concurring.
The majority recognizes but declines to resolve the inconsistency between our interpretation of 5 U.S.C. § 8341(h) in Vaccaro v. Office of Personnel Management, 262 F.3d 1280 (Fed.Cir.2001), and the Office of Personnel Management’s (“OPM’s”) regulations purporting to carry out the same statutory subsection, saying the question “remains for another day.” Ante, at 1324. Nevertheless, the majority applies Vaccaro’s interpretation of the statute and finds that Ms. Rafferty is not entitled to a survivor annuity. Ante, at 1323. I believe, however, that today is the day to resolve the inconsistency: OPM’s regulations contradict the plain meaning of 5 U.S.C. § 8341(h) to the extent they categorically disallow an express grant of a survivor annuity during divorce proceedings because the grant is not in the first order dividing marital property. When a first order dividing marital property expressly reserves jurisdiction to dispose of the issue of a survivor annuity in a subsequent order, the subsequent order does not modify the first order.
OPM’s regulations require that a grant of a survivor annuity be in a first order dividing marital property. 5 C.F.R. §§ 838.806; 838.1004(e)(l)(ii), (e)(4)® (2004). They also specifically exclude from the definition of a first order dividing marital property any court order “issued under reserved jurisdiction.” 5 C.F.R. § 838.1004(e)(4)(ii)(B) (2004). However, 5 U.S.C. § 8341(h)(1) allows a survivor annuity to be “expressly provided for in ... any court order ... incident to such decree [of divorce or annulment]”; it does *1325not. require a grant or denial to be in a first court order incident to a decree of divorce or in a first order dividing marital property. Accordingly, in Vaccaro, we interpreted the term “provided for” in 5 U.S.C. § 8341(h)(1) to encompass both express grants and denials of a survivor annuity as well as express reservations of jurisdiction to grant or deny such an annuity. Furthermore, while 5 U.S.C. § 8341(h)(4) restricts the breadth of the language in § 8341(h)(1), it only requires that an order granting or denying a surviv- or annuity not modify a previous order: “a modification in a[n] ... order ... shall not be effective ... to the extent that such modification involves an annuity under this subsection.” Insofar as OPM’s regulations do not take into account whether a first order expressly reserves jurisdiction to address disposition of a survivor annuity in a subsequent order, OPM’s regulations contradict the plain meaning of 5 U.S.C. § 8341(h) and therefore are invalid.
When a first order expressly reserves jurisdiction to dispose of the issue of a survivor annuity in a subsequent order, the subsequent order is not a modification because it cannot be inconsistent with the first order, regardless of whether the subsequent order grants or denies a survivor annuity. Additionally, if and when a first order expressly reserves jurisdiction to grant or deny a survivor annuity, the second order merges into the first order nunc pro tunc. The second order effectively becomes part of the first order and so cannot constitute a modification of the first order.
Consistent with 5 U.S.C. § 8341(h)(4), our case law requires OPM to consider whether an order is a prohibited modification. In Newman v. Love, we held that the plain meaning of 5 U.S.C. § 8341(h) does not prevent state courts from granting survivor annuities when the state courts utilize bifurcated divorce proceedings. 962 F.2d 1008, 1011-13 (Fed.Cir.1992). We explained that a bifurcated divorce proceeding occurs when a decree of divorce dissolves a marriage but does nothing with respect to property other than explicitly reserve division of property, followed by an order that divides property. Id. We held that “[t]he initial property order does not change, alter or limit anything” and therefore is not an improper modification. Id. at 1011.
Moreover, consistent with .both 5 U.S.C. § 8341(h)(1) and (h)(4), our case law also requires OPM to consider whether jurisdiction was reserved over a survivor annuity. In this regard, Love turned on whether jurisdiction was reserved to dispose of marital property. In addition, as the majority apparently concedes, ante, at 1323, the test set forth in Vaccaro requires inquiring into whether jurisdiction is reserved over a survivor annuity. 262 F.3d at 1287.
Accordingly, in my view, in order to resolve this case we must determine whether the February 15 Order expressly reserved jurisdiction over a survivor annuity. In this regard, I agree with the majority that the express reservation of jurisdiction to enter a Court Order Acceptable for Processing (“COAP”) in- the February 15 Order is insufficiently explicit with respect to a survivor annuity. While OPM’s definition of a COAP includes potential dispensation of a survivor annuity, see 5 C.F.R. § 838.103 (2004), the majority is right to require a more explicit reference to a survivor annuity in a first order.
Since the February 15 Order failed explicitly to reserve jurisdiction over a survivor annuity, the October 18 Order purporting to grant Ms. Rafferty a survivor annuity was an ineffective modification. *1326See 5 U.S.C. § 8341(h)(4) (2000). Thus, I respectfully concur.