Pauline Bruce, Petitioner, v. Office of Personnel Management, Respondent, 907 F.2d 158 (Fed. Cir. 1990)

The initial decision of the Merit Systems Protection Board, Docket No. DC08319010053, which became final on February 22, 1990, and which affirmed the decision of the Office of Personnel Management denying petitioner's claim for a survivor benefit as the widow of Carl W. Bruce, is affirmed.

OPINION

The claim was denied because Mr. Bruce elected to receive a civil service annuity without a survivor benefit for his wife at the time of his retirement on June 24, 1975. He clearly and affirmatively made this choice in writing, and reaffirmed that choice when the agency, stating that it wanted to avoid any possible mistake, asked that he reexamine his decision.

At the time Mr. Bruce made his selection, no law required that he or the government notify his wife as to whether he chose a reduced benefit for himself by opting for a survivor benefit for her or whether he chose an enhanced benefit for himself during his lifetime only. Absent a requirement of notice to his spouse, Mr. Bruce's retirement application was properly processed by the agency. He had been carefully warned about the consequences of his action but did not change his mind.

The administrative judge found no credible evidence showing that Mr. Bruce did not understand the election he was making or that he was incompetent to understand it. This is an unfortunate result for petitioner but we can neither change nor waive the law as written by Congress. The decision of the Merit Systems Protection Board is supported by substantial evidence and is correct as a matter of law. 5 U.S.C. §§ 8341(b) (1), 7703(c) (1988).