Case: 23-1978 Document: 57 Page: 1 Filed: 06/04/2025

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 ______________________ NATHAN S. MAMMEN, Snell & Wilmer, LLP, Washing- ton, DC, argued for plaintiff-appellant.

PATRICK ANGULO, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washing- ton, DC, argued for defendant-appellee. Also represented by BRIAN M. BOYNTON, STEVEN JOHN GILLINGHAM, PATRICIA M. MCCARTHY. ______________________ Before MOORE, Chief Judge, LOURIE and STARK, Circuit Judges.

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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

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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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).

DISCUSSION “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. Case: 23-1978 Document: 57 Page: 4 Filed: 06/04/2025

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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 Case: 23-1978 Document: 57 Page: 5 Filed: 06/04/2025

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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

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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

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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” Case: 23-1978 Document: 57 Page: 8 Filed: 06/04/2025

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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

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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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REVERSED AND REMANDED COSTS Costs to Mrs. Bannister.