Melanie L. Muwwakkil v. Office of Personnel Management

ARCHER, Circuit Judge,

dissenting.

I agree with the majority that OPM improperly failed to notify Ms. Muwwakkii of Mr. Lee’s (her former husband) proposed withdrawal of his retirement deductions. Where notice is not given to a former spouse, OPM may be required to pay benefits to a former spouse even though it has fully distributed an employee’s retirement deductions to the employee. That would be true in a case such as this if the divorce decree granted the former spouse an interest in the employee’s retirement benefits.

*927I do not agree, however, that this ease should be vacated and remanded. The Administrative Judge (AJ) has already fully considered the issue of whether Ms. Mu-wwakkil or the minor children of Ms. Mu-wwakkil and Mr. Lee were entitled to any interest in Mr. Lee’s retirement benefits and has correctly determined that she did not carry her burden of establishing entitlement.

For Ms. Muwwakkil to succeed in this action, she was required to prove by a preponderance of the evidence that she or the children were entitled to an interest in her former husband’s retirement benefits. 5 C.F.R. § 1201.56(a)(2) (“In appeals from reconsideration decisions of the [OPM] involving retirement benefits, if the appellant filed the application, the appellant has the burden of proving, by a preponderance of the evidence, entitlement to the benefits.”). After reviewing the record, including the divorce decree, the AJ found that Ms. Muwwakkil failed to show that either she or the children would have been entitled to an interest in the benefits, even if proper notification had been provided to her before OPM paid the benefits to her former husband. Thus, the AJ considered and decided all the issues for which the majority now remands this case.

As to Ms. Muwwakkil, the AJ found that in the divorce decree there was no provision granting her an interest in her former husband’s retirement benefits, either by way of a survivor annuity or a death benefit. Absent a provision of this type in the divorce decree and absent a showing of any other basis for claiming an interest in these benefits, the AJ correctly determined Ms. Muwwakkil was not prejudiced by OPM’s failure to notify her.

The AJ also determined that the minor children were not prejudiced as a result of OPM’s failure to notify Ms. Muwwakkil because she “has not shown that the notification provision would apply ... to her children.” Clearly, the notice provision is designed to protect former spouses, not the children, of an employee. Thus, the children cannot rely on Ms. Muwwakkü’s statutory right to be notified. Further, Ms. Muwwak-kil pointed to no statutory provision requiring OPM to notify an employee’s children when that employee elects to withdraw retirement deductions.

This court reviews the AJ’s decision, which became the final decision of the board, under a narrow standard of review. On this record, the AJ’s determination that Ms. Muwwakkil did not prove entitlement to any interest in her former husband’s retirement benefits was not arbitrary, capricious, an abuse of discretion, unsupported by substantial evidence or otherwise not in accordance with the law. 5 U.S.C. § 7703(c). OPM’s failure to give notice, although improper, has not been shown to be prejudicial to either Ms. Muwwakkil under the facts of this case nor to the children. Accordingly, the board’s decision should be affirmed.