Desanto v. Office of Personnel Management

NOTE: This disposition is nonprecedential.

United States Court of Appeals for the Federal Circuit
2010-3049

REYNOLD RICHARD DESANTO,

Petitioner,

v.

OFFICE OF PERSONNEL MANAGEMENT,

Respondent.

Reynold R. DeSanto, of Locust Grove, Virginia, pro se.

Stacey K. Grigsby, Trial Attorney, Commercial Litigation Branch, Civil Division,
United States Department of Justice, of Washington, DC, for respondent. With her on
the brief were Tony West, Assistant Attorney General, Jeanne E. Davidson, Director,
and Donald E. Kinner, Assistant Director.

Appealed from: Merit Systems Protection Board
 NOTE: This disposition is nonprecedential.

United States Court of Appeals for the Federal Circuit
2010-3049

REYNOLD RICHARD DESANTO,

Petitioner,

v.

OFFICE OF PERSONNEL MANAGEMENT,

Respondent.

__________________________

DECIDED: March 5, 2010
__________________________

Before MICHEL, Chief Judge, RADER, Circuit Judge, and FOLSOM, District Judge. ∗

PER CURIAM.

Reynold Richard DeSanto (“Mr. DeSanto”) appeals a decision of the Merit

Systems Protection Board (“MSPB”) affirming OPM’s apportionment of his annuity to his

two children pursuant to a qualifying court order. For the reasons that follow, we affirm

the decision of the MSPB.

I. BACKGROUND

Mr. DeSanto married Louise DeSanto (“Ms. DeSanto”) on September 17, 1955.

Mr. DeSanto retired from Federal service on June 3, 1986 and subsequently divorced

Ms. DeSanto on November 16, 1987. The court decree of divorce awarded Ms.

∗
The Honorable David Folsom, Chief Judge, United States District Court for
the Eastern District of Texas, sitting by designation.
DeSanto 41 percent of Mr. DeSanto’s monthly annuity and further stated that if Ms.

DeSanto predeceased Mr. DeSanto, her portion of the annuity “shall be payable equally

to her children, if living . . . TERESA MARIE DESANTO and KATHERINE LOUISE

DESANTO [AMEN].”

OPM subsequently received the divorce decree and notified Mr. DeSanto that it

would honor the order. Mr. DeSanto requested reconsideration because the calculation

of Ms. DeSanto’s share of the royalty appeared to exceed the amount specified in the

court order. OPM then reduced the amount it would deduct from Mr. DeSanto’s annuity.

Mr. DeSanto did not otherwise challenge the validity of the divorce decree until after Ms.

DeSanto’s death.

After Ms. DeSanto died, Mr. DeSanto requested that OPM restore his annuity to

the full amount, but OPM denied this request on January 9, 2009 because the divorce

decree awarded Ms. DeSanto’s share of the annuity to the DeSantos’ two children

should she predecease Mr. DeSanto. Mr. DeSanto requested reconsideration, but

OPM affirmed its previous determination that the divorce decree required OPM to pay

Ms. DeSanto’s share of the annuity to their two living children.

Mr. DeSanto then appealed to the MSPB, which affirmed OPM’s denial of

reconsideration on July 24, 2009. Mr. DeSanto filed a petition for review with the full

board, which was denied. The initial decision became final on October 5, 2009 and Mr.

DeSanto timely appealed to this Court.

II. DISCUSSION

Our scope of review in an appeal from a MSPB decision is limited. We must

affirm a MSPB decision unless it is:

2010-3049 2
 (1) arbitrary, capricious, an abuse of discretion, or otherwise not
in accordance with law;
(2) obtained without procedures required by law, rule, or
regulation having been followed; or
(3) unsupported by substantial evidence.

5 U.S.C. § 7703(c). The burden of establishing deficiencies in an administrative

decision rests with the petitioner. Cheeseman v. Office of Personnel Mgmt., 791 F.2d

138, 140 (Fed. Cir. 1986). Mr. DeSanto has failed to meet this burden.

OPM must make annuity payments otherwise payable to a retired Federal

employee “to another person if and to the extent expressly provided for in the terms of .

. . any court decree of divorce . . . or the terms of any court order or court-approved

property settlement agreement incident to any court decree of divorce.” 5 U.S.C. §

8345(j)(1). Moreover, OPM regulations expressly provide that “OPM will honor a

qualifying court order . . . that directs OPM to pay, after the death of the former spouse,

the former spouse’s share of the employee annuity to . . . one or more of the retiree’s

children.” 5 C.F.R. § 838.1012(b)(4).

The MSPB examined all of the relevant facts. The divorce decree directed OPM

to pay 41 percent of Mr. DeSanto’s annuity to Ms. DeSanto. The divorce decree further

directed OPM to pay, after Ms. DeSanto’s death, her portion of the annuity to the

DeSantos’ two children. Thus, the MSPB properly concluded that the decree was a

“qualifying court order” that required OPM to pay 41 percent of Mr. DeSanto’s annuity to

the two children.

Mr. DeSanto argues that the MSPB erred by applying 5 C.F.R. § 838.1012

instead of an earlier version of the regulation, 5 C.F.R. § 831.1712, that was in effect at

the time of his divorce. We disagree. 5 C.F.R. § 831.1712 was redesignated 5 C.F.R.

2010-3049 3
§ 838.1012 in 1992. See 57 Fed. Reg. 120, at 149-50 (Jan. 2, 1992); 57 Fed. Reg.

33570 (July 29, 1992). Moreover, the 1992 amendments expressly state that court

orders affecting Civil Service retirement benefits, including 5 C.F.R. § 838.1012, apply

retroactively. 5 C.F.R. § 838.101(c)(2) (“Subpart J [§§ 838.1002-838.1018] applies only

to orders received by OPM before January 1, 1993.”); 5 C.F.R. § 838.102(a)(6)

(“Subpart J [§§ 838.1002-838.1018] . . . contains the rules applicable to court orders

filed under procedures in effect prior to the implementation of this part. These rules

continue to apply to court orders received by the OPM before January 1, 1993.”). Thus,

the Board properly applied 5 C.F.R. § 838.1012 to the DeSantos’ divorce decree even

though the regulation was promulgated after the decree was entered.

We also disagree with Mr. DeSanto’s argument that OPM regulations only

authorize payment to children under 18 years of age. 5 C.F.R. § 838.1012 expressly

states that benefits may be apportioned to “[o]ne or more of the retiree’s children as

defined in section 8342(c) or section 8424(d) of title 5, United States Code.” These

sections both define “child” to “include[] a natural child and an adopted child, but [not] a

stepchild.” 1 5 U.S.C. § 8342(c); 5 U.S.C. § 8424(d). Neither section limits “children” to

minors under the age of 18. Mr. DeSanto refers to a different and inapplicable

provision, 5 U.S.C. § 8345(j)(3)(c), which defines “child” as “an individual under 18

years of age” but expressly states that the definition applies only to that subsection.

The use of “child” in that subsection is in the distinguishable context of judgments

against individuals for “physically, sexually, or emotionally abusing a child.” See 5

U.S.C. § 8345(j)(3)(c).

1
Mr. DeSanto does not dispute that Teresa Marie DeSanto and Katherine
Louise DeSanto Amen are his and Ms. DeSanto’s natural children.

2010-3049 4
 We have considered Mr. DeSanto’s remaining arguments, but find them

unpersuasive. We therefore affirm the MSPB’s decision apportioning Mr. DeSanto’s

annuity to his two children pursuant to a qualifying court order.

COSTS

No costs.

2010-3049 5