[00:00:00] Speaker 02:
Ms.

[00:00:03] Speaker 02:
Berkovich, please proceed.

[00:00:18] Speaker 00:
Good morning.

[00:00:19] Speaker 00:
May it please the court?

[00:00:20] Speaker 00:
My name is Michelle Berkovich and I represent the appellant, the petitioner, Ms.

[00:00:24] Speaker 00:
Doreen Frost.

[00:00:25] Speaker 00:
With me is co-counsel, James Eisenman.

[00:00:27] Speaker 00:
With the court's permission, I would like to reserve two minutes for rebuttal.

[00:00:32] Speaker 00:
Your Honor, this case, timely before this court, seeks simply to ensure that OPM gives effect to William Cross's clear intent that his former spouse, Ms.

[00:00:43] Speaker 00:
Cross, to whom he was married to for over 30 years, continue to receive the survivor annuity he first selected for her upon his retirement

[00:00:52] Speaker 00:
in 2005 and intended for her to continue to receive following his divorce.

[00:00:58] Speaker 00:
This is actually a very narrow issue on appeal.

[00:01:01] Speaker 00:
It's as to whether OPM gave Mr. Cross effective notice after his March 2015 divorce.

[00:01:09] Speaker 01:
Do we review that determination in this case, the question of whether there was effective notice?

[00:01:14] Speaker 00:
Absolutely.

[00:01:15] Speaker 01:
A legal question or for fact?

[00:01:17] Speaker 01:
Is it a substantial evidence question or a legal question in this case?

[00:01:21] Speaker 00:
Absolutely, Your Honors.

[00:01:22] Speaker 00:
In this case, it is a substantial evidence issue.

[00:01:25] Speaker 00:
I believe there's also an importance with the law, because there is also a question here.

[00:01:30] Speaker 00:
And I believe the board did not apply the correct burdens of proof in this case.

[00:01:38] Speaker 00:
Because OPM had an obligation to provide notice.

[00:01:42] Speaker 00:
And it failed.

[00:01:43] Speaker 01:
It's annual notice, right?

[00:01:44] Speaker 00:
Correct.

[00:01:45] Speaker 00:
Annual notice.

[00:01:46] Speaker 00:
And the key thing is, is consistent with the court's decision, that annual notice really is important when it comes after the divorce.

[00:01:55] Speaker 00:
That is when this right to election triggers.

[00:01:59] Speaker 00:
Because when divorce generally terminates prior elections of survivor benefits, an annuitant then has a two-year window to reinstate or continue a survivor benefit for now former spouse.

[00:02:11] Speaker 01:
What is the evidence that the board relied on to show that annual notice was received in this case?

[00:02:18] Speaker 01:
What is all the evidence?

[00:02:20] Speaker 00:
All the evidence, Your Honors, is a 2012 document that Ms.

[00:02:26] Speaker 00:
Cross found in a burn pile after Mr. Cross' death.

[00:02:31] Speaker 00:
And that, I think, is really the key point here.

[00:02:34] Speaker 00:
That notice cannot be the type of evidence that is sufficient to carry OPM's burden.

[00:02:42] Speaker 00:
It is very clear under this court's precedent that it's OPM who must prove that Mr. Cross received effective notice and received that notice after the divorce, i.e.

[00:02:52] Speaker 00:
the triggering event or that right of election.

[00:02:56] Speaker 00:
Consistent with Downing, Briggs, Harrison, and Simpson, there's very clear ways in which OPM can carry its burden.

[00:03:05] Speaker 00:
And this is a two-part burden.

[00:03:06] Speaker 01:
Is it a burden to prove or a burden of production?

[00:03:10] Speaker 01:
You know, it might be because they are, you can see how they're in the best position to show in fact that here is evidence showing that we provided annual notice, so a burden of production, even if it's not the burden of proof.

[00:03:23] Speaker 00:
Right, and absolutely.

[00:03:23] Speaker 00:
Dating back to Brush, in 1992, this court has held, Your Honor, that that two-part burden from OPM, it is a burden of production.

[00:03:32] Speaker 00:
They are in the best position to produce that.

[00:03:35] Speaker 00:
But it's also an essential element

[00:03:38] Speaker 00:
of OPM's case because once Ms.

[00:03:42] Speaker 00:
Cross makes an allegation that Mr. Cross did not receive that notice, OPM has to prove, one, that it sent the notice and, two, the contents of that notice.

[00:03:54] Speaker 00:
So that's an evidentiary question, but it's also a very important legal burden for OPM to meet because of the importance of that notice obligation.

[00:04:05] Speaker 01:
Why isn't it enough, and the board here said that 2012 notice was enough to show that annual notice had been provided.

[00:04:14] Speaker 01:
Why, in your view, is that not substantial evidence?

[00:04:18] Speaker 00:
So it's not substantial evidence because, so first, to answer that question, I'd like to take a step back and start with what this court has found to constitute sufficient evidence.

[00:04:28] Speaker 00:
What is that?

[00:04:30] Speaker 00:
What are we supposed to see?

[00:04:32] Speaker 00:
We're supposed to see, generally speaking, it has to be more than a mere letter.

[00:04:36] Speaker 00:
It has to be, OPM generally provides an affidavit of the person familiar with the annual notices saying how they're sent out and the master roll, a copy of the notice sent in the relevant year, and some sort of evidence in the files from which we can judge a notice was actually sent.

[00:04:52] Speaker 00:
Here, OPM and the judge point to the 2012 document as being sufficient to meet that order.

[00:04:59] Speaker 00:
And there's four reasons why that notice is not sufficient.

[00:05:02] Speaker 00:
So the first is relevant.

[00:05:04] Speaker 00:
Under Harrison, this court has held that the relevant notice is the first notice received after the divorce.

[00:05:10] Speaker 00:
The contents of a pre-divorce notice are not sufficient or relevant.

[00:05:14] Speaker 00:
The notice is important only after that right to election triggers.

[00:05:19] Speaker 00:
The 2012 document.

[00:05:20] Speaker 01:
What if in this, I'm going to test what you just said.

[00:05:24] Speaker 01:
So what if the notice was received in January and the divorce occurred in March?

[00:05:30] Speaker 01:
Why wouldn't that be sufficient notice?

[00:05:32] Speaker 01:
That's not the facts in this case, but I'm just testing your hypothesis that it's the notice that comes after the divorce that's so important.

[00:05:39] Speaker 01:
What if it was a notice that was just a couple months before the divorce?

[00:05:43] Speaker 00:
I think that does raise a good question, but this court has been very clear in all of its prior cases.

[00:05:49] Speaker 00:
Again, looking to Simpson-Briggs, the court has never looked for pre-divorce notice to determine the sufficiency.

[00:05:56] Speaker 00:
And I think that makes sense, given there's cases where OPM's given conflicting information either before or after a divorce.

[00:06:03] Speaker 00:
The right to an election is not triggered until that divorce is finalized.

[00:06:07] Speaker 00:
In this situation, perhaps there would be a question

[00:06:11] Speaker 00:
of notice had been received in 2015 around the time of the divorce.

[00:06:15] Speaker 00:
But unfortunately, that's not the case here and there's no evidence at all from OPM to indicate that anything was sent at any time in 2015.

[00:06:23] Speaker 00:
And I say that in this case because the divorce proceedings started in late 2014, but they were not at all finalized until 2015.

[00:06:34] Speaker 00:
endowing the court look to a form that was filled out during the divorce proceeding that contains some notice.

[00:06:40] Speaker 02:
So counsel, in the appendix, we have a copy of his 2005 election.

[00:06:47] Speaker 02:
That is the election in which he

[00:06:51] Speaker 02:
chooses to accept a reduced annuity in exchange for dispelful survivor benefits.

[00:06:59] Speaker 02:
That's at page 62 of the appendix.

[00:07:01] Speaker 02:
That's in 2005.

[00:07:02] Speaker 02:
Is that the only election Mr. Cross ever made?

[00:07:06] Speaker 02:
Or upon receiving annual notice, is he required to reaffirm, reelect?

[00:07:13] Speaker 02:
What happens?

[00:07:16] Speaker 02:
The government has asserted that he received notice annually.

[00:07:19] Speaker 02:
The only proof of any such thing is some 2012 document, which we don't even seem to have in the record.

[00:07:25] Speaker 02:
So I have no idea what it even looks like.

[00:07:27] Speaker 02:
But the question is, right now to you, is this the only thing he ever filled out indicating his intent to ensure annuity benefits for his then-wife, Miss Cross?

[00:07:45] Speaker 02:
Or actually, yeah, they were separated at that point, but still a wife.

[00:07:49] Speaker 02:
Or does the annual notice come with a requirement that he respond?

[00:07:54] Speaker 00:
No, Your Honor, that annual notice does not come with a requirement.

[00:07:57] Speaker 00:
To answer your question, this form in Appendix 62, that's the SF 3107, is the only place where Mr. Cross has made an election.

[00:08:07] Speaker 00:
The form states that election is irrevocable, and no change is going to be permitted after his annuity is granted.

[00:08:14] Speaker 00:
There's four choices, one of which is a reduced annuity with maximum survivor annuity for my spouse.

[00:08:23] Speaker 00:
And Mr. Cross initialed and signed that box right there.

[00:08:28] Speaker 00:
That box does not contain any information about what might trigger that election to dissipate, to become no longer valid.

[00:08:38] Speaker 00:
the testimony offered a hearing from Mrs. Cross and their daughter.

[00:08:43] Speaker 00:
Mr. Cross believed that that was an irrevocable one-time election.

[00:08:47] Speaker 00:
He had not been required any time.

[00:08:50] Speaker 02:
I mean, is it by law irrevocable?

[00:08:51] Speaker 02:
Why would he be given notice annually if this is irrevocable?

[00:08:55] Speaker 00:
The reason why there's annual notice is to remind employees

[00:09:01] Speaker 00:
because there are essentially these change circumstances that will trigger a new election, primarily death of the person for whom you've elected a survivor annuity, divorce or remarriage.

[00:09:13] Speaker 00:
There's a two-year window for reelection of a survivor annuity upon divorce or remarriage.

[00:09:21] Speaker 00:
That annual notice serves, you will presumably get two of those annual notices within that window.

[00:09:29] Speaker 00:
to remind you once that election right is triggered.

[00:09:32] Speaker 00:
But until there's an election right that's triggered, the annual notice that you're going to be getting is not really relevant.

[00:09:38] Speaker 00:
You've made an irrevocable election.

[00:09:40] Speaker 00:
OK.

[00:09:40] Speaker 00:
Tie your hands to the podium.

[00:09:43] Speaker 02:
But apart from that, what happens?

[00:09:45] Speaker 02:
So I guess the problem I have with the rule that you're proposing, or the standard for applicability, is that you would like for us to determine that

[00:09:58] Speaker 02:
No notice was given here, even assuming he received notice in December of 2014.

[00:10:04] Speaker 02:
Suppose he received notice every December.

[00:10:07] Speaker 02:
You would like a rule of law that requires notice to be given by OPM after the qualifying life event in order for it to be effective.

[00:10:17] Speaker 02:
Is that correct?

[00:10:19] Speaker 02:
That is correct, Your Honor, yes.

[00:10:20] Speaker 02:
How is OPM supposed to know about the qualifying life event?

[00:10:24] Speaker 02:
Did he have an obligation or did he report to them his divorce?

[00:10:27] Speaker 02:
Because how would OPM ever know that somebody died who was the beneficiary named or the spouse named or that they are now divorced?

[00:10:38] Speaker 02:
How would OPM know in order to provide that notice?

[00:10:42] Speaker 00:
So, Your Honor, that's an excellent question.

[00:10:44] Speaker 00:
As part of the annual notice that OPM is supposed to send out every year, there's a molded box that says you should contact OPM at this number in the event of death, divorce of the spouse.

[00:10:55] Speaker 00:
And that number is also in the booklet that you get at the time of retirement.

[00:11:00] Speaker 00:
Generally speaking, when an employee dies, sometimes it takes a few months to notify OPM.

[00:11:05] Speaker 00:
But the reason why that annual notice is important, it's for two parts.

[00:11:10] Speaker 00:
Both you have the instructions on how to contact OPM and you also have, you're reminded that you now have a triggering event.

[00:11:18] Speaker 02:
But that's the annual notice.

[00:11:19] Speaker 02:
I understand your arguments to be twofold.

[00:11:25] Speaker 02:
The first is that there is no adequate notice because even if notice had been presented in December of 2014, that would be insufficient

[00:11:34] Speaker 02:
because notice has to be given after the divorce in order for him to have an opportunity to make the proper election.

[00:11:42] Speaker 02:
I'm having trouble with that argument.

[00:11:44] Speaker 02:
Your secondary argument, I understand, is that in this case, there isn't even any evidence that notice was provided on December in 2014 or 2013.

[00:11:54] Speaker 02:
The only evidence of notice was actually the evidence cross-introduced, which goes all the way back to 2012.

[00:12:02] Speaker 02:
And I also understand you to have argued for there to be an argument or an understanding that in cases like this, normally OPM introduces declarations or other evidence that would substantiate notice.

[00:12:17] Speaker 02:
And none of that is present here.

[00:12:19] Speaker 02:
Is that correct?

[00:12:19] Speaker 00:
That is correct, yes.

[00:12:20] Speaker 02:
So that's a very narrow argument.

[00:12:23] Speaker 02:
And I understand that argument completely.

[00:12:25] Speaker 02:
I want to understand the basis for the broader argument you make, and in particular,

[00:12:31] Speaker 02:
How could we conclude that a post-divorce notice is necessary when OPM is not necessarily aware of any divorces or deaths or anything else?

[00:12:46] Speaker 00:
Well, to answer your question, generally speaking, that requirement is met through this automatic, through this dual timeline.

[00:12:54] Speaker 00:
One, you have the annual notices.

[00:12:56] Speaker 00:
Two, you have a two-year window.

[00:12:58] Speaker 00:
Here, through an accident of death, the two-year window

[00:13:01] Speaker 00:
passed prior to the notice and the expiration.

[00:13:04] Speaker 00:
But this annual notice is really a statutory requirement.

[00:13:09] Speaker 00:
And the issue is for the employee to note that right of election does not trigger until the qualifying event.

[00:13:15] Speaker 00:
And that's the only time when that notice becomes important.

[00:13:18] Speaker 00:
So if an employee doesn't receive notice at the time that right to election arises, I do think that becomes kind of a very serious question here because the employee... But how would OPM notice end of notice?

[00:13:29] Speaker 02:
Well, I think, how are they supposed to know he got divorced?

[00:13:32] Speaker 02:
How are they supposed to know that maybe the beneficiary elected on the forum has died?

[00:13:37] Speaker 02:
And why would we create a rule of law that puts that onus on them?

[00:13:41] Speaker 02:
It would be one thing if, in this instance, he, if there was some evidence to suggest he contacted OPM to inform them of a qualifying event and asked them how that affects his circumstances.

[00:13:54] Speaker 02:
But that's not the case.

[00:13:56] Speaker 00:
I think the case here is Mr. Cross believed he made an irrevocable relection.

[00:14:02] Speaker 00:
He had completed all of his requirements economically by paying into that survivor annuity and continuing to receive a reduced annuity following his death.

[00:14:11] Speaker 01:
Counsel, can I just ask you, your argument, your case doesn't rise and fall with this legal argument, right?

[00:14:17] Speaker 01:
I mean, you're relying on Harrison, I think, which has some language about it's the first notice received after the divorce that matters in that context of that case.

[00:14:26] Speaker 01:
And you're making a legal rule out of that, right?

[00:14:29] Speaker 01:
But you have an alternative argument, don't you?

[00:14:31] Speaker 01:
Which is what Judge Moore referred to, which is more of a, is there substantial evidence to support that annual notice even occurred here?

[00:14:39] Speaker 00:
Correct.

[00:14:40] Speaker 00:
And I think in this case, we don't even need to necessarily reach that divorce rule because OPM

[00:14:46] Speaker 00:
Because there's not substantial evidence that 2012 notice is received three years before divorce.

[00:14:54] Speaker 00:
It is in small print.

[00:14:56] Speaker 00:
I've seen the documents in small print on the back of a COLA notice.

[00:15:00] Speaker 00:
On the other side, it says something about tax notices are starting to be sent electronically.

[00:15:05] Speaker 00:
Without evidence from OPM as to confirming what notice was sent out, the contents of that notice, and whether that 2012 document was the notice, we're not even sure.

[00:15:16] Speaker 00:
We don't even have the necessary assurances to analyze that 2012 document and determine whether it was notices at all.

[00:15:24] Speaker 00:
That's why the burden of proof is so important.

[00:15:27] Speaker 00:
OPM is in the position to prove that.

[00:15:30] Speaker 00:
We only have Mrs. Cross's third-hand search of a burn pile.

[00:15:35] Speaker 00:
We can't talk to Mr. Cross.

[00:15:36] Speaker 00:
He's sadly passed.

[00:15:39] Speaker 02:
Okay, Council, do you want to save some time for rebuttal?

[00:15:42] Speaker 02:
Oh, yes, ma'am.

[00:15:43] Speaker 02:
Okay, very good.

[00:15:43] Speaker 02:
Let's hear from the government.

[00:16:17] Speaker 03:
Good morning, and may it please the court.

[00:16:19] Speaker 03:
Although Mrs. Cross is an unfortunate victim of bad timing, there is no legal basis here on which to grant her survivor annuity benefits.

[00:16:29] Speaker 04:
Is it Chris Day or Christie?

[00:16:32] Speaker 03:
Christie.

[00:16:32] Speaker 04:
Christie.

[00:16:34] Speaker 04:
OK.

[00:16:34] Speaker 04:
Thank you.

[00:16:34] Speaker 04:
I have a question.

[00:16:35] Speaker 04:
There's evidence in the, I guess, in the Du Bois case, which is in our federal appendix.

[00:16:43] Speaker 04:
But I'm just, it's a federal appendix case, non-precedential.

[00:16:47] Speaker 04:
But there, there was evidence from Mr. Benson to the effect that in December of each year, the notice is sent out.

[00:16:56] Speaker 04:
And I think in this case, at appendix four, the AJ found that the notice that was found, the 2012 notice, was in December.

[00:17:09] Speaker 04:
Should we take it as a given that it's, for purposes of this case, that it's the practice of OPM to send these notices out each December?

[00:17:19] Speaker 03:
Yes, that is correct, Your Honor.

[00:17:21] Speaker 04:
Even though it's not enshrined in a rule or regulation, we can understand for purpose of this case that December is when the notices go out.

[00:17:30] Speaker 03:
That is correct.

[00:17:30] Speaker 04:
Okay.

[00:17:32] Speaker 02:
Where's the evidence of that?

[00:17:34] Speaker 03:
In this case?

[00:17:37] Speaker 03:
OPM, as Your Honor stated, OPM did not provide an affidavit in this case explaining that it provides annual notice in December.

[00:17:46] Speaker 03:
However, that is OPM's general practice.

[00:17:49] Speaker 03:
Where is the evidence?

[00:17:51] Speaker 02:
We decide cases based on evidence, not attorneys telling me what agencies generally do.

[00:17:56] Speaker 03:
And that is in that 2012 notice that was provided to Mr. Cross that Mrs. Cross turned over.

[00:18:02] Speaker 01:
What exactly is that 2012 notice showing other than the fact that in December of 2012, notice was provided?

[00:18:13] Speaker 03:
There's an excerpt from the notice on Appendix Page 5, and that

[00:18:20] Speaker 03:
particular that particular section

[00:18:27] Speaker 03:
is the relevant language here.

[00:18:29] Speaker 03:
And that language is italicized in the middle of that paragraph.

[00:18:36] Speaker 03:
And essentially it states, please note a new election is required within two years after divorce.

[00:18:41] Speaker 01:
So I don't really have a problem with the language here.

[00:18:45] Speaker 01:
I do think it provides notice.

[00:18:48] Speaker 01:
My concern is I don't see how one notice dated December 2012

[00:18:57] Speaker 01:
proves that notice was provided annually.

[00:19:02] Speaker 01:
Maybe if there were five years, maybe if there was eight years of notice in the record, but here we have one year, no affidavit or anything else.

[00:19:11] Speaker 03:
According to Brush v. OPM, OPM has the burden of showing that it is more probable than not that annual notice was sent.

[00:19:19] Speaker 03:
And the administrative judge at the MSPB determined that this notice from 2012, because it was found in one of Mr. Cross's burn piles, it was highly likely that he had simply burned the notices from previous years.

[00:19:35] Speaker 02:
But a fact-finding has to be based on evidence.

[00:19:39] Speaker 02:
There's no evidence of any of that.

[00:19:40] Speaker 03:
I believe that MSVD based on the evidence that because Mrs. Cross provided that notice and really this brings me to a point.

[00:19:50] Speaker 02:
Because she provided a notice from 2012 with nothing else attached and the fact that it was in a burn pile, that is evidence that supports a fact finding that he received notices in 2013 and 2014 and actually burned them.

[00:20:03] Speaker 02:
That is substantial evidence

[00:20:06] Speaker 02:
That is what MSPB found.

[00:20:09] Speaker 02:
I just want to hear you tell me it's substantial evidence because it's hard for me to imagine you could stand there with a straight face and say it.

[00:20:18] Speaker 02:
So go ahead.

[00:20:19] Speaker 02:
Is that substantial evidence for a fact finding that he received notice in 2013 and 2014 and that he burned them?

[00:20:28] Speaker 04:
and yes we do believe that you didn't look at me when you said it by the way I'm sorry yes we do believe that is substantial evidence wow particular I think it's not your fault I think the difficulty you have here is and it's been highlighted by the colloquy you've had with the chief and Judge Stoll I think the difficulty here is that the

[00:20:56] Speaker 04:
the December 2012 notice that was found is not accompanied by the sort of evidence that we had in the Du Bois case and the Briggs case, where OPM presented testimony from a representative, this gentleman.

[00:21:11] Speaker 04:
I don't know if he's still there.

[00:21:12] Speaker 04:
This is Mr. Benson, who said that the notices were sent out in December.

[00:21:18] Speaker 04:
I think in that situation,

[00:21:20] Speaker 04:
You probably would have the substantial evidence, but I think the difficulty you have, and it's not your fault obviously, is that you don't have that here.

[00:21:32] Speaker 04:
And without that, aren't you asking us respectfully to kind of go a bridge too far without the Benson-type testimony?

[00:21:41] Speaker 03:
No, Your Honor, because in other cases where OPM did provide an affidavit and the court determined that there was no notice, there was evidence from appellant that none had been received.

[00:21:56] Speaker 03:
So for example, in, I believe it was Simpson, Mr. Simpson kept meticulous records and receipts of important documents that he received.

[00:22:08] Speaker 03:
OPM provided an affidavit, but

[00:22:10] Speaker 03:
within Mr. Simpson's records, absolutely no notices were found.

[00:22:16] Speaker 03:
And so this issue of annual notice really only comes up where appellant makes the claim that the annuitant never received notice or that notice was legally deficient.

[00:22:27] Speaker 03:
And here, Mrs. Cross has not argued

[00:22:30] Speaker 03:
that Mr. Cross did not receive the notice.

[00:22:32] Speaker 03:
The only statements Mrs. Cross has made is that the notice was not clear and it may have been confusing to Mr. Cross.

[00:22:41] Speaker 03:
And she has made no allegation that the sentence is confusing or that the notice does not provide the pertinent information.

[00:22:49] Speaker 03:
And according to Simpson and Briggs, this notice does, in fact, provide that required information.

[00:22:56] Speaker 03:
Ms.

[00:22:56] Speaker 04:
Christie, let me ask you one other question that is sort of piddling around in my mind here.

[00:23:03] Speaker 04:
We know that the notices go out annually, right?

[00:23:05] Speaker 04:
And they have to.

[00:23:08] Speaker 04:
So for the moment you have this hypothetical, A and B are married.

[00:23:15] Speaker 04:
A is the husband.

[00:23:17] Speaker 04:
B is the spouse.

[00:23:19] Speaker 04:
A divorce decree is entered on March the 1st, and then with no election by A for survivor benefits to B. And then on March 2, A dies the day after the divorce decree.

[00:23:42] Speaker 04:
There's no election.

[00:23:43] Speaker 04:
What happens in that case?

[00:23:44] Speaker 03:
In that case, the surviving spouse would not receive those benefits because there is simply no provision in the law to provide those benefits.

[00:24:01] Speaker 04:
Under the statute... So what if no notice has been provided that year?

[00:24:05] Speaker 03:
then that would be a different situation.

[00:24:08] Speaker 03:
If no notice had been provided in the previous December, then I believe in Hairston, the court did look at that situation where notice prior to the divorce was unclear.

[00:24:21] Speaker 03:
And really, OPM, going to a different wall.

[00:24:28] Speaker 04:
So what you're saying is, in other words, even though

[00:24:32] Speaker 04:
the notice was in a prior calendar year, it would surprise in that situation.

[00:24:40] Speaker 03:
Yes, because there is no requirement that OPM understand, well, know when life events have happened and provide notice.

[00:24:50] Speaker 02:
But I thought there was a legal requirement that OPM provide annual notice.

[00:24:54] Speaker 03:
In fact that legal requirement is in five USC To know a 39 note.

[00:25:02] Speaker 03:
Yes, and it really only applies to civil service retirement

[00:25:07] Speaker 03:
retirees and Mr. Cross here was under the federal employee retirement benefit.

[00:25:15] Speaker 03:
That's what he retired under and there is no statutory requirement in the FERS to provide such annual notice.

[00:25:23] Speaker 03:
In Becker versus OPM, this is a case from 2017.

[00:25:26] Speaker 02:
Did you argue in your brief that there is no statutory requirement to provide annual notice?

[00:25:31] Speaker 02:
No, we did not.

[00:25:33] Speaker 04:
Yeah, there's an OPM reg that requires notice.

[00:25:37] Speaker 03:
Yes.

[00:25:38] Speaker 03:
There is no statute here.

[00:25:39] Speaker 01:
You did not argue any presumption of regularity also below before the board.

[00:25:44] Speaker 01:
Instead, the board made a fact-finding, right?

[00:25:47] Speaker 03:
Yes, the board did make a fact-finding and cited two Schumacher's versus OPM and stated that, well, in Schumacher's, the court stated that the burden shifts to appellate to show evidence of non-receipt.

[00:26:01] Speaker 03:
And here, Mrs. Cross provided evidence of receipt with that 2012 notice.

[00:26:10] Speaker 03:
Now, oh, I apologize.

[00:26:24] Speaker 03:
Now, Mrs. Cross also argued that he, again, he did not receive, Mr. Cross did not receive this notice before he died.

[00:26:33] Speaker 03:
But there is no requirement that OPM provide this notice immediately following life events.

[00:26:39] Speaker 03:
And OPM cannot predict when somebody will die.

[00:26:42] Speaker 03:
This is why this notice goes out annually in December.

[00:26:46] Speaker 04:
I guess the situation here is they go out, assume that they go out every December.

[00:26:54] Speaker 04:
You have a two-year time frame within which to make your election following the divorce decree, correct?

[00:27:02] Speaker 04:
Yes, that is correct.

[00:27:03] Speaker 04:
So presumably, even if the divorce was in the next year, there would be in the normal course of events, assuming the annuitant continued to live, that you'd have enough time.

[00:27:18] Speaker 04:
There'd be a notice during the two-year period.

[00:27:21] Speaker 03:
That is correct.

[00:27:22] Speaker 03:
Yes, Your Honor.

[00:27:24] Speaker 03:
And according to Harrison, the question is not whether the employee received a notice immediately following.

[00:27:34] Speaker 03:
The question is, did the notices surrounding the election period provide those requirements for election?

[00:27:43] Speaker 03:
Was it clear?

[00:27:44] Speaker 03:
And there was a case, Beckstead versus OPM, where

[00:27:52] Speaker 03:
The court stated that it is evident that since these cases referring to Simpson, Wood, and Harrison, OPM has addressed... What was that case?

[00:28:01] Speaker 03:
Baxter v. OPM and it's... Yeah, what's the site for it?

[00:28:06] Speaker 03:
It's 842 Fed, 8PPX 578 and it's... 842 what?

[00:28:14] Speaker 03:
Federal Appellates.

[00:28:16] Speaker 04:
Federal Appendix?

[00:28:17] Speaker 03:
Yes.

[00:28:18] Speaker 04:
Okay, 842 Federal Appendix.

[00:28:21] Speaker 03:
578.

[00:28:21] Speaker 03:
Okay.

[00:28:23] Speaker 03:
And this is from 2001.

[00:28:27] Speaker 02:
In the Brush case, I understand the court to be making it OPM's burden to show it complied with the notice requirements.

[00:28:38] Speaker 02:
Is that fair?

[00:28:40] Speaker 02:
Yes.

[00:28:42] Speaker 02:
So how did OPM

[00:28:44] Speaker 02:
Satisfy its burden to establish that it complies with the annual notice requirement in this case Yes Again OPM did not provide an affidavit however

[00:29:01] Speaker 02:
the notice from 2012 and the fact that there's something in the notice from 2012 we only have the snippet right so I'm assuming you've seen hopefully you've seen the full version of it is there something in it that indicates for example this notice is provided annually for example something like that I'm not sure I haven't seen the full notice I cannot answer that question but

[00:29:29] Speaker 03:
because there was that 2012 notice and the presumption that Mr. Krach had burned the other notices.

[00:29:39] Speaker 02:
What presumption?

[00:29:41] Speaker 02:
A presumption he burned the other notices?

[00:29:43] Speaker 02:
Where did that presumption come from?

[00:29:44] Speaker 03:
That was what the MSPB stated it.

[00:29:47] Speaker 01:
Was there any evidence that he burned it?

[00:29:49] Speaker 01:
I mean, did anyone testify to that?

[00:29:51] Speaker 01:
Did anyone say that?

[00:29:52] Speaker 01:
Other than the fact that it was in something marked burn.

[00:29:56] Speaker 01:
And it was 2012, not 2013 or 2014.

[00:29:58] Speaker 01:
It was older than that.

[00:30:02] Speaker 03:
I don't believe Mrs. Cross stated specifically that the other notices were burned, but she did state that

[00:30:11] Speaker 03:
she found this notice in a burn pile and that Mr. Cross's practice was to burn documents.

[00:30:18] Speaker 01:
I don't think there's any testimony where she said that other notices were burned.

[00:30:23] Speaker 01:
Are you aware of any?

[00:30:25] Speaker 01:
I have not seen any.

[00:30:26] Speaker 01:
No, I know.

[00:30:27] Speaker 03:
Okay.

[00:30:28] Speaker 03:
That's correct.

[00:30:35] Speaker 03:
And just quickly going to the point of the required notice.

[00:30:41] Speaker 03:
Yes, OPM must show that it sent accurate annual notices in the relevant two-year election period, but two cases, Bellinger and Darsigny.

[00:30:50] Speaker 03:
Don't go specifically to this question of whether the

[00:30:56] Speaker 03:
employee passes away before receiving notice.

[00:30:59] Speaker 03:
However, in Bellinger, the court held that OPM could not have violated its notice provision due to Mr. Bellinger's death.

[00:31:09] Speaker 03:
In Darcygni, the court stated that there is no intent in the legislative history to provide that a survivor must be

[00:31:26] Speaker 03:
The court determined the election was only for those alive to exercise it.

[00:31:30] Speaker 04:
Ms.

[00:31:30] Speaker 04:
Christie, let me answer.

[00:31:33] Speaker 04:
Go ahead.

[00:31:33] Speaker 04:
I just want to ask one, because your time is just about up.

[00:31:37] Speaker 04:
In a situation where it's determined that a notice was not received, there still must be evidence in the record and a finding to the effect that it was the desire or the intent or the wish of the deceased annuitant to provide a pension or a benefit for his

[00:31:58] Speaker 04:
former spouse.

[00:32:00] Speaker 04:
I assume that in this case there's no dispute on that point because the AJ found I think in his decision that I think there's something to the effect it's clear from the record that Mr. Cross intended for Mrs. Cross to receive the benefit.

[00:32:16] Speaker 04:
Is that correct?

[00:32:17] Speaker 02:
Yes.

[00:32:17] Speaker 04:
Okay so that's not an issue we can accept that.

[00:32:20] Speaker 04:
That's correct.

[00:32:21] Speaker 02:
What if anything should we read in I'm very sympathetic as you no doubt gathered to

[00:32:28] Speaker 02:
the idea that it would be quite difficult for us to impose on OPM a burden to become aware of when people divorce or become aware of when survivor beneficiaries die in order to therefore present that individual with notice.

[00:32:49] Speaker 02:
So obviously, I think that to me would be a sort of troubling situation to create.

[00:32:55] Speaker 02:
But what would have happened if Mr. Cross had contacted OPM upon his divorce and said, I'm now divorced.

[00:33:09] Speaker 02:
I'm continuing to receive a reduced annuity for survivor benefits, but now there's no one to receive those survivor benefits because I don't have a spouse any longer and I don't want to elect anyone else.

[00:33:23] Speaker 02:
Would he immediately have been able to have a fuller pension at that point?

[00:33:28] Speaker 02:
Is that what happens when you become divorced?

[00:33:32] Speaker 02:
The reason you're getting the lower pension is so that your spouse could continue to receive a pension if you pre-decease.

[00:33:38] Speaker 02:
But if he no longer has a spouse and he wants the full pension for himself, is that something he could choose to do?

[00:33:45] Speaker 03:
I believe he would have to make that election in writing.

[00:33:47] Speaker 03:
He would have had to submit that in writing to OPM.

[00:33:51] Speaker 03:
I don't believe a call is sufficient.

[00:33:53] Speaker 03:
Had he made an election to receive his full benefits, I believe that would go to the question of intent because

[00:34:06] Speaker 03:
here, Mr. Cross did elect to receive reduced benefits and that did go towards showing that he had intent to.

[00:34:13] Speaker 02:
I know, it just seems, one of the things that I've been trying to wrestle with is it seems weird to me that he's continued, that OPM is arguing on the one hand that there is no beneficiary who is qualified to be an annuitant

[00:34:32] Speaker 02:
And yet he was receiving less than his full pension solely because he had executed an election that would allow for survivor benefits.

[00:34:42] Speaker 02:
So do you see the sort of it seems to be fundamentally unfair that his pension is continuing to be reduced

[00:34:50] Speaker 02:
for the reason that he would assume somebody would receive survivor benefits, and now OPM is saying, okay, well, we're not going to give back the difference in pay, and we're also not going to give you the survivor benefits.

[00:35:03] Speaker 02:
That kind of seems just a tiny bit unfair.

[00:35:07] Speaker 02:
I'm not sure what to do with it, but it seems troubling.

[00:35:11] Speaker 03:
And that issue has come up in other cases where

[00:35:14] Speaker 03:
employees did elect to receive those reduced benefits.

[00:35:20] Speaker 03:
And in cases where annual notice was found to have been received and to have been sufficient, the court still determined that the survivor was not entitled to those benefits.

[00:35:38] Speaker 02:
and not entitled retroactively to the difference in his own pension that he would have received.

[00:35:43] Speaker 02:
Do you understand what I'm saying?

[00:35:44] Speaker 02:
Like if he continued to get less money each month than he was entitled to in exchange for the promise of survivor benefits.

[00:35:53] Speaker 02:
Once OPM says you're no longer entitled to the survivor benefits shouldn't they at least have had to go back and retroactively given him the difference in pension between the reduced amount he took and what he should have gotten.

[00:36:05] Speaker 02:
Oh, I see.

[00:36:06] Speaker 02:
Even though he's dead, it would go to his estate or something.

[00:36:10] Speaker 02:
I don't know.

[00:36:12] Speaker 02:
You're not prepared to answer, and I'm not going to put the government on the hook for something like that.

[00:36:16] Speaker 02:
It just seems so fundamentally unfair that he continued to pay a reduced amount, so OPM didn't have to pay out the full value of his pension to him.

[00:36:28] Speaker 02:
There's no doubt the purpose for that was to secure benefits for someone else.

[00:36:32] Speaker 02:
And then OPM says, OK, well, we paid you less, but now we're not giving anyone benefits.

[00:36:37] Speaker 03:
My understanding is that the amount that was reduced would have gone to his ex-wife, Mrs. Cross.

[00:36:43] Speaker 03:
But I'm not sure if that's correct.

[00:36:46] Speaker 03:
So while he was alive and while they were separated, she would have been receiving some money.

[00:36:51] Speaker 03:
But again, I'm not sure.

[00:36:53] Speaker 02:
That's OK.

[00:36:55] Speaker 02:
It's a weird question.

[00:36:56] Speaker 02:
I didn't expect you to know the answer to, don't worry.

[00:36:58] Speaker 02:
OK, let's have rebuttal time.

[00:37:04] Speaker 02:
Thank you.

[00:37:04] Speaker 02:
Thank you, Myra.

[00:37:17] Speaker 00:
I do not, under the law,

[00:37:19] Speaker 00:
One cannot simply take it as a given that OPM provided notice, the required notice, to an annuitant.

[00:37:26] Speaker 00:
This would amount to a presumption not provided for under the law.

[00:37:29] Speaker 04:
Let me ask you a question.

[00:37:31] Speaker 04:
You heard our colloquy with Ms.

[00:37:33] Speaker 04:
Christie and all.

[00:37:35] Speaker 04:
And it's clear that the only notice here is the December 2012 notice.

[00:37:41] Speaker 04:
And that's obviously a strong point in your favor.

[00:37:45] Speaker 04:
Assume for the moment, however, and this is obviously hypothetical, we did have in this case, in addition to the December 2012 notice, we did have testimony that was present in the Du Bois case and the Briggs case from a representative of OPM, that Mr. Benson individual, who testified that every December the notices went out.

[00:38:10] Speaker 04:
How, in your view, would that change or not change the result in this case?

[00:38:17] Speaker 04:
In other words, if you had the December 12 notice, nothing else in terms of notices, but you also had the Benson testimony.

[00:38:26] Speaker 00:
Well, I think in that situation, Your Honor, there would be a question as to whether that was sufficient for OPM to meet its burden of production, because OPM has produced

[00:38:36] Speaker 00:
I think there would still, a key thing would be that testimony would have to identify that the 2012 document was noticed and OPM should proffer the notice that was provided during the relevant period.

[00:38:49] Speaker 00:
So I do believe that OPM's burden of production, as long as that testimony would require that, would substantiate that evidence was provided actually to Mr. Cross and that what the notice contained, then that would meet OPM's burden of production.

[00:39:07] Speaker 00:
However, that is not the case here and because OPM did not submit any such evidence the board's conclusion that it was more likely than not that Mr. Cross received notice is simply not supported by sustainability.

[00:39:20] Speaker 02:
What about the board's conclusion that not only did he received it, but he burned it?

[00:39:24] Speaker 00:
Yes, Your Honor, a simile that is not supported by substantial evidence.

[00:39:28] Speaker 00:
In fact, the opposite might be true.

[00:39:30] Speaker 00:
Because Mr. Cross had, for three or four years, retained that 2012 notice, one would presume he would continue to save other notices.

[00:39:38] Speaker 02:
I mean, I don't know about you, but I hear it in my older documents first, right?

[00:39:41] Speaker 02:
So theoretically, you would do that, wouldn't you?

[00:39:45] Speaker 02:
I mean, there's at least a question of fact there.

[00:39:48] Speaker 00:
Correct, Your Honor.

[00:39:49] Speaker 00:
And because of those reasons, it was improper for the judge to simply presume that Mr. Cross continued to receive notices both before and after 2012.

[00:40:00] Speaker 00:
Thank you all very much.

[00:40:01] Speaker 02:
Thank both counsel.

[00:40:02] Speaker 02:
This case is taken under simulation.