Roxie P. Jones, Plaintiff-appellant, v. United States of America, Civil Service Commission,defendant-appellee, 680 F.2d 1138 (7th Cir. 1982)

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US Court of Appeals for the Seventh Circuit - 680 F.2d 1138 (7th Cir. 1982) Argued Jan. 6, 1981. Decided May 21, 1982

R. Stephens Morrison, Chicago, Ill., for plaintiff-appellant.

Canella E. Henrichs, Asst. U. S. Atty., Frederick H. Branding, Asst. U. S. Atty., Chief, Civ. Div., Dan K. Webb, U. S. Atty., Chicago, Ill., for defendant-appellee.

Before SWYGERT and FAIRCHILD, Senior Circuit Judges, and SPRECHER, Circuit Judge.* 

FAIRCHILD, Senior Circuit Judge.

Plaintiff sued the United States for payment of Civil Service Retirement benefits. On cross motions for summary judgment, the district court entered judgment for the United States. Plaintiff appealed. We reverse.

Roy Jones, deceased husband of plaintiff, was an employee of the Postal Service and on September 16, 1966, applied for retirement. Roy Jones and Roxie Jones were married October 6, 1966. Roy Jones' retirement became effective the following day, October 7, 1966. After Roy Jones died in 1974, plaintiff filed a claim with the Civil Service Commission for a survivor's annuity. Her claim was rejected by the Bureau of Retirement, Insurance and Occupational Health, and, on appeal, by the Appeals Review Board. The denial was upheld by the district court.

The controlling statute in this case is 5 U.S.C. § 8341(b) which, at the time of Roy Jones' retirement, provided in pertinent part:

If an employee or Member dies after having retired under this subchapter and is survived by a spouse to whom he was married at the time of retirement, the spouse is entitled to an annuity ... unless the employee or Member has notified the Commission in writing at the time of retirement that he does not desire his spouse to receive this annuity. The annuity of the spouse commences on the day after the retired employee or Member dies.1 

Plaintiff Roxie Jones was married to Roy "at the time of retirement" and was thus entitled to an annuity after his death unless Roy, at the time of retirement, notified the Commission in writing that he did not desire her to receive the annuity. Roy gave no express written notice in terms of the statute. The Government's defense is, in substance, that there was constructive or implied notice sufficient under the circumstances. The district court agreed.

The applicable Regulation permitted an employee to file his application for an annuity "within 30 days before, on, or at any time after he reaches the requisite retirement age." 5 C.F.R. § 831.501, (revised as of January 1, 1964). Jones applied some three weeks before retirement. He was then unmarried. There is nothing to show whether at the date of application he had already planned his marriage. Neither does it appear that his employer or the Commission knew until after his death that he did marry on October 6 and was "married at the time of retirement."

The Civil Service Commission had created Standard Form No. 2801 to enable a government worker to apply for retirement. The only portion of the form (reproduced as an Appendix to this opinion) which calls for the choice regarding survivor's annuity provided by 5 U.S.C. § 8341(b) is labeled "F. Types of Annuity: Married Applicants Only." Part 1 of F. reads in part: "If you are married, you will receive this type of annuity (Annuity with survivor benefit to widow or widower, a reduced annuity for the employee) unless you choose the annuity in F.2." Part 2 of F. has a space for initialling a statement using the terms prescribed by § 8341(b), "(I do not desire my wife (or husband) to receive a survivor annuity benefit after my death.)"

The portion in which Roy Jones placed his initials is labeled "G. Types of Annuity: Unmarried Applicants Only (Including Widowed and Divorced)." G. provided a choice between 1., "Annuity Without Survivor Benefit," and 2. "Annuity With Survivor Benefit To Named Person Having An Insurable Interest." Jones initialed 1. Plaintiff had no insurable interest at that date. Thus his failure to initial G.2., naming her, should not be deemed an election to exclude her if she became his spouse.

The form contains no provision for indicating the intent, as to a possible spouse's survivor benefits, of an unmarried applicant who applies before retirement.

Where a spouse is entitled to a survivorship annuity, the annuity paid the retired employee is smaller. Jones received unreduced retirement benefits until his death in 1974. Thus he received what he should have received if he had given the appropriate written notice.

The Government points out that Jones could have delayed in applying until after his marriage, and argues that by making his application before marriage he rejected survivor benefits for a spouse. The Regulations would have permitted him to change his choice of option before final adjudication of his claim, a period of about two months. 5 C.F.R. § 831.601. The Government argues that his failure to do so constituted notice to the Commission that he did not desire to provide a survivor benefit to his wife. The district court agreed. As already stated, Jones accepted a greater annuity than he would have been entitled to if his wife were deemed entitled to a survivor's annuity.

It is true that Jones could have done these things, and that he received a greater amount of money than if he had done them. Whatever one's view of the equities between Jones and the Government, we think that plaintiff spouse is entitled to a literal application of the statute.

Although Congress permits a married employee to eliminate his spouse's entitlement to an annuity as a survivor, and thereby obtain a larger annuity during the employee's lifetime, it has prescribed a particular and unequivocal procedure for accomplishing this result.

The present law providing automatic survivor annuity rights to the spouse in the absence of written notice to the contrary was a deliberate change from earlier law. Before 1962, the employee was to receive the unreduced annuity unless he affirmatively elected the reduced annuity and designated his spouse. Public Law 854, July 31, 1956, 70 Stat. 753, Sec. 9(g).

In 1962, the matter was changed so that the employee receives the reduced annuity and his spouse becomes entitled to a survivor's annuity unless the retiree gives written notice to the contrary. The change was part of the Postal Service and Federal Employees Salary Act of 1962, which amended § 10(a) (1) of the Civil Service Retirement Act so as to read substantially as did 5 U.S.C. § 8341(b) at the time of Roy Jones' retirement. Public Law 87-793, Sec. 1103(b), approved October 11, 1962, 76 Stat. 870. The reversal of the procedure was mentioned several times in the legislative history set out in U.S.Code Cong. & Ad.News, 87th Cong., 2d Sess., (1962) vol. 2, pp. 3034ff, e.g. at 3083. The change was clearly brought to Congressional attention.

From Jones' failure to do some of the things the Government now suggests, the Government would have us infer an election preventing his wife's entitlement. We think there is strong statutory policy against cutting off her rights other than by the written notice prescribed.

Plaintiff concedes that there should be an adjustment in favor of the Government representing over-payments received by Roy Jones during his life. We leave the terms of the adjustment to the consideration of the district court on remand unless the parties can agree.

The judgment of the district court is reversed and the cause remanded for the determination of the amount of benefits due plaintiff and entry of judgment for the plaintiff in accordance with this opinion.

Reversed and Remanded.APPENDIX



Judge Sprecher heard oral argument and participated in the conference which followed. He died May 15, 1982 and did not participate in the preparation or approval of this opinion


The current statute is similar but also extends the same survivor's annuity benefit to a person who marries the employee or Member after retirement, again in the absence of written notice at the time of retirement that the employee does not desire "any" spouse to receive his annuity. 5 U.S.C. § 8341(b) (1). Eligibility for benefits is determined by the statute in force at the time of the employee's retirement. Crawford v. United States, 609 F.2d 1185, 1188 (5th Cir. 1980)