the appellant did not know how much money he earned or what credit cards he had, and had never written a check until after his death.

Approximately two months before her husband’s retirement, he took the appellant to a local bank and asked her to sign the SF-2801-2 before a notary public. Neither her husband nor the notary public explained the form and its significance which she signed because she trusted her husband, consenting to his election of “No regular or insurable interest for my current spouse.” According to the undisputed facts as set forth in the dissent, the appellant “did not have the education or financial background to understand that her signature on the OPM form would result in the relinquishment of her statutory right to a survivor annuity.” While the MSPB administrative judge (AJ) affirmed the OPM decision, citing Steele v. OPM, 57 MSPR 458 (1993), aff’d, 50 F.3d 21 (Fed. Cir. 1995) (Table), he stated that he believed that Steele was wrongly decided. The AJ asserted that appellant’s consent to waiving her survivor rights was invalid because she was not sufficiently educated to understand the effect of her action when signed the SF-2801-2, and that awarding survivor benefits was consistent with the legislative intent in passing the Civil Service Retirement Spouse Equity Act of 1984.

The dissenting opinion agreed that Steele improperly relied upon OPM v. Richmond, 496 U.S. 414 (1990), and failed to adequately address the congressional mandate that a surviving spouse is entitled to a CSRS annuity unless the entitlement is knowingly and intentionally waived. “That is, that the waiver of a statutory right requires both comprehension of the right, as well as an informed, intentional relinquishment of the right.” In addition, the dissent noted that neither Steele nor Power v. OPM, 71 F. App’x 66 (Fed. Cir. 2003), are published decisions and thus are not binding on the Board. Therefore, she “would conclude that the appellant’s consent to waiving her survivor rights was not valid because she was not sufficiently advised of the effect of her action when she signed the SF-2801-2 and did not have the educational background to otherwise understand it.”