Trese Bannister v. United States

United States Court of Appeals
for the Federal Circuit
______________________
TRESE BANNISTER,
Plaintiff-Appellant
v.
UNITED STATES,
Defendant-Appellee
______________________
2023-1978
______________________
Appeal from the United States Court of Federal Claims
in No. 1:22-cv-00500-AOB, Judge Armando O. Bonilla.
______________________
Decided: June 4, 2025
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N ATHAN S. MAMMEN, Snell & Wilmer, LLP, Washing-
ton, DC, argued for plaintiff-appellant.
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. B OYNTON, STEVEN J OHN G ILLINGHAM ,
P ATRICIA M. MC CARTHY .
______________________
Before M OORE, Chief Judge, L OURIE and STARK, Circuit
Judges.
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BANNISTER v. US 2
MOORE, Chief Judge.
Trese Bannister, the surviving spouse of General Jef-
frey Bannister, appeals from a decision of the United
States Court of Federal Claims denying her request for a
Survivor Benefit Plan (SBP) annuity. Because Mrs. Ban-
nister is the proper beneficiary of the SBP annuity under
the governing statute, we reverse the denial and remand
for a determination of the annuity benefits due to Mrs.
Bannister.
BACKGROUND
General Bannister enlisted in the Army in 1979.
J.A. 2. From 1980 to 1996, he was married to Patricia Er-
ickson. Id. As part of their divorce proceedings, they exe-
cuted a separation agreement wherein General Bannister
agreed to elect Ms. Erickson as his SBP annuity beneficiary
at the time of his retirement. J.A. 110.1 On October 25,
1996, a Georgia state court issued a judgment finalizing
the divorce and ordering the parties to comply with the sep-
aration agreement. J.A. 3; J.A. 107.
In 1998, General Bannister married Mrs. Bannister.
J.A. 104. In 2017, General Bannister requested voluntary
retirement, which was approved with an effective date of
May 31, 2018. J.A. 3. As part of the retirement process,
General Bannister elected Mrs. Bannister as his SBP
1 An SBP annuity is part of the Armed Forces Survi-
vor Benefit Plan (Plan), codified at 10 U.S.C. §§ 1447–55.
J.A. 1. The Plan provides financial support to military ser-
vicemembers’ survivors upon a servicemember’s death. Id.
Section 1448 governs application of the Plan. Subsection
(a) governs application of the Plan for “[p]ersons entitled to
retired pay” while subsection (d) governs application of the
Plan for servicemembers “who die[] while on active duty
after . . . becoming eligible to receive retired pay.” 10
U.S.C. § 1448(a), (d).
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BANNISTER v. US 3
annuity beneficiary. J.A. 172–73. On May 27, 2018, four
days before his planned retirement, General Bannister
died. J.A. 105. Shortly after General Bannister’s death,
Ms. Erickson and Mrs. Bannister each submitted a claim
for the same SBP annuity under General Bannister’s plan.
J.A. 4.
The Defense Finance and Accounting Service (DFAS)
awarded the annuity to Ms. Erickson. J.A. 5; J.A. 293.
DFAS explained it was required to pay the annuity to Ms.
Erickson under 10 U.S.C. § 1448(d)(3) due to the separa-
tion agreement Ms. Erickson and General Bannister exe-
cuted in 1996. J.A. 293. Mrs. Bannister appealed to the
Defense Office of Hearings and Appeals (DOHA) and then
to the Army Board for Correction of Military Records
(ABCMR). Like DFAS, DOHA and ABCMR held Ms. Er-
ickson was the proper beneficiary under § 1448(d)(3).
J.A. 315–21 (DOHA initial decision); J.A. 335–40 (DOHA
reconsideration decision); J.A. 32–55 (ABCMR decision).
Mrs. Bannister appealed to the Court of Federal
Claims. Bannister v. United States, 165 Fed. Cl. 119, 120
(2023) (Decision). The parties filed cross-motions for judg-
ment on the administrative record. Id. The Court of Fed-
eral Claims denied Mrs. Bannister’s motion and granted
the government’s motion because it concluded § 1448(d)(3)
precludes Mrs. Bannister from receiving the annuity. Id.
at 124–25. Mrs. Bannister appeals. We have jurisdiction
pursuant to 28 U.S.C. § 1295(a)(3).
D ISCUSSION
“We review legal determinations by the Court of Fed-
eral Claims, including judgment on the administrative rec-
ord, de novo.” Kelly v. United States, 69 F.4th 887, 894
(Fed. Cir. 2023). “We apply the same standard applied by
the Court of Federal Claims, and do not disturb a determi-
nation of [ABCMR] unless it was arbitrary, capricious, con-
trary to law, or unsupported by substantial evidence.” Id.
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BANNISTER v. US 4
We review statutory interpretation de novo. LaBonte v.
United States, 43 F.4th 1357, 1367 (Fed. Cir. 2022).
The issue on appeal is whether General Bannister’s for-
mer spouse (Ms. Erickson) or surviving spouse (Mrs. Ban-
nister) is the correct beneficiary of his SBP annuity
pursuant to 10 U.S.C. § 1448. Mrs. Bannister makes two
arguments as to why she is entitled to General Bannister’s
SBP annuity. First, Mrs. Bannister argues § 1448(a) gov-
erns because General Bannister was a “[p]erson entitled to
retired pay” at the time of his death and she is entitled to
the SBP annuity pursuant to General Bannister’s 2018
election. Appellant Br. 20–27. Alternatively, Mrs. Bannis-
ter argues that even if § 1448(d) governs, she is still the
correct beneficiary because Ms. Erickson failed to send the
Secretary “a written request . . . that the election be
deemed to have been made . . . as provided in section
1450(f)(3).” Id. at 27–38.
The government argues § 1448(d) governs because
General Bannister died on active duty. Appellee Br. 20–39.
Under § 1448(d), the government argues Ms. Erickson is
entitled to the SBP annuity and did not need to submit a
written request for a deemed election. Id. We hold
§ 1448(d) governs entitlement to General Bannister’s SBP
annuity and, pursuant to the statute, Mrs. Bannister is en-
titled to the SBP annuity.
I. Section 1448(d) governs
The plain language of § 1448(d) states it applies to ser-
vicemembers “who die[] while on active duty after . . . be-
coming eligible to receive retired pay,” which is the
situation here. 10 U.S.C. § 1448(d)(1)(A)(i). By contrast,
§ 1448(a) applies to servicemembers “entitled to retired
pay,” which occurs upon retirement. 10 U.S.C.
§ 1448(a)(1)(A); see 10 U.S.C. § 3929 (“A member of the
Army retired under this chapter is entitled to retired
pay[.]”) (repealed and recodified at 10 U.S.C. § 7329
(2019)); see also 38 U.S.C.§ 5304(c) (prohibiting a
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BANNISTER v. US 5
servicemember from receiving duplicative pay, which in-
cludes concurrently receiving both “retirement pay” and
“active service pay”). While General Bannister was eligible
for retirement, he was not retired when he died on active
duty, and therefore was not yet entitled to retired pay. Ac-
cordingly, § 1448(d) governs.
II. Mrs. Bannister is the correct beneficiary
Under § 1448(d), entitlement to the SBP annuity de-
faults to the surviving spouse. 10 U.S.C § 1448(d)(1)
(“[T]he Secretary concerned shall pay an annuity under
this subchapter to the surviving spouse of . . . a member
who dies while on active duty after . . . becoming eligible to
receive retired pay[.]”); Decision at 124. The government
does not dispute this. Oral Arg. at 13:10–23.2
An exception to this default rule allows a former spouse
to receive the SBP annuity when a court order or spousal
agreement requires the servicemember to provide it. Deci-
sion at 124. The exception states:
(3) Mandatory former spouse annuity.—If a mem-
ber described in paragraph (1) is required under a
court order or spousal agreement to provide an an-
nuity to a former spouse upon becoming eligible to
be a participant in the Plan or has made an election
under subsection (b) to provide an annuity to a for-
mer spouse, the Secretary—
(A) may not pay an annuity under paragraph
(1) [to the surviving spouse] or (2) [to depend-
ent children]; but
(B) shall pay an annuity to that former spouse
as if the member had been a participant in the
Plan and had made an election under
2 Available at https://oralarguments.cafc.uscourts.
gov/default.aspx?fl=23-1978_01142025.mp3.
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BANNISTER v. US 6
subsection (b) to provide an annuity to the for-
mer spouse, or in accordance with that election,
as the case may be, if the Secretary receives a
written request from the former spouse con-
cerned that the election be deemed to have
been made in the same manner as provided in
section 1450(f)(3)3 of this title.
10 U.S.C § 1448(d)(3).
Mrs. Bannister argues the exception under § 1448(d)(3)
does not apply because this section, read as a whole, re-
quired Ms. Erickson to timely submit a written request for
a deemed election pursuant to § 1450(f)(3), which she did
not do. Appellant Br. 27–38. The government argues the
exception applies based on subpart (A) alone and that, even
if we reach subpart (B), Ms. Erickson did not have to sub-
mit a written request for a deemed election pursuant to
§ 1450(f)(3). Appellee Br. 20–39. We agree with Mrs. Ban-
nister.
A.
Statutory interpretation is a “holistic endeavor” that
requires, “at a minimum, [we] account for a statute’s full
text, language as well as punctuation, structure, and sub-
ject matter.” U.S. Nat. Bank of Oregon v. Indep. Ins. Agents
of Am., Inc., 508 U.S. 439, 455 (1993) (citation omitted).
While § 1448(d)(3) is “not a model of clarity,” Decision at
120, the language of the statute shows the subparts are in-
terconnected. Section 1448(d)(3) is a single sentence that
includes a preamble and subparts (A) and (B) separated by
the coordinating conjunction “but,” which is generally
“used to connect coordinate elements.” Webster’s Third
3 Section 1450(f)(3) requires the former spouse to
submit a written request for a deemed election “within one
year of the date of the court order or filing involved.”
10 U.S.C. § 1450(f)(3).
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BANNISTER v. US 7
New International Dictionary, at 303 (2002). When read
together, subpart (A) precludes payment of the annuity to
the surviving spouse when the Secretary is required to pay
the former spouse under subpart (B). This aligns with the
default rule that the surviving spouse receives the annuity.
Reading the subparts in conjunction also prevents sit-
uations where neither the surviving nor the former spouse
is entitled to the annuity. As the Court of Federal Claims’
interpretation shows, if subparts (A) and (B) are read in
isolation, neither spouse is entitled to the annuity if the
former spouse fails to satisfy the requirements of subpart
(B). Decision at 124 (“Subsection (d)(3)(A) begins and ends
the statutory analysis . . . . Under the governing statutory
scheme, even if Ms. Erickson were disqualified for failure
to perfect her claim [under subpart (B)], [Mrs.] Bannister
is nonetheless not entitled to an SBP annuity [under sub-
part (A)].”).
B.
We next consider whether a former spouse is required
under subpart (B) to submit a timely request for a deemed
election for the exception to apply. The preamble of
§ 1448(d)(3) contemplates two scenarios when the former
spouse may be entitled to an annuity: “[1] If a member . . .
is required under a court order or spousal agreement to
provide an annuity to a former spouse upon becoming eli-
gible to be a participant in the Plan or [2] has made an elec-
tion . . . to provide an annuity to a former spouse.” This
appeal concerns the first scenario.
Subpart (B) provides the Secretary “shall pay an annu-
ity to that former spouse as if the member had been a par-
ticipant in the Plan and had made an election . . . to provide
an annuity to the former spouse, or in accordance with that
election, as the case may be, if the Secretary receives a writ-
ten request from the former spouse concerned that the elec-
tion be deemed to have been made in the same manner as
provided in section 1450(f)(3).” We conclude the final “if”
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BANNISTER v. US 8
clause modifies both election scenarios that precede it and
requires a former spouse to submit a timely written request
in either scenario.
The government argues the final “if” clause acts as an
independent third scenario for awarding the former spouse
the annuity. Appellee Br. 25–28, 32–33. But the plain lan-
guage of the statute indicates otherwise. Subpart (B) uses
“or” to separate the two scenarios but a comma to separate
the final “if” clause from the preceding scenarios, which in-
dicates the “if” clause modifies both of the preceding sce-
narios rather than functioning independently. Facebook,
Inc. v. Duguid, 592 U.S. 395, 403 (2021) (holding a qualify-
ing phrase separated from antecedents by a comma is evi-
dence the qualifier applies to all the antecedents).
Moreover, the location of the phrase “as the case may be”—
after the two scenarios but before the final “if” clause—in-
dicates the “if” clause is not a third alternative; otherwise,
the phrase would follow the “if” clause, not precede it.
United States v. Woods, 571 U.S. 31, 46 (2013) (holding the
phrase “as the case may be” indicates the preceding items
are alternatives).4
The government’s interpretation would also render the
final “if” clause superfluous. The government argues if ei-
ther election scenario is present the former spouse is auto-
matically entitled to the annuity. This renders the final
“if” clause meaningless because it would never be impli-
cated if a former spouse is automatically entitled to the an-
nuity under either election scenario without having to
submit a timely written request. TRW Inc. v. Andrews, 534
4 Our interpretation is consistent with Georgia state
law which, while not controlling, recognizes provisions of
the SBP control over a Georgia divorce decree awarding the
annuity to a former spouse when the former spouse fails to
make a request for a deemed election. King v. King, 483
S.E.2d 379, 382–83 (Ga. Ct. App. 1997).
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BANNISTER v. US 9
U.S. 19, 31 (2001) (holding statutes should be construed so
that no clause is rendered superfluous).
Moreover, requiring a former spouse to submit a writ-
ten request for a deemed election makes practical sense.
While the surviving spouse receives the annuity by default,
Congress carved out an exception when the former spouse
is entitled to the annuity per a court order or spousal agree-
ment. 10 U.S.C. § 1448(d)(3). Requiring the former spouse
to notify the government in writing of his or her entitle-
ment to the annuity within one year of the court order en-
sures the government knows the correct beneficiary and
can begin paying the annuity quickly upon the service-
member’s death. Absent such notice, it would be impracti-
cal to expect the government to know of every state court
order that may implicate an annuity claim. This also pre-
vents situations where the government must stop paying,
and possibly even claw back, an annuity after awarding it
to a surviving spouse in situations where the former spouse
requests the annuity years after it was awarded.
Having concluded a former spouse is required to sub-
mit a timely written request for a deemed election pursu-
ant to § 1450(f)(3) to be entitled to an SBP annuity under
§ 1448(d)(3), we next consider whether Ms. Erickson met
this requirement. There is no dispute Ms. Erickson failed
to do so. Oral Arg. at 18:25–41; Decision at 122. Given
this, the exception for a former spouse under § 1448(d)(3)
does not apply and Mrs. Bannister is the proper beneficiary
under the default rule of § 1448(d)(1) that provides the an-
nuity to the surviving spouse. While we are sympathetic
to Ms. Erickson’s circumstances, we are without authority
to waive statutory requirements.
CONCLUSION
We reverse the decision of the Court of Federal Claims
denying Mrs. Bannister’s request for the annuity and re-
mand for a determination of the annuity benefits due to
Mrs. Bannister.
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BANNISTER v. US 10
REVERSED AND REMANDED
COSTS
Costs to Mrs. Bannister.
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