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
06-3130
JOE P. JARRELL,
Petitioner,
v.
OFFICE OF PERSONNEL MANAGEMENT,
Respondent,
and
JUDY B. MONTAGUE,
Intervenor.
__________________________
DECIDED: October 5, 2006
__________________________
Before MICHEL, Chief Judge, PLAGER, Senior Circuit Judge, and RADER, Circuit
Judge.
PER CURIAM.
Joe P. Jarrell seeks review of the final order of the Merit Systems Protection
Board (Board) finding that the Office of Personnel Management (OPM) was in
compliance with an earlier Board order to recalculate his ex-wife’s share of his
retirement annuity. Montague v. Office of Pers. Mgmt., No. DC-0831-01-0651-X-1 (Dec.
6, 2005). We affirm.
Mr. Jarrell and Judy B. Montague were divorced on May 10, 1991. The divorce
decree provided that Ms. Montague would receive a share of Mr. Jarrell’s Civil Service
Retirement System (CSRS) annuity benefits according to a specified formula. The
decree further provided that Ms. Montague’s interest in her ex-husband’s CSRS
retirement annuity and survivor benefits “shall exclude increases as a result of merit
raises or promotions occurring after the date of divorce but shall include all future cost
of living adjustments (COLAS).” Mr. Jarrell retired from federal service on June 3, 1999,
and OPM subsequently calculated Ms. Montague’s share of his retirement annuity.
Ms. Montague disagreed with OPM’s calculations and filed an appeal with the
Board. The Board reversed OPM’s reconsideration decision and ordered OPM to
recalculate Ms. Montague’s share. Montague v. Office of Pers. Mgmt., No. DC-0831-
01-0651-X-1 (Nov. 16, 2001) (Initial Decision); Montague v. Office of Pers. Mgmt., 93
M.S.P.R. 174 (2002) (Final Order). Ms. Montague subsequently filed a petition for
enforcement of the Board’s order. An administrative judge (AJ) found that OPM was in
compliance, but in an order dated April 22, 2005, the Board reversed the AJ’s initial
compliance decision and ordered OPM to recalculate Ms. Montague’s share of Mr.
Jarrell’s annuity according to the following procedure. Montague v. Office of Pers.
Mgmt., 98 M.S.P.R. 440 (2005). First, OPM was ordered to calculate what Mr. Jarrell’s
“high-three” salary would have been at the date of his retirement in 1999 had he
received COLAs but no merit raises or promotions after May 10, 1991, the date of the
divorce. Id. at 442. OPM then was ordered to calculate a hypothetical annuity based
on that high-three figure and the entire length of Mr. Jarrell’s creditable service up until
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the date of his retirement. Id. Pursuant to the formula in the divorce decree, Ms.
Montague was to receive 30.57% of that hypothetical annuity. Id.
On June 8, 2005, OPM submitted to the Board a statement of compliance with
the Board’s April 22, 2005, order. Mr. Jarrell subsequently filed a “cross petition for
review” in which he alleged that OPM erred by including in its calculation annual pay
adjustments, all of which he contended were merit pay or promotion increases. In
response, OPM explained that the Board’s directions to exclude merit raises and
promotions but include COLAs implied that annual adjustments to the basic rate of pay
under 5 U.S.C. § 5303 should be included in its calculation. The Board concluded that
OPM was in compliance with its April 22, 2005, order and dismissed the petition for
enforcement.
Before this court, Mr. Jarrell repeats the argument that OPM should have
excluded from its calculation all adjustments to his salary after May 10, 1991. Based on
our review of the record, however, we agree with Ms. Montague that the Board’s
interpretation of the divorce decree is reasonable and that OPM correctly calculated Ms.
Montague’s share of Mr. Jarrell’s retirement annuity in accordance with the Board’s
directions. Under OPM’s own regulations and guidelines for interpreting divorce
decrees, a court order awarding a former spouse a share of an employee annuity based
on a formula is interpreted to entitle the former spouse to all salary adjustments after the
date of the divorce unless the court order directly and unequivocally orders otherwise. 5
C.F.R. § 838.622(b)(1)(i); 5 C.F.R. Pt. 838, Subpt. J, App. A, Part I, Section B. In this
case, the divorce decree specifically excludes only merit and promotion increases; all
other salary adjustments, including annual pay adjustments under 5 U.S.C. § 5303, are
06-3130 3
therefore properly included in OPM’s calculation of Ms. Montague’s share of Mr.
Jarrell’s retirement annuity. In addition, there is nothing in the record to indicate that
OPM has incorrectly adjusted Ms. Montague’s annuity for COLAs after the date of Mr.
Jarrell’s retirement. See 5 C.F.R. § 838.622(b)(1)(ii); 5 C.F.R. Pt. 838, Subpt. J, App. A,
Part I, Section B.
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