United States Court of Appeals
for the Federal Circuit
__________________________
STEPHANIE D. BYRUM,
Petitioner,
v.
OFFICE OF PERSONNEL MANAGEMENT,
Respondent.
__________________________
2009-3264
__________________________
Petition for review of the Merit Systems Protection
Board in DA0843080294-I-2.
__________________________
Decided: September 9, 2010
__________________________
SCOTT E. STEVENS, Stevens Love, of Longview, Texas,
argued for petitioner.
DANIEL RABINOWITZ, Trial Attorney, Commercial Liti-
gation Branch, Civil Division, United States Department
of Justice, of Washington, DC, argued for respondent. On
the brief were TONY WEST, Assistant Attorney General,
JEANNE E. DAVIDSON, Director, BRIAN M. SIMKIN, Assis-
tant Director, and MICHAEL N. O’CONNELL, Trial Attor-
ney.
__________________________
BYRUM v. OPM 2
Before GAJARSA, MAYER, and PLAGER, Circuit Judges.
PLAGER, Circuit Judge.
This case involves determining the rightful claimant
to certain death benefits attributable to the service of a
deceased federal employee. The employee’s spouse, who
ordinarily would be entitled to the benefits, has been held
civilly responsible for the employee’s death. Ordered in
the civil action to assign the benefits to Stephanie Byrum,
daughter of the deceased employee and petitioner in this
appeal, the employee’s spouse subsequently executed the
ordered assignment. Petitioner Byrum made claim to the
death benefits.
The Office of Personnel Management (“OPM”) denied
her claim on the ground that Ms. Byrum, the daughter of
the deceased federal employee, was not also the spouse of
the deceased, and since she was not, she could not claim
the benefits. The Merit Systems Protection Board
(“MSPB” or “Board”) affirmed OPM’s decision, specifically
limiting its decision to the conclusion that Stephanie
Byrum was not her mother’s spouse. The Department of
Justice, representing the Government in this appeal,
agrees with both OPM and the Board that Ms. Byrum
was not her mother’s spouse, or at least the Board did not
err in so concluding.
This appeal presents us with the question of whether
the Board correctly decided the case before it. Those
uninitiated in the ways of government might suppose a
conclusion regarding whether a daughter was or was not
also her mother’s spouse, even on these scant facts, to be
somewhat strange, and might even suppose that a correct
conclusion regarding that proposition is sufficiently self-
evident not to have required two years of administrative
consideration. One might even think there must have
3 BYRUM v. OPM
been something else at issue. In fact, there was. It falls
to us to explain to the Justice Department, the MSPB,
and OPM why it is now necessary, after all the adminis-
trative proceedings that preceded, for this court to vacate
and remand the matter so OPM can start over, address-
ing the issues Ms. Byrum’s claim actually presented.
BACKGROUND
A.
Rebecca Moulton in 2004 met an untimely death. At
the time of her death, Mrs. Moulton had been employed
by the United States Postal Service (“USPS” or “agency”)
for almost eighteen years and had been married to David
Len Moulton for almost seventeen years. Also surviving
her was a daughter, Stephanie Moulton, now known as
Stephanie Byrum.
Ms. Byrum was appointed Administrator of her
mother’s estate, and set about the process of identifying
the assets of the estate, including both insurance and
death benefits accruing from her mother’s employment.
Among the death benefits the Government provides for its
employees under the Federal Employees Retirement
System (“FERS”) are the two at issue in this case: (1) a
lump sum payment for the employee’s widow or widower
in an amount based on a percentage of the employee’s
rate of pay, 5 U.S.C. § 8442(b)(1)(A), 1 and (2) if the em-
ployee completed at least ten years of service, an annuity
for the surviving spouse equal to fifty percent of the basic
retirement annuity that would be computed for the em-
ployee based on her pay and years of service, 5 U.S.C.
1 The lump sum can be taken in monthly install-
ments over a period of three years. 5 U.S.C. § 8442(b)(2).
BYRUM v. OPM 4
§ 8442(b)(1)(B). Rebecca Moulton’s years of service
earned both of these benefits, payable to a surviving
spouse if there be one, which in this case there was.
Not long after Rebecca Moulton’s death, David Moul-
ton, her surviving spouse, applied for these death bene-
fits. OPM has yet to issue a decision on his application.
As will be seen, the question of to whom these benefits are
now to be paid is the central issue in this case.
Upon learning more about how her mother met her
demise, 2 Ms. Byrum, individually and as Administrator of
her mother’s estate, and joined by other family members,
brought a civil suit in a Texas state court against her
mother’s husband, David Moulton, for wrongfully causing
his wife’s death. A jury found Mr. Moulton liable, and
judgment was rendered in April 2006 awarding plaintiffs
several million dollars in compensatory and exemplary
damages. The judgment included an order commanding
David Moulton “to desist and refrain from making any
application for monetary benefits relating in any manner
to the death of Rebecca Moulton in perpetuity,” and
ordering him to deposit any such funds he has or may
receive into the registry of the court. J.A. 5.
A further order was issued by the Texas court in July
2006, granting what was denominated “Turnover Relief.”
In that order the court referenced both the “Death bene-
fits available through the Federal Employees Retirement
System,” referring to the two statutory benefits described
above, as well as “Life Insurance, administered by the
2 For a detailed account of the circumstances sur-
rounding Rebecca Moulton’s death, which led to both the
civil action and the subsequent criminal proceeding
against David Moulton, see John Council, Patent Lawyer
Turned Prosecutor, Tex. Law., Apr. 5, 2010, at 1.
5 BYRUM v. OPM
Federal Employees Group Life Insurance Program.” The
order directed Moulton “to execute such forms that are
necessary to consummate the assignment of his right,
title and interest, if any, of the above-referenced benefits
to Plaintiffs.” J.A. 8.
Later that same month, Ms. Byrum’s attorney sent a
letter to USPS, the agency for which the mother had
worked. The letter was accompanied by completed claim
forms for death benefits under the Federal Employees’
Group Life Insurance Program (“FEGLI”) and death
benefits under FERS, the latter being the benefits at
issue in this case. 3 In the letter the attorney explained
the circumstances of the mother’s death and the subse-
quent civil suit. He enclosed copies of the Texas court’s
judgment and order for turnover relief and explained that
the order made clear that, to the extent David Moulton
had any claim to the various death benefits, he had been
ordered to assign them as set out in the order. The letter
stated that, “Accordingly, we are proceeding with making
formal claim for all such benefits.” J.A. 1.
In the letter, the attorney then requested the agency
to send him the paperwork necessary to complete such an
assignment. In the alternative, the attorney offered to
prepare an assignment form, have it executed by Mr.
Moulton, and then forward it to the agency. The letter
concluded: “[T]o the extent that assignments or disclaim-
ers are required from Mr. Moulton for any other benefits,
then please notify me of the same, and I will have those
forms completed.” J.A. 2.
3 The FERS and FEGLI claim forms instruct an
applicant to send completed forms to the employing
agency, rather than OPM or the Office of FEGLI, if the
deceased was employed at the time of death.
BYRUM v. OPM 6
The completed forms sent with the letter indicated
that the deceased person’s spouse at the time of death
was David Len Moulton, and that Stephanie Moulton (i.e.,
Byrum), the applicant, was the Administrator of the
employee’s estate; copies of the court-issued Letter of
Administration were enclosed. On Form 3104—
Application for Death Benefits under FERS—question 5
of Section B reads “I am applying for benefits as (check all
boxes that apply).” J.A. 34. Ms. Byrum checked “Child,”
but failed to check “Executor or administrator of estate.”
She also could have checked “Other” and explained that
she was claiming benefits as the assignee of David Moul-
ton’s rights. This incomplete answer may have intro-
duced some confusion as to whether Ms. Byrum’s claim
for benefits was simply one from a misinformed child of
the deceased, or was one from a legitimate claimant
under a court-ordered assignment pursuant to state law.
Nevertheless, the explicit explanation of the matter
contained in the attorney’s cover letter should have been
sufficient to notify OPM that Ms. Byrum was claiming the
death benefits that Mr. Moulton had been ordered by the
Texas court to assign to her.
Not long afterward, in September 2006, Ms. Byrum’s
attorney sent a similar letter to the Office of FEGLI
(“OFEGLI”) intending to claim the mother’s life insurance
benefits. Again the claim was based on the court-ordered
assignment theory. Among other documents, the letter
enclosed copies of the completed claim forms for FEGLI
death benefits and for FERS death benefits. At some
point during the ensuing months, OFEGLI paid the
claimed life insurance benefits to Ms. Byrum.
After receiving no response regarding the claim for
FERS death benefits, Ms. Byrum’s attorney wrote in
January 2007 directly to the OPM office that handles
7 BYRUM v. OPM
FERS claims. In the letter, the attorney stated that his
office had “forwarded all necessary claim forms for bene-
fits due and payable as a result of the untimely death of
Rebecca Diane Moulton.” He explained once again that
the Texas court had ordered David Moulton to assign all
death benefits to Ms. Byrum. He enclosed a copy of the
court’s July 2006 turnover order and two documents that
he had not previously sent: a completed disclaimer and
assignment form, signed by David Moulton, and a copy of
the completed application for death benefits that David
Moulton had submitted originally to OPM in 2005.
At this point the attorney, presumably inadvertently,
introduced into the matter a second potential area of
misunderstanding, not about who was claiming the bene-
fits and why, but about exactly what benefits were being
claimed. His letter stated, “With the exception of the
Basic Employee Death Benefit (BEDB), we have collected
all benefits. I write to demand payment of the Basic
Employee Death Benefit due and payable to Stephanie
Byrum.” The term “Basic Employee Death Benefit” is
used in OPM regulations to refer to the lump sum benefit
payable to a surviving spouse under 5 U.S.C.
§ 8442(b)(1)(A). As will be discussed in more detail below,
however, the record is clear that Ms. Byrum was claiming
all death benefits attributable to her mother’s federal
service, including all available FERS death benefits,
which the Texas court ordered Mr. Moulton to assign to
Ms. Byrum.
B.
OPM issued its initial decision on Ms. Byrum’s claim
for FERS death benefits in February 2007. It stated:
BYRUM v. OPM 8
[Y]ou are not eligible for payment of the Basic
Employee Death Benefit (BEDB) from the Federal
Employees Retirement System as a result of the
death of Rebecca D. Moulton.
The BEDB is a lump sum death benefit that is
payable only to a surviving spouse or former
spouse of a deceased employee. Since David L
Moulton was responsible for causing the death of
Rebecca D Moulton, he is not entitled to any death
benefits from the Federal Employees Retirement
System. This benefit is not payable to you as the
child of the deceased.
J.A. 57 (emphasis in original). The decision made no
reference to Ms. Byrum’s claim of entitlement to FERS
death benefits by assignment from Mr. Moulton.
Ms. Byrum sought reconsideration of OPM’s decision
in a letter sent the following month by her attorney. He
noted that OPM’s position regarding FERS death benefits
was in direct conflict with OFEGLI’s position regarding
Rebecca Moulton’s life insurance benefits, which, upon a
showing of the court orders and assignment signed by
David Moulton, were turned over to Ms. Byrum. With
regard to eligibility for death benefits, the attorney stated
that, under Clark v. Office of Personnel Management, 256
F.3d 1360 (Fed. Cir. 2001), courts will look to the law of
the state. According to his reading of Texas law on forfei-
ture of life insurance proceeds, which he contended should
also apply to the death benefits at issue here, the attorney
concluded that Mr. Moulton was entitled to claim the
benefits because there had been no criminal conviction
and no finding of an “intent to kill and an element of
9 BYRUM v. OPM
illegality” in the civil case. J.A. 58 (citation omitted).
Consequently, he argued, Mr. Moulton’s assignment to
Ms. Byrum of his right to the death benefits rendered her
the legal claimant.
Almost a year later, OPM issued its reconsideration
decision. In it, OPM acknowledged that the law that
applies to Ms. Byrum’s request for benefits includes
subsections (A) and (B) of 5 U.S.C. § 8442(b)(1), which
provide for the lump sum payment and the survivor
annuity, respectively. After noting that life insurance
proceeds administered by OPM under the FEGLI are
assignable, the decision simply ended with the conclusory
statement that “the FERS law and regulation provide for
payment of [death benefits] to eligible spouses of an
employee . . . . [Y]ou are not eligible for [death benefits]
because you are not the widower of the deceased.” J.A.
93.
Ms. Byrum next appealed OPM’s reconsideration de-
cision to the Board. The administrative judge (“AJ”) to
whom the case was assigned initially recognized that in
the case as presented there were a number of unresolved
issues, including the basic question of who was eligible to
receive the death benefits, and whether David Moulton
was a necessary party entitled to be heard in the case.
Initially, in order to allow Mr. Moulton an opportunity to
intervene, the AJ dismissed the appeal. Mr. Moulton did
not intervene, and the appeal was reopened.
In March 2009, the AJ issued his Initial Decision,
which became the final decision of the MSPB when the
Board denied Ms. Byrum’s petition for review. The deci-
sion acknowledged that OPM had failed to address sev-
eral issues: whether Ms. Byrum was entitled to the death
benefits in the event David Moulton was precluded by law
BYRUM v. OPM 10
from claiming them for himself; whether Ms. Byrum was
entitled to receive the death benefits “derived from the
interests of” David Moulton; and the status of unrefunded
retirement contributions that ordinarily are to be paid as
a lump sum according to a statutory order of precedence if
no survivor is eligible for an annuity, see 5 U.S.C.
§ 8424(d),(e). Byrum v. Office of Pers. Mgmt., No. DA-
0843-08-0294-I-2, slip op. at 4 n.4 (M.S.P.B. Mar. 5, 2009).
The AJ did recognize that the Board could take juris-
diction over an appeal if an agency’s failure to issue a
decision “‘could effectively prevent an appellant from
obtaining an adjudication of his claim.’” Id. (quoting
Board precedents). Nevertheless, the AJ concluded that,
since OPM had only decided the narrow issue of whether
Ms. Byrum was indeed not her mother’s spouse, the
Board’s decision on appeal would be equally limited. The
AJ found that “OPM’s reasoning on this limited point
[was] correct and must be affirmed.” This concluded the
process of administrative adjudication of Ms. Byrum’s
claim for the death benefits attributable to her mother’s
eighteen years of federal service.
Ms. Byrum turned to the courts, and appealed here.
We have jurisdiction under 28 U.S.C. § 1295(a)(9). Attor-
neys from the Department of Justice now represent OPM.
Given a choice between returning the matter to the Board
or OPM for further consideration of the unaddressed
issues, or mounting a vigorous defense of the puzzling
decisions of OPM and the Board, the Department has
chosen the latter.
11 BYRUM v. OPM
DISCUSSION
A.
As an initial matter, we address a potential area of
confusion regarding which benefits Ms. Byrum is claim-
ing. As noted, Ms. Byrum’s attorney used the phrase
“Basic Employee Death Benefit” and its acronym,
“BEDB,” in some of his correspondence. That term does
not appear in 5 U.S.C. § 8442, the statute that provides
the two FERS death benefits previously described—the
lump sum benefit of subsection (b)(1)(A) and the survivor
annuity of subsection (b)(1)(B). The phrase “basic em-
ployee death benefit” is introduced in an OPM regulation,
5 C.F.R. § 843.309, to describe the lump sum payment
provided under subsection (A) of the statute. Another
regulation, § 839.102, defines “Basic Employee Death
Benefit or BEDB” as “the FERS survivor benefit payable
as a lump sum or over 36 months, described in § 843.309.”
This case began with the Texas court ordering David
Moulton to assign to plaintiffs in the civil case all mone-
tary benefits that he could claim based on Rebecca Moul-
ton’s federal employment. The court orders did not use
either the phrase “Basic Employee Death Benefit” or the
“BEDB” acronym, but referred to FERS “death benefits”
in the plural. The July 2006 letter from Ms. Byrum’s
attorney initiating her claims clearly stated that what she
was seeking was “the various benefits” available from the
Government as a result of an employee’s death, including
all benefits to which Mr. Moulton had any claim, which by
court order were to be assigned to Ms. Byrum.
Then in his January 2007 letter, Ms. Byrum’s attor-
ney referred to her claim as one for the “Basic Employee
Death Benefit (BEDB)” or the “BEDB.” These terms
BYRUM v. OPM 12
continued to be used indiscriminately by both the attor-
ney and OPM (and later by the MSPB and the lawyers
before this court), appearing at times to have been used to
describe all the benefits available, and at other times to
describe something less. For example, in its reconsidera-
tion letter of February 2008, OPM specifically cited both
subsections (A) and (B) of § 8442(b)(1) as being the law
that applied to Ms. Byrum’s claim. However, by making
reference to “the BEDB,” OPM left unclear whether its
ruling on the claim was intended to be limited to the
subsection (A) lump sum benefit, leaving the subsection
(B) annuity issue undecided, or whether its ruling also
applied to the subsection (B) annuity.
Unfortunately, in the appeal to this court the parties
carried forward the confusion, frequently using the BEDB
acronym to refer either to both benefits or to the specific
subsection (A) benefit. Confusion was compounded when,
at oral argument, Ms. Byrum’s counsel, responding to a
question from the court, indicated that he understood the
benefits at issue to be the lump sum benefit of subsection
(A), a response that he promptly withdrew in a post-
argument submission to the court in which he stated that
he was confused by the question and reiterated that Ms.
Byrum was seeking all benefits available, including both
the lump sum award of subsection (A) and the survivor
annuity of subsection (B).
It seems safe to assume that an agency that adminis-
ters a government program, particularly those as complex
as the programs administered by OPM, brings to it a level
of expertise not necessarily shared by the general public.
If OPM itself has had difficulty sorting through the claim
involved in this case under the laws it administers, it is
perhaps even more understandable that others who do
not regularly practice federal benefits law would have
13 BYRUM v. OPM
difficulty with the terms and phrases sprinkled through
that law. There is no doubt that the intent of the state
court that issued the orders, of David Moulton in assign-
ing his rights pursuant to those orders, and of Ms. Byrum
in claiming the benefits that the court ordered Mr. Moul-
ton to assign to her, was to obtain all the death benefits
that the law provided as a consequence of her mother’s
government service, including both the subsection (A) and
subsection (B) benefits. Accordingly, to avoid any ques-
tion arising in this regard on remand, for purposes of law
of the case we hold that the petitioner is seeking all
available death benefits attributable to her mother’s
service, and specifically including both the lump sum and
the annuity provided under § 8442(b). We further hold
that, pursuant to the Texas court’s turnover order, David
Moulton assigned to Ms. Byrum all available death bene-
fits to which he may have had a claim under FERS,
including both the lump sum and the annuity in
§ 8442(b). That much we can lay to rest in this case.
B.
We turn now to the Board’s decision that is before us
for review. The only question expressly decided by OPM
and the Board was that Ms. Byrum was not her mother’s
spouse, and therefore was not entitled to claim FERS
death benefits as her mother’s spouse. On appeal, the
Government does not even address this issue, apparently
acknowledging that it is irrelevant to the claim actually
made by Ms. Byrum—that she was entitled to FERS
death benefits as the court-designated assignee of her
mother’s spouse. Instead, the Government urges affir-
mance of the Board’s decision on several alternative
grounds.
BYRUM v. OPM 14
The first point made by the Government relates to the
status of David Moulton. At the time its brief was filed,
the Government suggested that since Mr. Moulton had
been indicted for murder and was soon to be tried, the
court might wish to defer its decision pending the out-
come of the trial. In the Government’s view, a murder
conviction “would be dispositive of this case.” Appellee’s
Br. 9. The court has since been advised that David Moul-
ton has been convicted of the murder of Rebecca Moulton
and is serving a long prison sentence.
Is Mr. Moulton’s conviction dispositive? That de-
pends. Does state law determine whether a murder
conviction works a forfeiture of federal benefits, see Clark,
256 F.3d at 1365 (applying Alabama law), or is there some
kind of federal common law rule specifically for this
circumstance, as the Government here argues? If state
law applies, what is the law of Texas—is there no forfei-
ture until conviction, as Ms. Byrum’s attorney posited in
his request for reconsideration of OPM’s initial decision?
If so, since the assignment to Ms. Byrum was executed
before conviction, would the assignment be valid under
Texas law, or would the conviction relate back to the date
of assignment?
Even assuming the conviction worked a forfeiture of
any claims that David Moulton might have that accrued
from his deceased wife’s employment, would that forfei-
ture apply to the estate of Rebecca Moulton and to her
daughter, who was not a party to the crime? Would such
a forfeiture inure to the benefit of the Government, i.e.,
would the Government get to keep the money earned
through Rebecca Moulton’s many years of service, or are
15 BYRUM v. OPM
the benefits payable in some form to her estate and her
legitimate survivors? 4
These are all interesting questions raised by Ms.
Byrum’s claim for benefits, none of which were addressed
by OPM or by the Board in their decisions. What law and
facts underlie these questions are beyond the record of
decision presented by the Government, and thus not
before this court. See Motor Vehicle Mfrs. Ass’n v. State
Farm Mut. Auto. Ins. Co., 463 U.S. 29, 50 (1983) (“It is
well-established that an agency’s action must be upheld,
if at all, on the basis articulated by the agency itself.”);
SEC v. Chenery Corp., 332 U.S. 194, 196 (1947) (holding
that a reviewing court must judge a decision of an admin-
istrative agency “solely by the grounds invoked by the
agency”). We decline the Government’s invitation to offer
an advisory opinion on such matters, especially when they
were never decided by any authority below and have not
been satisfactorily briefed by the parties.
A second argument raised by the Government in sup-
port of the decision below is that neither a lump sum
payment nor an annuity payable under § 8442(b) is as-
signable as a matter of federal law. In support, the
Government cites 5 U.S.C. § 8470(a), which provides that
many benefits, including those at issue here, are not
assignable except under certain exceptions. One excep-
tion provides: “An individual entitled to an annuity pay-
able from [FERS] may make allotments or assignments of
amounts from the annuity for such purposes as [OPM]
considers appropriate.” 5 U.S.C. § 8465(b). As the Gov-
4 The AJ’s opinion suggests that even if no survivor
annuity is paid, Ms. Byrum may be entitled to a different
lump sum benefit based on the unrefunded amount of her
mother’s retirement deductions during her employment.
See 5 U.S.C. § 8424(d),(e).
BYRUM v. OPM 16
ernment acknowledges, this raises the question of
whether an assignment of an annuity to Ms. Byrum
would be considered by OPM to be “appropriate,” and also
the question of whether the subsection (A) benefit, the
“BEDB,” is an annuity for purposes of this statute.
On the “appropriateness” of an assignment, the Gov-
ernment concedes that OPM has not issued regulations
that state what assignments under what circumstances
would be considered appropriate pursuant to § 8465(b).
Instead, the Government advises that “OPM states that
its practice when it receives a request to assign a FERS
annuity has been to apply the corresponding regulations
issued for a similar statutory provision in the Civil Ser-
vice Retirement System (‘CSRS’), which does not recog-
nize assignments to individuals.” Appellee’s Br. 11-12.
The Government then cites a CSRS regulation, 5 C.F.R.
§ 831.1511, which permits “allotments” from annuity
payments to labor, employment, and similar organiza-
tions, and concludes that CSRS does not recognize as-
signments to individuals.
For argument sake we will make the rather large leap
that a regulation limiting “allotments” could be under-
stood to limit assignments, and that a regulation preclud-
ing the assignment of benefits to individuals but
permitting assignment to favored organizations could
survive due process scrutiny. Even so, we find it interest-
ing that the Government believes our decision in the case
should be based on an undisclosed source in OPM stating
that an unwritten practice of using regulations that do
not apply to the program at issue would bar an employee
from making an otherwise lawful assignment. Be that as
it may, the issue of the assignability of Mr. Moulton’s
interests in these benefits was never decided by either
OPM or the MSPB; as in the case of the forfeiture ques-
17 BYRUM v. OPM
tion, we decline to decide a question not a part of the
decision being reviewed on appeal.
In its final argument, the Government disputes that
these issues were not a part of the decisions being ap-
pealed. According to the Government, we should consider
them to have been decided by OPM and the Board. First
the Government suggests that the court could be creative
and add a few words to OPM’s reconsideration decision.
Where the agency noted that the regulations permit
assignment of life insurance benefits, we are invited to
add language omitted by OPM to the effect that the
regulations for FERS death benefits contain no similar
provision, and hence by implication an assignment of
FERS benefits would be prohibited.
With regard to the subsequently-issued Board deci-
sion, which is the decision actually before us for review,
the Government says that the AJ may not have fully
understood OPM’s position when he recited the numerous
issues not addressed by OPM in its reconsideration deci-
sion. Apparently the Government’s view is that OPM’s
position has always been that the FERS death benefits at
issue are not assignable, notwithstanding OPM’s failure
to address the assignability question in its decisions.
None of this, says the Government, need hinder this court
from addressing the underlying issues presented by Ms.
Byrum’s claim. However, we will not invent administra-
tive decisions that were not issued by the responsible
administrative authority.
As discussed, the correspondence from Ms. Byrum’s
attorney to OPM makes it clear that Ms. Byrum is claim-
ing the death benefits at issue based not on Ms. Byrum’s
relationship to her mother, but on her status as the court-
designated assignee of her mother’s spouse, who on the
BYRUM v. OPM 18
face of it was otherwise entitled to the benefits. In order
for that application for benefits to be decided properly,
several factual and legal questions regarding David
Moulton’s entitlement to the benefits and the assignabil-
ity of those benefits pursuant to the court orders in this
case must be addressed. Neither OPM nor the Board has
addressed the relevant issues, and we will not affirm the
Board’s decision on grounds not relied on by the Board
itself. See Chenery, 332 U.S. at 196.
By not deciding the claim for benefits as submitted,
OPM failed to carry out its statutory duty to Ms. Byrum
and her deceased mother, a long-time federal employee. 5
The Board compounded the problem by affirming OPM’s
reconsideration decision on narrow grounds and declining
to address the issues raised by Ms. Byrum. The AJ
supported his decision by citing the Board’s general rule
that it lacks jurisdiction over a matter in which OPM has
not issued a reconsideration decision. But under an
exception to the Board’s rule, also cited by the AJ, the
Board has jurisdiction to consider a matter not addressed
by OPM if the Board’s failure to do so “could effectively
prevent an appellant from obtaining an adjudication of
his claim.” McLaughlin v. Office of Pers. Mgmt., 62
M.S.P.R. 536, 546-47 (1994), aff’d, 47 F.3d 1181 (Fed. Cir.
1995) (Table). Since there is little doubt that Ms. Byrum
has been prevented from obtaining an adjudication of her
claim, the Board’s decision to affirm OPM’s reconsidera-
tion decision without addressing the issues actually
5 See 5 U.S.C. § 1103(a)(5) (charging the Director of
OPM with “executing, administering, and enforcing—(A)
the civil service rules and regulations of the President
and the Office and the laws governing the civil service;
and (B) the other activities of the Office including retire-
ment and classification activities”).
19 BYRUM v. OPM
presented by Ms. Byrum’s claim was arbitrary, capricious,
and not in accordance with law. See 5 U.S.C. § 7703(c).
It might be suggested that we are making a federal
case out of an unfortunate incident, and that the hurdles
to be overcome by Ms. Byrum in her search for these
benefits are so great that it is a waste of time and energy
for us to require that it be pursued further. In the end
Ms. Byrum’s effort may prove futile, but then again it
may not. That is not the point. The point is whether Ms.
Byrum was given a fair opportunity to make her case, and
have it decided according to law. Regrettably, the Gov-
ernment has thus far chosen to deny Rebecca Moulton in
death the benefits she paid for during her life of federal
service, without a fair hearing on the real issues in the
case. The Justice Department’s defense of OPM’s decision
and of the Board’s affirmance is simply inexplicable. It is
not the duty of the Justice Department simply to try to
win cases for the Government; as President Lincoln
famously said, “It is as much the duty of Government to
render prompt justice against itself, in favor of citizens, as
it is to administer the same, between private individu-
als.” 6
CONCLUSION
For the reasons explained, the decision of the Board is
vacated and the matter is remanded to the Board; the
Board is to return the matter to OPM with instructions to
give Ms. Byrum a full and complete review and decision of
the claim made, including all issues related thereto. If
the matter is thereafter appealed to the Board, the
Board’s review shall be as broad and complete as neces-
6 First Annual Message to Congress (Dec. 3, 1861).
This quotation is engraved at the entrance to our court-
house.
BYRUM v. OPM 20
sary to address all of the issues brought to it by the peti-
tioner.
VACATED AND REMANDED WITH
INSTRUCTIONS
COSTS
Costs to Petitioner.