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DISTRICT OF COLUMBIA COURT OF APPEALS
No. 14-SP-117
CHERYL RIVERA, APPELLANT,
V.
JACK LEW, et al., APPELLEES.
On Certification
from the United States Court of Appeals
for the District of Columbia Circuit
(Case No. 13-5222)
(Submitted March 13, 2014 Decided September 11, 2014)
Ronald C. Machen Jr., United States Attorney, and R. Craig Lawrence and
Alan Burch, Assistant United States Attorneys, filed a motion for summary
affirmance on behalf of the federal appellees.
Lonie Anne Hassel and Julia E. Zuckerman filed a motion for summary
affirmance on behalf of appellees District of Columbia Retirement Board and
District of Columbia Police Officers‟ and Firefighters‟ Retirement Plan.
Raymond S. Dietrich filed an opposition to the motions for summary
affirmance on behalf of appellant.1
1
These motions and the opposition were filed in the United States Court of
Appeals for the District of Columbia Circuit. The parties have filed a joint
statement advising that these papers and the record in the United States District
Court provide this court with all that it needs to decide the certified question. See
D.C. App. R. 22 (a)(2).
2
Before WASHINGTON, Chief Judge, and FISHER and EASTERLY, Associate
Judges.
FISHER, Associate Judge: Pursuant to D.C. Code § 11-723 (2012 Repl.), the
United States Court of Appeals for the District of Columbia Circuit certified the
following question of law to this court:
When a District of Columbia employee dies while still
employed, must the Mayor comply with a posthumously-
issued nunc pro tunc court order that on its face relates
back to a date before the employee‟s death and
retroactively amends a divorce settlement agreement to
provide the employee‟s former spouse with entitlement to
benefits in a way that is inconsistent with the last benefits
election executed by the employee prior to his death?
See D.C. Code §§ 1-529.02(c), 1-529.03(b), (c).
We answer that the Mayor need not comply with such an order, reserving an issue
that is not presented by the facts of this case.
I. Legal Framework
A. The Retirement Plan
The District of Columbia Retirement Board (DCRB) is responsible for
managing the retirement assets of the District of Columbia‟s judges, teachers,
3
firefighters, and police officers. D.C. Code §§ 1-711 to 1-716 (2006 Repl. & 2009
Supp.). In administering the District of Columbia Police Officers‟ and
Firefighters‟ Retirement Plan, the DCRB must “determine the amount of any
payments for annuities or other retirement or disability benefits.” D.C. Code
§ 1-903.04 (a) (2006 Repl.). As part of this determination, “the Board may make
reasonable interpretations of and implement all governing authorities.” D.C. Code
§ 1-711 (e) (2009 Supp.). “Although our review of legal issues (such as
interpretation of statutes and regulations) is de novo, we defer to the agency‟s
interpretation of the statute and regulations it is charged by the legislature to
administer, unless its interpretation is unreasonable or is inconsistent with the
statutory language or purpose.” District of Columbia Office of Human Rights v.
District of Columbia Dep’t of Corr., 40 A.3d 917, 923 (D.C. 2012). “That
deference is based on the agency‟s presumed expertise in construing the statute it
administers.” Id. (internal quotation marks omitted).
The United States Treasury Department‟s Office of D.C. Pensions (ODCP)
is responsible for benefits accrued for service rendered by District of Columbia
firefighters and police officers prior to June 30, 1997. See D.C. Code §§ 1-
801.02 (10), 1-803.01 (a), and 1-803.02 (2006 Repl.). Thus, when an employee‟s
service occurred before and after June 30, 1997, his benefits are partly the
4
responsibility of a federal agency (ODCP) and partly the responsibility of a district
agency (DCRB). See D.C. Code § 1-803.02 (d) (2006 Repl.). Although the initial
benefit determinations are made by the DCRB, each agency conducts an
independent review based on its own statutes and regulations before issuing
separate rulings on appeal. See D.C. Code §§ 1-805.01 to .02 (2006 Repl.);
31 C.F.R. §§ 29.404-05 (2009). These agencies coordinated their decisions in this
matter, but the certified question only asks us to interpret District of Columbia law.
When a member of the District of Columbia Police Officers‟ and
Firefighters‟ Retirement Plan dies before retirement, each of his survivors is
entitled to an annuity that “shall begin on the day after the date on which the
member or former member dies[.]” D.C. Code § 5-716 (e)(1), (2) (2009 Supp.).
“The term „survivor‟ means a person who is entitled to [an] annuity . . . based on
the service of a deceased member[,]” and is limited to a plan member‟s surviving
children, 2 widow, or widower. D.C. Code §§ 5-701 (8), 5-716 (b)-(c) (2009
Supp.). If a member “dies prior to retirement leaving no survivor entitled to
receive an annuity[,] . . . all deductions for retirement made from the salary of such
2
Children qualify as survivors while living, unmarried, and under the age of
eighteen (or twenty-two if a full-time student or any age if incapable of self-
support due to a disability incurred before reaching the age of eighteen).
D.C. Code § 5-716 (e)(2)-(3) (2009 Supp.).
5
deceased member” shall be paid “[t]o the beneficiary or beneficiaries designated in
writing by such member[.]” D.C. Code § 5-706 (c) (2008 Supp.). As the law
indicates, a designated beneficiary may only receive this lump sum payment of
retirement contributions when a plan member dies without leaving survivors
eligible to receive a survivor annuity.
B. The Spouse Equity Amendment Act
Noting that “[c]ourt orders purporting to award a survivor annuity to a
former spouse are currently unenforceable[,]” the Council of the District of
Columbia adopted the Spouse Equity Amendment Act of 1988 in order “to
conform the District‟s remaining retirement systems as much as possible with the
changes made in” the federal Civil Service Retirement System that, “among other
things, . . . permit[] a court to award survivor annuities to former spouses[.]”
D.C. Council, Report on Bill 7-389, District of Columbia Spouse Equity
Amendment Act of 1988, at 1 (October 27, 1988) (emphasis in original). Under this
law, however, a former spouse is not entitled to a survivor annuity unless a
“qualifying court order” (sometimes referred to as a “QDRO”) “by its terms
awards to a former spouse . . . a survivor annuity.” D.C. Code § 1-529.02 (c)
(2001).
6
Modeled after a federal statute enacted in 1978, the Spouse Equity
Amendment Act of 1988 requires the Mayor to “comply with any qualifying court
order that is issued prior to the employee‟s retirement.” D.C. Code § 1-529.03 (b)
(2001). The Mayor is also required to “comply with any qualifying court order
that is issued after the employee‟s retirement only to the extent it is consistent with
any election previously executed at the time of retirement by the employee
regarding that former spouse.” D.C. Code § 1-529.03 (c) (2001). Neither the
original federal statute nor the Spouse Equity Amendment Act of 1988 explicitly
addressed whether court orders issued after the death of an employee who has not
yet retired are enforceable.
Noting this lack of clarity, Congress amended federal pension law in 1986.
A summary of the amendment identified the statutory “inconsistency” under which
“a court order could be changed following the death of an employee who has not
yet retired[,]” but could not be “amended after the employee‟s retirement[.]”
131 Cong. Rec. S18098 (daily ed. Dec. 19, 1985) (section-by-section summary of
Senate committee amendment to H.R. 3384). For this reason, Congress amended
the statute in order to “bar[] changes in court orders after an employee‟s death as
well as after retirement.” Id.; see 5 U.S.C. § 8341 (h)(4) (2009) (the election “shall
7
not be effective . . . if such modification is made after the retirement or death of
the employee”) (emphasis added). Likewise, “[a] court order awarding a former
spouse [a] survivor annuity” may not be processed under federal regulations “if it
is issued after the date of retirement or death of the employee and modifies or
replaces the first order dividing the marital property of the employee or retiree and
the former spouse.” 5 C.F.R. § 838.806 (a) (2009). No similar statutes or
regulations focusing on the death of the employee have been adopted by the Mayor
or Council of the District of Columbia.
II. Factual and Procedural Background
Although we have been asked to answer a question of law, it will be helpful
to place that issue in its factual context. Luis Rivera was an active Metropolitan
Police Department officer and a member of the District of Columbia Police
Officers‟ and Firefighters‟ Retirement Plan when he died on December 1, 2009.
He had been married to Cheryl Rivera from October 10, 1992, until February 27,
2009, when the Circuit Court of Brevard County, Florida, issued a final judgment
dissolving their marriage. That judgment also ratified and incorporated a
Property/Asset Settlement Agreement. Neither the judgment nor the agreement
mentioned a survivor annuity for Ms. Rivera in the event of Mr. Rivera‟s death.
8
Instead, the settlement agreement states that “the wife is entitled to and shall
receive her half marital portion of the husband‟s Washington D.C.‟s Police
Department Pension[,]” and provides a formula for calculating the amount of that
portion. This provision of the agreement refers to a payment wholly distinct from
a survivor annuity. See D.C. Code § 1-529.02 (c) (2001).
At the time of his death, Luis Rivera was unmarried and had two children: a
daughter by Ms. Rivera and a son by Lourdes Lopez. Each child was entitled to a
survivor annuity. Ms. Rivera also sought a survivor annuity as a former spouse,
but the DCRB denied this claim because none of the supporting documents
Ms. Rivera provided “constitute[d] a QDRO (either separately or together) as
required under the District of Columbia Spouse Equity Act of 1988 (see D.C. Code
§§ 1-529.01 et seq.).” Without an approved QDRO, the DCRB explained, it “must
look to the language of the Settlement Agreement to determine whether there is
clear intent as to the survivor benefit, and to the provisions of the Plan related to
who is eligible for survivor benefits when a participant dies before retiring.” 3
Based on this analysis, it determined that Ms. Rivera was not entitled to a survivor
annuity.
3
Although the statute refers to a “survivor annuity,” the DCRB commonly
uses the term “survivor benefit” to describe the same thing.
9
On July 2, 2010, Ms. Rivera, through her attorney, requested that the DCRB
stipulate to the entry of a nunc pro tunc QDRO, with the explanation that “[t]he
parties intended for Ms. Rivera to receive survivor benefits from the plan.”
(Emphasis in original.) She contended that this intent is “confirmed by the fact
that [Mr. Rivera] designated Cheryl Rivera as the beneficiary under the plan and he
declined to change the beneficiary designation after his divorce.” Here, Ms. Rivera
was referring to a form in which Mr. Rivera designated her to receive the “refund”
of contributions that would be made if he died without leaving a survivor entitled
to receive a survivor annuity.
The DCRB “reviewed the request and [was] unable to accept the QDRO as it
is written.” Although the DCRB “recognize[d] that a QDRO may be issued after
the death of a plan participant, [Ms. Rivera‟s] proposed QDRO includes a spousal
survivor benefit that was not included in the parties‟ Property/Asset Settlement
Agreement.” 4 Furthermore, the DCRB was not convinced that the beneficiary
designation form “clearly confirms the parties‟ intention for Ms. Rivera to receive
4
The DCRB did not explain the circumstances in which a QDRO could be
issued after an employee‟s death. It did, however, make clear that this particular
posthumous order could not be enforced.
10
spousal survivor benefits under the Plan. In fact, the Plan‟s Designation of
Beneficiary form clearly states that . . . the beneficiary designation does not affect
the rights of any survivors who may qualify for annuity benefits.” This
designation has no effect on survivor benefits because a designated beneficiary
only receives a lump sum payment of retirement contributions when the plan
member “dies prior to retirement leaving no survivor entitled to receive” a survivor
annuity. See D.C. Code § 5-706 (c) (2008 Supp.). The DCRB later noted that, if
anything, the designation of Ms. Rivera as the beneficiary of a lump sum payment
of retirement contributions demonstrated Mr. Rivera‟s intent that she not receive a
survivor annuity (“If he intended that you would receive a survivor annuity, there
would be no need to also provide that you would receive these retirement
contributions, because you could not get both.”).
After receiving the DCRB‟s response, Ms. Rivera moved for the entry of her
proposed QDRO, nunc pro tunc, in the Circuit Court of Brevard County, Florida,
arguing that “[t]he parties intended for CHERYL RIVERA to receive survivor
benefits under the Plan when they entered into their marital settlement agreement
on March 6, 2008.” In support of this contention, Ms. Rivera submitted the same
beneficiary designation form she had previously sent to the DCRB. She also
attached her own affidavit and the affidavit of her former husband‟s attorney, both
11
indicating that the parties intended to include a QDRO that provided survivor
benefits for Ms. Rivera in the original Property/Asset Settlement Agreement. On
August 12, 2010, the Brevard County Circuit Court issued Ms. Rivera‟s proposed
QDRO, nunc pro tunc to February 27, 2009.
When Ms. Rivera submitted a copy of the nunc pro tunc domestic relations
order (DRO), the DCRB informed her that it and the ODCP would each separately
“consider the . . . submission as an appeal of DCRB‟s . . . denial of your request for
a spousal survivor benefit pursuant to a DRO.” It also explained that “[i]f the
agencies determine that you are entitled to a spousal survivor benefit, the terms of
the Plan require that the benefits currently being paid to the two children be
significantly reduced.” The DCRB subsequently denied Ms. Rivera‟s appeal,
noting that “[a]bsent a qualifying court order entered into prior to an active Plan
participant‟s death, survivor rights under the Plan are fixed at the time of the
participant‟s death by operation of law.” “At the time of Mr. Rivera‟s death,” the
DCRB added, “a qualifying DRO had not been submitted” and “[n]either the Plan
nor the Spouse Equity Act expressly define[s] a posthumous nunc pro tunc DRO as
a qualifying court order requiring compliance.” Thus, the DCRB again ruled that
Ms. Rivera did “not qualify as a former spouse for purposes of a survivor benefit
and DCRB cannot grant your request.”
12
Ms. Rivera sought judicial review in the United States District Court for the
District of Columbia by filing a civil action as authorized by the retirement statute.
See D.C. Code §§ 1-747 (a)(1)(B), 1-815.01 (a)(1), 1-815.02 (a) (2006 Repl.).
After that court granted the DCRB‟s motion for summary judgment, Ms. Rivera
appealed the ruling to the United States Court of Appeals for the District of
Columbia Circuit, which in due course presented us with the certified question of
law quoted above.
III. Analysis
In cases such as this one, we defer to the agency‟s interpretation of the
statute it administers, unless its interpretation is unreasonable or is inconsistent
with the statutory language or purpose. Nothing in the language or legislative
history of the Spouse Equity Amendment Act of 1988 indicates that a court order
like Ms. Rivera‟s must be enforced.
Ms. Rivera points to the statutory language which requires the Mayor to
“comply with any qualifying court order that is issued prior to the employee‟s
retirement.” D.C. Code § 1-529.03 (b) (2001). She argues that the posthumous
13
nunc pro tunc order issued on August 12, 2010, qualifies under this provision
because Mr. Rivera had not in fact retired prior to that date. However,
Mr. Rivera‟s death precluded retirement, and it was eminently reasonable for the
DCRB to conclude that the posthumous order had not been “issued prior to the
employee‟s retirement.”
The law also provides that the Mayor is permitted to comply with a
qualifying court order “issued after the employee‟s retirement only to the extent it
is consistent with any election previously executed at the time of retirement by the
employee regarding that former spouse.” D.C. Code § 1-529.03 (c) (2001).
Although the statute does not explicitly address how this provision applies when
the employee dies before retiring, we think it is sensibly construed like federal law.
Death, like retirement, establishes the demarcation line.
Under federal law, posthumous orders purporting to amend a settlement
agreement were expressly rendered unenforceable by a 1986 amendment of the
U.S. Code and by subsequently promulgated federal regulations. These changes
were not incorporated into the District of Columbia‟s Spouse Equity Amendment
Act of 1988, however, and Ms. Rivera has argued that this was a conscious choice
by the Mayor and Council designed to permit such orders to be enforced. But we
14
have often noted “the hazard of attempting to impute meaning to legislative
inaction unless it is absolutely clear the Council can be said to have known about
an issue, cared about it, and somehow dealt with it.” Sch. St. Assocs. Ltd. P’ship v.
District of Columbia, 764 A.2d 798, 812-13 (D.C. 2001). Moreover, we have seen
no evidence that the Council was aware of the federal clarifying amendments, and
we therefore cannot conclude that its failure to incorporate them demonstrates that
it intended a different result. In fact, one of the stated purposes of the District of
Columbia‟s statute was to conform to federal law, and we see no basis for inferring
from the Council‟s silence that it intended in this respect to diverge from that law.
The DCRB deemed the survivor annuities payable under the retirement plan
to be “fixed” at the time of Mr. Rivera‟s death. Because the plan allows members
to provide a survivor annuity for former spouses, the DCRB looked for a QDRO
issued prior to Mr. Rivera‟s death that “by its terms” entitled his former spouse to
an annuity, and it examined the settlement agreement for “clear intent as to the
survivor benefit.” There was no such QDRO and the settlement agreement did not
mention a survivor annuity.
Although Ms. Rivera attempted to generate a QDRO after Mr. Rivera‟s
death, these efforts were in vain. As the DCRB explained, “[n]either the Plan nor
15
the Spouse Equity Act expressly define[s] a posthumous nunc pro tunc DRO as a
qualifying court order requiring compliance.” In fact, “[b]ased on the Spouse
Equity Act‟s plain statutory language,” Ms. Rivera‟s court order “is not a
qualifying court order.” This was a “reasonable interpretation” of “governing
authorities.” D.C. Code § 1-711 (e) (2009 Supp.).
A contrary interpretation would indulge the fiction that a deceased employee
remains capable of retiring, allowing posthumous court orders to significantly
amend survivor annuities long after they should have been fixed. It would also
allow inconsistent determinations affecting plan beneficiaries, such as Mr. Rivera‟s
children, whose benefits are jointly administered by the DCRB and the ODCP.5
It is not our role to decide this case, but only to determine whether the
Mayor must comply with a posthumously issued court order of the type described
5
In this case, 44.9123% of Mr. Rivera‟s service time occurred before
June 30, 1997, so the ODCP is responsible for that percentage of each survivor
annuity. However, federal law and regulations prohibit the ODCP from
recognizing the Florida court‟s posthumous order as a QDRO. Thus, an
interpretation requiring the DCRB to recognize that same order would cause a
direct conflict between the agencies that administer each portion of the survivor
annuity Ms. Rivera seeks.
16
in the certified question of law. For the reasons described above, we answer that
he or she need not comply with such an order.6
In accordance with D.C. Code § 11-723 (g) (2012 Repl.), the Clerk is
directed to transmit a copy of this opinion to the United States Court of Appeals for
the District of Columbia Circuit and to each of the parties.
It is so ordered.
6
We reserve one question that is not presented by the facts of this case. A
genuine nunc pro tunc entry “„make[s] the record speak the truth by recording or
correctly evidencing an act done or judgment rendered by the court at a former
time and not carried into the record[.]‟” Appeal of A.H., 590 A.2d 123, 131 (D.C.
1991). However, “„[i]t is not the function of an order nunc pro tunc to alter the
judgment actually rendered. Its purpose is to merely correct the record of the
judgment.‟” Id. In other words, “„[n]othing can be entered nunc unless it actually
happened tunc.‟” Id. (quoting Council of Sch. Officers v. Vaughn, 553 A.2d 1222,
1231 (D.C. 1989) (Schwelb, J., concurring in part and dissenting in part)). We
express no views on whether the Mayor would be required to comply with a
posthumously issued order that truly qualified as a nunc pro tunc entry that should
have been made before the plan member‟s death.