UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ALAN W. CARTER, DOCKET NUMBER
Appellant, CH-0831-14-0619-I-1
v.
OFFICE OF PERSONNEL DATE: March 4, 2015
MANAGEMENT,
Agency,
and
KAREN CARTER,
Intervenor.
THIS FINAL ORDER IS NO NPRECEDENTIAL 1
Alan W. Carter, Saint Louis, Missouri, pro se.
Cynthia Reinhold, Washington, D.C., for the agency.
Erin M. Zielinski, Esquire, St. Louis, Missouri, for the intervenor.
BEFORE
Susan Tsui Grundmann, Chairman
Mark A. Robbins, Member
1
A nonprecedential order is one that the Board has determined does not add
sign ificantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
2
FINAL ORDER
¶1 The Office of Personnel Management (OPM) has filed a petition for review
of the initial decision, which reversed its reconsideration decision regarding the
processing of the appellant’s amended domestic relations order (DRO). For the
reasons discussed below, we GRANT OPM’s petition for review, REVERSE the
initial decision, and AFFIRM OPM’s reconsideration decision.
DISCUSSION OF ARGUMENTS ON REVIEW
¶2 The appellant, a former federal employee, submitted his application to
commence Civil Service Retirement System (CSRS) retirement benefits in 2010.
Initial Appeal File (IAF), Tab 4 at 102-05. The appellant was previously married
and divorced during his federal employment. Id. at 77, 102. The divorce
proceedings produced four documents that are material to this appeal. Those
documents are:
(1) a March 3, 1995 Marital Settlement Agreement, id. at 62-76;
(2) a March 3, 1995 Family Court Judgment and Decree of
Dissolution, id. at 77-81;
(3) a June 8, 1995 Domestic Relations Order (1995 DRO), id. at
55—61; and
(4) a March 13, 2013 Amended Domestic Relations Order (amended
DRO), id. at 50-54.
¶3 The appellant’s pension was subject to the terms of the 1995 marital
settlement agreement which resolved the property rights acquired by each party
from the marriage. Id. at 63, 65-67. The 1995 DRO was drafted to comply with
OPM regulations for apportioning benefits under the CSRS. Id. at 55. The 1995
DRO provided that the intervenor would receive a former spouse survivor annuity
at the maximum possible amount. Id. at 59. The amended DRO was drafted to
correct provisions in the 1995 DRO involving CSRS benefits. Id. at 51. In
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particular, the amended DRO changed the former spouse survivor annuity to
provide a “prorata share” based on the duration of the marriage. Id. at 52.
¶4 In 2011, OPM notified the appellant that it had processed his former
spouse’s claim for retirement benefits under the 1995 DRO. Id. at 98. The
appellant filed the amended DRO with OPM in 2013. Id. at 48. OPM notified the
appellant that it could not process the amended DRO because the appellant had
already retired and because it was not the first order dividing the marital property
of the appellant and his former spouse. Id. at 48. The appellant requested
reconsideration of OPM’s decision. Id. at 14. OPM issued a reconsideration
decision that affirmed its initial decision that it could not process the amended
DRO as it related to the survivor annuity benefit. Id. at 5. OPM informed the
appellant of his right to appeal the decision to the Board. Id. at 7.
¶5 The appellant initiated a timely Board appeal challenging OPM’s
reconsideration decision and requested a hearing. IAF, Tab 1 at 1-6. The
administrative judge conducted a conference call with the parties and notified
them that the appellant’s former spouse must be notified of the appeal and given
the right to intervene because the outcome of the appeal would affect her rights
and interests under the retirement plan. IAF, Tab 10 at 1, 3. The appellant’s
former spouse submitted notice of her intent to intervene in the appeal, and the
administrative judge granted the request to intervene. IAF, Tabs 12-13. The
administrative judge conducted a subsequent conference call with all the parties
and reviewed the issues in the appeal. IAF, Tab 14 at 1-3. During the conference
call, the appellant withdrew his request for hearing, so the administrative judge
set a close of record date for submission of evidence and argument. Id. at 3. The
intervenor submitted evidence and argument that she agreed with the appellant’s
argument that the amended DRO properly reflected the intent of the parties’
original settlement agreement. IAF, Tab 16 at 3-4.
¶6 The administrative judge issued an initial decision that reversed OPM’s
reconsideration decision and directed OPM to process the amended DRO as it
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related to the survivor annuity. IAF, Tab 17, Initial Decision (ID) at 6-7. The
administrative judge found that the language of 5 C.F.R. § 838.806(b) allowed for
the processing of the amended DRO because it was issued before the appellant
died. ID at 5. The administrative judge reasoned that, because the subsection
provided for the alternative of the order being issued either the day prior to
retirement or the date of death, OPM could process the amended DRO if the
appellant had not died, even though he had retired. ID at 5. In the alternative,
the administrative judge found that, if 5 C.F.R. § 838.806(a) applied to the DRO,
it was still acceptable for OPM to process. ID at 5. He stated that the amended
DRO modified the 1995 DRO which was the second order that divided the marital
property. ID at 5-6. Because the amended DRO did not modify the first order
dividing the marital property, OPM could process this order. ID at 5-6.
¶7 OPM has filed a timely petition for review on the initial decision. Petition
for Review (PFR) File, Tab 1. The appellant has filed a response to OPM’s
petition for review and seeks an order directing OPM to refund the excess
deductions that it took to fund the survivor benefit provided for in the 1995 DRO.
PFR File, Tab 2 at 11.
¶8 OPM argues that the administrative judge erred in finding the amended
DRO to be acceptable for processing because the appellant retired before the date
the court issued the amended DRO. PFR File, Tab 1 at 8. We agree.
¶9 As set forth in 5 U.S.C. § 8341(h), “a former spouse . . . is entitled to a
survivor annuity under this subsection, if and to the extent expressly provided for
. . . in the terms of any decree of divorce or annulment or any court order or
court-approved property settlement agreement incident to such decree.” 5 U.S.C.
§ 8341(h)(1). Section 8341(h)(4), however, provides that a modification of any
such court-approved property settlement agreement dealing with a survivor
annuity shall not be effective if the modification is made after the employee dies
or retires. 5 U.S.C. § 8341(h)(4). By regulation, OPM has provided that a court
order issued after an annuitant’s retirement or death and modifying the first order
5
dividing the marital property is not acceptable for processing. 5 C.F.R.
§ 838.806(a).
¶10 In his initial decision, the administrative judge provided no case law in
support of his determination that the amended DRO could be processed because
the appellant had only retired but not died. ID at 5. The facts in the present
appeal are similar to those in the case of Partain v. Office of Personnel
Management, 63 F. App’x 473 (Fed. Cir. 2003). Although Partain is an
unpublished decision, the Board may rely on unpublished Federal Circuit
decisions if it finds the court’s reasoning persuasive. Mauldin v. U.S. Postal
Service, 115 M.S.P.R. 513, ¶ 12 (2011). In Partain, the federal employee and his
spouse were divorced in 1994 and their divorce settlement provided for a survivor
annuity for the former spouse. Partain, 63 F. App’x at 473. The employee
retired in 1999. Id. In 2001, the former spouse obtained orders from the divorce
court amending the calculation of the survivor annuity, and OPM denied
processing the adjustments. Id. at 474. The Board found that the 2001 orders
were issued after the employee retired, so they were not effective to change the
1994 order that established his former spouse’s survivor annuity. Id. Our
reviewing court affirmed the Board’s decision, finding no legal error in the
Board’s decision. Id. at 475.
¶11 In the present appeal, the parties were divorced in 1995, and the appellant
retired in 2010. IAF, Tab 4 at 77, 102. The appellant seeks OPM’s processing of
an amended DRO issued in 2013. Id. at 50-53. Therefore, the statutory language
found in 5 U.S.C. § 8341(h)(4) and our case law support OPM’s argument that the
amended DRO cannot be processed because it was issued after the appellant
retired.
¶12 In the alternative, the administrative judge also found that the amended
DRO would be acceptable for processing under 5 C.F.R. § 838.806(a) because it
modified the second order dividing the marital property and not the first order.
ID at 5-6. We disagree.
6
¶13 A “modification” in a decree, order, or agreement referred to in section
8341(h)(1) shall not be effective if the modification is made after the retirement
of the employee concerned and “to the extent that such modification involves an
annuity under this subsection.” 5 U.S.C. § 8341(h)(4); Lim v. Office of Personnel
Management, 98 M.S.P.R. 173, ¶ 6 (2005). As explained in 5 C.F.R. § 838.806:
A court order awarding a former spouse survivor annuity is not a
court order acceptable for processing 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.
Lim, 98 M.S.P.R. 173, ¶ 6 (quoting 5 C.F.R. § 838.806(a)) (emphasis in original).
The amended DRO, regardless of which order the document modifies, runs afoul
of the statutory limits in 5 U.S.C. § 8341(h)(4). First, the amended DRO was
issued after the appellant retired. See 5 U.S.C. § 8341(h)(4)(A). Second, the
amended DRO is a modification involving a survivor annuity. See 5 U.S.C.
§ 8341(h)(4)(B). Because the amended DRO is not effective for purposes of
modifying the provisions for a survivor annuity under 5 U.S.C. § 8341(h)(4),
OPM lacks the discretion to process the amendment. See Lim, 98 M.S.P.R. 173,
¶¶ 8, 10.
¶14 Accordingly, we REVERSE the administrative judge’s initial decision and
AFFIRM OPM’s reconsideration decision. 2
2
We recognize that both parties agree that the terms of the amended DRO reflect the
parties’ actual intent regarding the survivor annuity for the appellant’s former spouse.
IAF, Tab 16 at 4. However, because the appellant retired from the federal service prior
to correcting the DRO, OPM is barred by statute from processing the amended DRO and
the statute contains no provision for amendment due to mutual mistake. See 5 U.S.C.
§ 8341; cf. James v. Office of Personnel Management, 372 F.3d 1365, 1369-70 (Fed.
Cir. 2004) (declining to invalidate an election of a survivor annuity for a new spouse
based on mutual mistake, in part to avoid the uncertainty that could result from
allowing introduction of parole evidence contradicting the actual election).
7
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
You have the right to request the United States Court of Appeals for the
Federal Circuit to review this final decision. You must submit your request to the
court at the following address:
United States Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, DC 20439
The court must receive your request for review no later than 60 calendar
days after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec.
27, 2012). If you choose to file, be very careful to file on time. The court has
held that normally it does not have the authority to waive this statutory deadline
and that filings that do not comply with the deadline must be dismissed. See
Pinat v. Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).
If you need further information about your right to appeal this decision to
court, you should refer to the federal law that gives you this right. It is found in
Title 5 of the United States Code, section 7703 (5 U.S.C. § 7703) (as rev. eff.
Dec. 27, 2012). You may read this law as well as other sections of the United
States Code, at our website, http://www.mspb.gov/appeals/uscode.htm.
Additional information is available at the court's website, www.cafc.uscourts.gov.
Of particular relevance is the court's "Guide for Pro Se Petitioners and
Appellants," which is contained within the court's Rules of Practice, and Forms 5,
6, and 11.
If you are interested in securing pro bono representation for your court
appeal, you may visit our website at http://www.mspb.gov/probono for a list of
attorneys who have expressed interest in providing pro bono representation for
Merit Systems Protection Board appellants before the court. The Merit Systems
Protection Board neither endorses the services provided by any attorney nor
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warrants that any attorney will accept representation in a given case.
FOR THE BOARD: ______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.