Argument Preview

This week we are previewing three cases scheduled to be argued next week at the Federal Circuit. Each of these three cases attracted at least one amicus brief. Today we highlight a benefits case, Cross v. Office of Personnel Management. In this case, Cross asks the Federal Circuit to reverse a decision of the Merits Systems Protection Board regarding the denial of survivor benefits. In particular, the petitioner is claiming survivor benefits as a surviving former spouse when her deceased former husband failed affirmatively to re-elect survivor benefits during the few months between their divorce and his death. The appeal attracted an amicus brief filed by the Merit Systems Protection Board. This is our argument preview.

In her opening brief, Cross argues that she reasonably relied on orders from the Board when she “pursued her further right of appeal to this Court rather than to the Board” before the Board’s judgment became final. Cross also argues lower Board decisions “ignored Mr. Cross’s clear intent to provide” for her because he elected to provide her “the maximum surviving spouse annuity upon his retirement in 2005, seven (7) years after the couple separated, and his continued election to receive a reduced annuity to provide for a maximum survivor annuity for the next nine (9) years following his retirement.” She further contends that “evidence of intent to provide a spousal annuity following divorce is a well-established basis for the entitlement of a former surviving spouse annuity in circumstances such as the instant case.”

In its response brief, the Office of Personnel Management first argues “the Court cannot accept a petition for appeal from a decision that is not yet final.” On the merits, OPM argues that survivor benefits were properly denied “because a preponderance of the evidence supports the Board’s finding that Mr. Cross failed to re-elect a survivor annuity on Ms. Cross’ behalf following their divorce.” OPM contends that “Mr. Cross had adequate notice that re-election after divorce was required, because OPM provided Mr. Cross and all other annuitants with annual written notices of that requirement each year since 2005.”

In her reply brief, Cross makes three responsive arguments. First, she contends that “[t]here exists no evidence to demonstrate that Mr. Cross received the statutorily required notice after his divorce, or even in any year other than 2012.” Second, Cross argues, “[t]here is substantial case law to support Petitioner’s entitlement to a former spouse survivor annuity based on the clear intent of Mr. Cross during his lifetime.” Third, Cross argues, the “Respondent has mischaracterized Petitioner’s testimony” for when Mr. Cross received required notice and, she again points out, the “Respondent has provided no evidence that Mr. Cross received this notice in any year other than 2012.”

The Merit Systems Protection Board filed an amicus brief, noting the procedures used by the Board to deny an appeal by Cross to rehear her case. The Board highlights that Cross was represented pro se before the Board and “did not file a Board petition for review in compliance with the Clerk’s fifth and final extension order.” The Board argues this meant “the initial decision became final on that date.” The Board, however, concedes that the plaintiff “timely filed an appeal” with the Federal Circuit when Cross appealed to the Federal Circuit before the Board’s holding became final.

This case will be argued on Wednesday, December 15. We will report on developments.