Cindy Schussler v. United States

N OTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
CINDY SCHUSSLER,
Plaintiff-Appellant
v.
UNITED STATES,
Defendant-Appellee
______________________
2021-1819
______________________
Appeal from the United States Court of Federal Claims
in No. 1:18-cv-00598-EMR, Judge Eleni M. Roumel.
______________________
Decided: April 26, 2023
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ANTHONY BENJAMIN EMMI, Betty and Michael D. Wohl
Veterans Legal Clinic, Syracuse University College of Law,
Syracuse, NY, argued for plaintiff-appellant. Also repre-
sented by ELIZABETH G ARRISON K UBALA.
P ATRICK ANGULO, Commercial Litigation Branch, Civil
Division, United States Department of Justice, Washing-
ton, DC, argued for defendant-appellee. Also represented
by BRIAN M. BOYNTON, P ATRICIA M. MCC ARTHY , D OUGLAS
K. MICKLE.
______________________
Case: 21-1819 Document: 68 Page: 1 Filed: 04/26/2023

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SCHUSSLER v. US 2
Before D YK, SCHALL , and CHEN, Circuit Judges.
P ER CURIAM .
Cindy Schussler appeals a decision of the Court of Fed-
eral Claims (“Claims Court”) granting the government’s
motion for judgment on the administrative record as to her
suit for payment under the Survivor Benefit Plan (“SBP”),
a federal program that pays annuities to eligible survivors
of U.S. military personnel. We affirm.
I
The SBP “is an insurance-style program allowing eligi-
ble servicemembers and military retirees to elect to have
premiums deducted from their pay in order to provide their
spouses [and dependents] with additional benefits after
their deaths.” Sharp v. United States, 580 F.3d 1234, 1236
(Fed. Cir. 2009); see 10 U.S.C. §§ 1447–55. Although it has
been amended several times, both parties agree that the
relevant SBP statutory scheme in this case is the one that
was in force in 1995.
In 1995, both regular servicemembers and reservists
could become eligible for the SBP. All personnel entitled to
retirement pay with a spouse or dependent child were by
default enrolled in the SBP, though they could opt out. 10
U.S.C. § 1448(a)(2)(A) (1995).1 Reservists were generally
not entitled to retirement pay until their sixtieth birthday,
and so even if they had a spouse or dependent child they
were not automatically enrolled in SBP until age sixty. Id.;
see also id. § 12731(a)(1). But Congress allowed reservists
to opt in to the plan after twenty years of service even be-
fore reaching retirement age so if they died before reaching
age sixty their survivors could receive benefits. Id.
1 Citations to the United States Code throughout
this opinion are to the 1995 edition.
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SCHUSSLER v. US 3
§ 1448(a)(1)(B); see also id. § 12731(a)(2). Such reservists
had to elect to participate within ninety days of becoming
eligible. Id. § 1448(a)(2)(B). Those who failed to do so
would only be able to participate in the SBP after turning
sixty. Id.
Congress required that married, SBP-eligible regular
servicemembers and reservists over age sixty obtain
spousal consent before opting out of SBP.2 Id.
§ 1448(a)(3)(A) (spousal consent requirement applied to
“married person[s] who [were] eligible to provide a stand-
ard annuity”). Married eligible reservists under age sixty
“who elect[ed] to provide a reserve-component annuity”
had to obtain spousal consent before electing less than the
maximum benefit or electing to provide benefits to a de-
pendent child but not for a spouse. Id. § 1448(a)(3)(B). In
1995, therefore, the law did not require spousal consent for
decisions of eligible reservists who had not reached age
sixty to entirely forego opting in to the SBP.
II
Ms. Schussler is the surviving spouse of Frederick
Schussler, who served in the United States Army Reserve
Component between 1975 and 2005. In 1995, the Army
sent Mr. Schussler a letter informing him that he could opt
in to the SBP within ninety days of the letter. The letter
told him that if he did not opt to participate in the SBP
within that period he would not have the opportunity to do
so again until he turned sixty. Mr. Schussler did not elect
2 Congress has subsequently amended the spousal
consent provisions of the SBP, see Floyd D. Spence Na-
tional Defense Authorization Act for Fiscal Year 2001, Pub.
L. No. 106-398, § 655, 114 Stat. 1654, 1654A–165 (2000),
but all parties agree that the later amendments do not ap-
ply here.
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SCHUSSLER v. US 4
to participate in the SBP within ninety days, and he died
before his sixtieth birthday.
Ms. Schussler contends that, because she did not con-
sent to Mr. Schussler’s non-enrollment in the SBP, his fail-
ure to enroll should be disregarded. But under § 1448 as it
existed in 1995, Ms. Schussler’s consent was not required
for Mr. Schussler to forego participation in the SBP. Mr.
Schussler was neither “eligible to provide a standard annu-
ity,” id. § 1448(a)(3)(A), because he had not reached the age
of sixty, nor a person “who elect[ed] to provide a reserve-
component annuity,” id. § 1448(a)(3)(B). Congress’s
spousal consent requirements did not apply under these
circumstances.
The Claims Court is
AFFIRMED
COSTS
No costs.
Case: 21-1819 Document: 68 Page: 4 Filed: 04/26/2023

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