Our client, Roksoliana Dachniwskyj, the widow and second wife of Myron Dachniwskyj, applied for the survivor annuity as her husband’s “former spouse” with the Federal Employees Retirement System and Military Retirement Benefits through the United States Government. Her application for the survivor annuity was denied by the U.S. Government stating she did not qualify for benefits as the former spouse. Anderson and Boback filed a Notice of Appeal on her behalf with the U.S. Court of Appeals for the Federal Circuit in Washington, D.C. and successfully obtained the survivor benefits for second spouse, our client.
Our client married her husband in 1998 and remained married until he passed away in 2009. Her husband had been previously married, for 42 years, and divorced in 1998. When Myron died, he was retired and receiving a Railroad Retirement from the Federal Employees Retirement System and Military Retirement Benefits from the United States Government.
Our client’s argument was that the Federal notice sent to her husband that he must reelect a survivor annuity for his new wife after he divorced his first wife was ineffective and that her husband’s failure to terminate the reduction of his annuity during their 11 years marriage signaled his intent to continue to provide the annuity for her after his divorce.
The US Merit System Board awarded the benefit to his first wife citing Simpson v OPM 347 F.3d 1361, 1364-65 (Fed. Cir. 2003) where it was held that notices OPM sent to annuitants from 1989 to 1996 were ineffective in that they failed to inform an annuitant who had elected reduced annuity benefits prior to a divorce to provide for survivor benefits, that a pre-divorce election automatically terminates upon divorce, and if he still intended that the former spouse receive an annuity, he must make a new election within two years.
Our client’s spouse received the notice but the 1999 version he received still did not meet the requirements of the Simpson case, it did not notify him that the divorce voided his prior election and he must now re-elect her as a former spouse; Based upon the continued deduction for Survivor Benefits and his failure to notify OPM of his divorce or remarriage, her spouse believed he was not required to do anything else to continue his wife’s annuity
Our client filed a petition for review of this decision and pursued litigating the issue of who should rightfully receive the survivor benefit, our client (2nd wife) or the 1st wife.
FINAL ORDER entered by the MERIT SYSTEMS PROTECTION BOARD denied our client’s Petition for Review and affirmed the decision granting the survivor benefit to the 1st wife.
Janice L. Boback appeared before the U.S. Court of Appeals for the Federal Circuit in Washington, D.C. and successfully argued that the Board’s award to the first spouse and ex-wife was not supported by substantial evidence. The appellate court reversed the decision of the Merit Systems Protection Board and awarded the survivor annuity benefits to our client.
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