NOTE: Pursuant to Fed. Cir. R. 47.6, this disposition
is not citable as precedent. It is a public record.
United States Court of Appeals for the Federal Circuit
06-3073
KATHRYN A. HINOJOSA,
Petitioner,
v.
OFFICE OF PERSONNEL MANAGEMENT,
Respondent.
__________________________
DECIDED: November 9, 2006
__________________________
Before LOURIE, RADER, and SCHALL, Circuit Judges.
SCHALL, Circuit Judge.
DECISION
Kathryn A. Hinojosa petitions for review of the final decision of the Merit Systems
Protection Board (“Board”) that affirmed the reconsideration decision of the Office of
Personnel Management (“OPM”) denying Ms. Hinojosa’s application for a former
spouse survivor annuity. Hinojosa v. Office of Pers. Mgmt., No. CH0831050485-I-1
(M.S.P.B. October 4, 2005) (“Final Decision”). We affirm.
DISCUSSION
I.
Ms. Hinojosa is the former spouse of Enrique Hinojosa (“Mr. Hinojosa”), who
retired from federal service as an air traffic controller on March 3, 2003. At the time of
his retirement, Mr. Hinojosa elected to receive a reduced annuity with a survivor benefit
for Ms. Hinojosa. On July 21, 2003, Mr. and Ms. Hinojosa divorced, and the Court of
Common Pleas for Sandusky County, Ohio (“state court”) issued a divorce decree,
entitled Consent Final Judgment Entry (“July Order”). The July Order contained a
division of the marital property, including pension benefits, specifically stating that Ms.
Hinojosa was awarded “50% of the marital portion” of Mr. Hinojosa’s “retirement
benefit.” The July Order provided that the parties were to agree on a Qualified
Domestic Relations Order (“QDRO”) and outlined several assumptions to govern the
QDRO, including one stating that “the benefits assigned to the alternate payee (Wife)
shall include any and all temporary and supplemental benefits.” The July Order also
specified that the state court retained “jurisdiction with respect to the QDRO to the
extent required to maintain its qualified status and original intent of the parties” and
“jurisdiction to enter further orders as are necessary to enforce the assignment of the
benefits” to Ms. Hinojosa. The July Order also provided that Mr. Hinojosa “shall not
take actions, affirmative or otherwise, that can circumvent the terms and provisions of
the [QRDO], or that may diminish or extinguish the rights and entitlements” of Ms.
Hinojosa.
On August 8, 2003, Mr. Hinojosa married Vallie Valentine. On October 29, 2003,
the state court issued the QDRO (“October Order”), which provided that Ms. Hinojosa
06-3073 2
would receive the maximum possible former spouse survivor annuity unless Mr.
Hinojosa elected to provide a survivor annuity for a new spouse married after retirement
in which case Ms. Hinojosa would receive a pro-rata share of the former spouse
annuity.
Ms. Hinojosa submitted both the July and October Orders to OPM when she
applied for a former spouse survivor annuity on June 29, 2005. OPM, in its February
14, 2005 reconsideration decision, denied Ms. Hinojosa’s claim for a survivor annuity,
finding that the July Order was the first order dividing marital property and that the
October Order was an impermissible modification of the July Order because, under 5
C.F.R. § 838.806, a first order dividing marital property cannot be modified after the
retirement or death of the employee. OPM also determined that the language of the
July Order did not expressly provide a former spouse survivor benefit, as required under
5 C.F.R. § 838.804.
Ms. Hinojosa timely appealed to the Board. In an initial decision dated June 2,
2005, the administrative judge to whom the appeal was assigned sustained the
agency’s action. Hinojosa v. Office of Pers. Mgmt., No. CH0831050485-I-1 (M.S.P.B.
June 2, 2005) (“Initial Decision”). The Initial Decision became the final decision of the
Board on October 4, 2005 when the Board denied Ms. Hinojosa’s petition for review for
failure to meet the criteria for review set forth at 5 C.F.R. § 1201.115(d). Final Decision.
This appeal followed. We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(9).
II.
Our scope of review in an appeal from a decision of the Board is limited.
Specifically, we must affirm the Board’s decision unless we find it to be arbitrary,
06-3073 3
capricious, an abuse of discretion, or otherwise not in accordance with law; obtained
without procedures required by law, rule, or regulation having been followed; or
unsupported by substantial evidence. 5 U.S.C. § 7703(c); Kewley v. Dep’t of Health &
Human Servs., 153 F.3d 1357, 1361 (Fed. Cir. 1998).
We held, in both Vaccaro v. Office of Personnel Management, 262 F.3d 1280,
1287 (Fed. Cir. 2001) and Rafferty v. Office of Personnel Management, 407 F.3d 1317,
1323 (Fed. Cir. 2005), that a second court order awarding a survivor annuity was an
improper modification of a first court order, which did not mention an annuity, under 5
U.S.C. § 8341(h)(4) and the pertinent OPM regulations, including 5 C.F.R. § 838.806.1
On appeal, Ms. Hinojosa argues that Vaccaro and Rafferty are distinguishable from her
case because Congress did not intend for section 8341(h)(4) to apply to parties who
were married at the time of retirement and who subsequently divorce as long as the
spouse did not waive her right to a survivor annuity, the modification does not increase
the survivor annuity beyond what was agreed to in the retirement application, and the
1
Section 8341(h)(4) states:
For purposes of this subchapter, a modification in a decree, order,
agreement, or election referred to in paragraph (1) of this subsection shall
not be effective—
(A) if such modification is made after the retirement or death of the
employee or Member concerned, and
(B) to the extent that such modification involves an annuity under this
subsection.
In addition, section 838.806(b) provides:
For purposes of awarding, increasing, reducing, or eliminating a former
spouse survivor annuity, or explaining, interpreting or clarifying a court
order that awards, increases, reduces or eliminates a former spouse
survivor annuity, the court order must be—
(1) Issued on a day prior to the date of retirement or date of death of the
employee; or
(2) The first order dividing the martial property of the retiree and the former
spouse.
06-3073 4
employee has not died. Ms. Hinojosa therefore contends that the October Order did not
impermissibly modify the July Order in violation of section 8341(h)(4).
Ms. Hinojosa’s contention is without merit for two reasons. First, Vaccaro and
Rafferty are not distinguishable from the present case because 5 C.F.R. § 838.806 lays
out specific requirements for court orders awarding survivor annuities based on the
timing and content of the court orders and not based on the funding of the annuities or
the employee’s death. Second, the clear and unambiguous language of section
8341(h)(4) and 5 C.F.R. § 838.806 defeats Ms. Hinojosa’s arguments regarding
legislative history and Congressional intent because clear and unambiguous statutory
language must be interpreted according to its plainly-expressed terms. See Consumer
Reports Safety Comm’n v. GTE Sylvania, 447 U.S. 102, 108 (1980). We see no error in
the Board’s decision that the October Order was an impressible modification of the July
Order.
Ms. Hinojosa alternatively argues that the July Order itself awarded Ms. Hinojosa
a survivor annuity. Specifically, Ms. Hinojosa maintains that the language in the order
“any and all temporary and supplemental benefits” and the prohibition against Mr.
Hinojosa taking “actions, affirmative or otherwise, that can circumvent the terms and
provisions of the [QRDO], or that may diminish or extinguish the rights and entitlements
of the non-participant (Wife)” expressly provide for a survivor annuity. Even though we
held that “magic words” are not required to award a survivor annuity, a court order or
settlement agreement must contain a “clause which could fairly be read as awarding a
[Civil Service Retirement System] survivor annuity.” Fox v. Office of Pers. Mgmt., 100
06-3073 5
F.3d 141, 145-46 (Fed. Cir. 1996). Here, the July Order contains no term that could be
fairly read to award a survivor annuity.
Finally, we have considered Ms. Hinojosa’s claim that the state court in the July
Order reserved jurisdiction to award Ms. Hinojosa a survivor annuity in the October
Order. Ms. Hinojosa’s argument that a reservation of jurisdiction is permissible is
directly contrary to OPM regulations. OPM regulations disallow the use of reservations
since an order awarding a survivor annuity must be the first order and the first order
does not include any court order issued under reserved jurisdiction. See 5 C.F.R. §§
838.806, 838.1004(e)(4)(ii)(B); see also Rafferty, 407 F.3d at 1323. The state court
therefore could not properly reserve jurisdiction to award Ms. Hinojosa a survivor
annuity.
For the foregoing reasons, the final decision of the Board is affirmed.
Each party shall bear its own costs.
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