Opinion

Michael J Phillips v. Office of Personnel Management

Court: Merit Systems Protection Board
Filed: Feb 24, 2025
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 34.1%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

MICHAEL JAMES PHILLIPS, DOCKET NUMBER

Appellant, NY-0843-23-0092-I-1

OFFICE OF PERSONNEL DATE: February 24, 2025

MANAGEMENT,

Agency,

and

MICHELLE PHILLIPS,

Intervenor.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Michael J. Phillips , Astoria, New York, pro se.

Kevin D. Alexander Sr. and Michael Shipley , Washington, D.C., for the

agency.

BEFORE

Cathy A. Harris, Chairman

Henry J. Kerner, Vice Chairman

Raymond A. Limon, Member

FINAL ORDER

The appellant has filed a petition for review and the agency has filed a

cross petition for review of the initial decision, which dismissed as moot the

A nonprecedential order is one that the Board has determined does not add

significantly 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 Parties may cite nonprecedential orders,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).

appellant’s appeal of the Office of Personnel Management (OPM)’s March 13,

2023 decision to include the appellant’s Federal Employees’ Retirement System

(FERS) annuity supplement in its computation of the court -ordered division of his

FERS annuity. For the reasons discussed below, we GRANT the petition for

review and the cross petition for review and REVERSE the initial decision.

BACKGROUND

The appellant and his former spouse (intervenor) were married on

September 29, 1992. Phillips v. Office of Personnel Management, MSPB Docket

No. NY-0843-23-0092-I-1, Appeal File (0092 AF), Tab 5 at 81. On or around

February 19, 2014, a New York state court entered a decree of dissolution of

marriage and a domestic relations court order awarding the appellant’s former

spouse a pro rata share of the appellant’s “gross monthly annuity” under FERS.

Id. at 81-89. On July 5, 2022, after his retirement, the appellant filed an

Amended Court Order Acceptable for Processing with OPM’s Court Ordered

Benefits Branch. Id. at 25-29. Pursuant to the Amended Court Order, the

appellant’s former spouse was entitled to 50% of the appellant’s gross monthly

annuity under FERS; however, she was not entitled to any portion of the FERS

annuity supplement. Id. at 28.

On November 2, 2022, OPM issued an initial decision stating that it could

not honor the Amended Court Order and the appellant’s FERS annuity

supplement was “to be treated the same way” as the FERS basic annuity for

purposes of calculating the benefit paid to his former spouse; thus, the amount he

received under the FERS annuity supplement provisions must be included in the

calculation of the benefit paid to his former spouse. 0092 AF, Tab 5 at 51-52.

The appellant requested reconsideration of the decision, which OPM affirmed in

its March 13, 2023 reconsideration decision. Id. at 10-13.

The appellant filed a Board appeal of OPM’s March 13, 2023

reconsideration decision. 0092 AF, Tab 1. After holding the requested hearing,

the administrative judge issued an initial decision dismissing the appeal as moot,

finding that because the appellant had already prevailed before the Board in

Phillips v. Office of Personnel Management, MSPB Docket No. MSPB Docket

No. NY-0841-23-0080-I-1, which involved a former spouse annuity issue, the

appellant had obtained all the relief he could receive before the Board. 0092 AF,

Tab 18, Initial Decision (0092 ID) at 2-3. The appellant has filed a petition for

review of the initial decision, arguing that he has not obtained all the relief he

should have received had he prevailed because his former spouse continues to

receive a portion of his FERS annuity supplement, although the Amended Court

Order specifically stated that his former spouse was not to receive any portion of

the FERS annuity supplement. 2 Petition for Review (PFR) File, Tab 1 at 5-6.

The agency has filed a cross petition for review, to which the appellant has

replied. PFR File, Tabs 4, 6. In its cross petition for review, the agency agrees

with the appellant that the administrative judge erred in dismissing the appeal as

moot rather than addressing the merits of the matter and requests that the appeal

be remanded to the field office for adjudication on the merits. PFR File, Tab 4

at 4.

ARGUMENTS ON REVIEW

The appeal was improperly dismissed as moot.

A case is moot when the issues presented are no longer “live,” or the

parties lack a legally cognizable interest in the outcome of the case. Hess v. U.S.

With his petition for review, the appellant provides a March 28, 2017 Management

Advisory from OPM’s Associate Director and Acting General Counsel regarding

“OPM’s Non-Public Decision to Prospectively and Retroactively Re-Apportion Annuity

Supplements Notwithstanding Silence of the State Court Orders” and a FEDweek issue

brief, dated June 28, 2023, addressing the apportionment of annuity supplements. PFR

File, Tab 1 at 9-15. These documents are not new because they are already part of the

record below. 0092 AF, Tab 17 at 7-13; see Meier v. Department of the Interior,

3 M.S.P.R. 247, 256 (1980) (determining that evidence that is already a part of the

record is not new); 5 C.F.R. § 1201.115(d) (providing that new evidence is evidence

that was unavailable despite due diligence when the record closed).

Postal Service, 124 M.S.P.R. 40, ¶ 8 (2016). For an appeal to be dismissed as

moot, an appellant must have received all of the relief that he could have received

if the matter had been adjudicated and he had prevailed. Alexis v. Office of

Personnel Management, 106 M.S.P.R. 315, ¶ 6 (2007). Here, the administrative

judge dismissed the appeal as moot upon determining that no relief would be

available to the appellant in the 0092 appeal that had not already been ordered in

connection with the 0080 appeal. 0092 ID at 2 n.1 & 3. However, the annuity

supplement at issue in this appeal, i.e., the 0092 appeal, is separate from the

survivor annuity issue present in the 0080 appeal. Furthermore, the appellant has

not received all the relief that he could have received if the matter had been

adjudicated and he had prevailed, as his former spouse continues to receive a

portion of his annuity supplement in contravention of the Amended Court Order.

Thus, we find that this appeal is not moot.

OPM improperly included the appellant’s FERS annuity supplement in its

computation of the court-ordered division of his FERS annuity.

In its March 13, 2023 reconsideration decision, OPM affirmed its decision

to include the appellant’s FERS annuity supplement in the computation of his

court-ordered apportionment. 0092 AF, Tab 5 at 10. Specifically, OPM

explained that, because the April 1, 2014 Domestic Relations Order awarded the

appellant’s former spouse a “prorata share” of the appellant’s FERS annuity,

OPM was required by 5 U.S.C. § 8421(c) to include his FERS annuity supplement

in the computation of the court-ordered division, regardless of the July 5, 2022

Amended Order expressly excluding the appellant’s FERS annuity supplement

from such computation. 3 Id. at 10-11, 26-27.

OPM made a similar argument in Moulton v. Office of Personnel Management,

2023 MSPB 26, ¶¶ 10-22, in which the Board held that the plain language of 5 U.S.C.

8421(c) requires OPM to apportion the appellant’s annuity supplement under 5 U.S.C.

§ 8467 only when the court order expressly provides for such apportionment. Id.,

¶¶ 10-22. OPM has sought review of the Board’s decision in Moulton, and its petition

for review is currently pending before the U.S. Court of Appeals for the Federal Circuit.

See Office of Personnel Management v. Moulton, Fed. Cir. Docket No. 2024-1774. The

OPM’s decision is contrary to the plain reading of the statutory text. Under

5 U.S.C. § 8415(a), entitled “Computation of basic annuity,” “the annuity” of an

employee retiring under subchapter II of chapter 84, Title V, United States Code,

is 1% of that individual’s average pay, multiplied by such individual’s total

service. In general, an individual shall, if and while entitled to “an annuity”

under 5 U.S.C. § 8412(e), “also be entitled to an annuity supplement under this

section.” 5 U.S.C. § 8421(a)(1). The annuity supplement is designed to replicate

the Social Security benefit (based on Federal civilian service) available at age 62

for those employees retiring earlier and is subject to the same conditions as

payment of the Social Security benefit. Henke v. Office of Personnel

Management, 48 M.S.P.R. 222, 227 (1991).

When a Federal employee and the employee’s spouse divorce, additional

statutes come into play. Per 5 U.S.C. § 8467(a)(1), an appellant’s annuity shall

be paid, in whole or in part, to another person only “if and to the extent expressly

provided for” in the terms of, among other things, any court decree, court order,

or court-approved property settlement agreement. An amount under 5 U.S.C.

§ 8421, i.e., an annuity supplement, “shall for the purposes of section 8467, be

treated in the same way as an amount computed under section 8415.” 5 U.S.C.

§ 8421(c). That is, an annuity supplement is a payment under chapter 84 that

would otherwise be made to an employee pursuant to 5 U.S.C. § 8421(a).

Therefore, to be treated the same way when applying section 8467, that payment

shall be paid to another person “if and to the extent expressly provided for” in the

terms of, among other things, any court decree, court order, or court -approved

property settlement agreement. 5 U.S.C. § 8467(a)(1).

proper interpretation of 5 U.S.C. 8421(c) is salient in cases such as Moulton where the

apportionment of the annuity supplement is not “expressly provided for” in the court

order. Here, the Amended Order expressly excludes the appellant’s annuity supplement

from the apportionment, and thus, the outcome of Moulton does not impact our analysis

of this case. We do not reach the issue of whether OPM is authorized to apportion the

annuity supplement in other instances.

Here, the July 5, 2022 Amended Order expressly states that the appellant’s

former spouse “is not entitled to any portion” of the annuity supplement. AF

0092, Tab 5 at 28. Accordingly, we find that sections 8421(c) and 8467 clearly

prohibit OPM from apportioning the appellant’s annuity supplement, because

such apportionment is expressly excluded in the court order. We therefore find

that OPM improperly included the appellant’s FERS annuity supplement in its

computation of the court-ordered division of his FERS annuity. OPM’s

reconsideration decision is reversed.

ORDER

We ORDER OPM to rescind its March 13, 2023 reconsideration decision,

stop apportioning the annuity supplement, and refund all previously apportioned

annuity supplement amounts to the appellant. OPM must complete this action no

later than 20 days after the date of this decision.

We also ORDER OPM to tell the appellant promptly in writing when it

believes it has fully carried out the Board's Order and to describe the actions it

took to carry out the Board’s Order. We ORDER the appellant to provide all

necessary information OPM requests to help it carry out the Board’s Order. The

appellant, if not notified, should ask OPM about its progress. See 5 C.F.R.

§ 1201.181(b).

No later than 30 days after OPM tells the appellant it has fully carried out

the Board’s Order, the appellant may file a petition for enforcement with the

office that issued the initial decision on this appeal if the appellant believes that

OPM did not fully carry out the Board’s Order. The petition should contain

specific reasons why the appellant believes OPM has not fully carried out the

Board’s Order and should include the dates and results of any communications

with OPM. See 5 C.F.R. § 1201.182(a).

This is the final decision of the Merit Systems Protection Board in this

appeal. Title 5 of the Code of Federal Regulations, section 1201.113 (5 C.F.R.

§ 1201.113).

NOTICE TO THE APPELLANT REGARDING

YOUR RIGHT TO REQUEST

ATTORNEY FEES AND COSTS

You may be entitled to be paid by the agency for your reasonable attorney

fees and costs. To be paid, you must meet the requirements set forth at title 5 of

the United States Code (5 U.S.C.), sections 7701(g), 1221(g), or 1214(g). The

regulations may be found at 5 C.F.R. §§ 1201.201, 1201.202, and 1201.203. If

you believe you meet these requirements, you must file a motion for attorney fees

and costs WITHIN 60 CALENDAR DAYS OF THE DATE OF THIS DECISION.

You must file your motion for attorney fees and costs with the office that issued

the initial decision on your appeal.

NOTICE OF APPEAL RIGHTS 4

You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By

statute, the nature of your claims determines the time limit for seeking such

review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).

Although we offer the following summary of available appeal rights, the Merit

Systems Protection Board does not provide legal advice on which option is most

appropriate for your situation and the rights described below do not represent a

statement of how courts will rule regarding which cases fall within their

jurisdiction. If you wish to seek review of this final decision, you should

immediately review the law applicable to your claims and carefully follow all

filing time limits and requirements. Failure to file within the applicable time

limit may result in the dismissal of your case by your chosen forum.

Since the issuance of the initial decision in this matter, the Board may have updated

the notice of review rights included in final decisions. As indicated in the notice, the

Board cannot advise which option is most appropriate in any matter.

Please read carefully each of the three main possible choices of review

below to decide which one applies to your particular case. If you have questions

about whether a particular forum is the appropriate one to review your case, you

should contact that forum for more information.

(1) Judicial review in general . As a general rule, an appellant seeking

judicial review of a final Board order must file a petition for review with the U.S.

Court of Appeals for the Federal Circuit, which must be received by the court

within 60 calendar days of the date of issuance of this decision. 5 U.S.C.

§ 7703(b)(1)(A).

If you submit a petition for review to the U.S. Court of Appeals for the

Federal Circuit, you must submit your petition to the court at the following

address:

U.S. Court of Appeals

for the Federal Circuit

717 Madison Place, N.W.

Washington, D.C. 20439

Additional information about the U.S. Court of Appeals for the Federal

Circuit 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, 10, and 11.

If you are interested in securing pro bono representation for an appeal to

the U.S. Court of Appeals for the Federal Circuit, you may visit our website at

http://www.mspb.gov/probono for information regarding pro bono representation

for Merit Systems Protection Board appellants before the Federal Circuit. The

Board neither endorses the services provided by any attorney nor warrants that

any attorney will accept representation in a given case.

(2) Judicial or EEOC review of cases involving a claim of

discrimination . This option applies to you only if you have claimed that you

were affected by an action that is appealable to the Board and that such action

was based, in whole or in part, on unlawful discrimination. If so, you may obtain

judicial review of this decision—including a disposition of your discrimination

claims —by filing a civil action with an appropriate U.S. district court ( not the

U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you

receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems

Protection Board, 582 U.S. 420 (2017). If you have a representative in this case,

and your representative receives this decision before you do, then you must file

with the district court no later than 30 calendar days after your representative

receives this decision. If the action involves a claim of discrimination based on

race, color, religion, sex, national origin, or a disabling condition, you may be

entitled to representation by a court-appointed lawyer and to waiver of any

requirement of prepayment of fees, costs, or other security. See 42 U.S.C.

§ 2000e-5(f) and 29 U.S.C. § 794a.

Contact information for U.S. district courts can be found at their respective

websites, which can be accessed through the link below:

http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .

Alternatively, you may request review by the Equal Employment

Opportunity Commission (EEOC) of your discrimination claims only, excluding

all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the

EEOC’s Office of Federal Operations within 30 calendar days after you receive

this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,

and your representative receives this decision before you do, then you must file

with the EEOC no later than 30 calendar days after your representative receives

this decision.

If you submit a request for review to the EEOC by regular U.S. mail, the

address of the EEOC is:

Office of Federal Operations

Equal Employment Opportunity Commission

P.O. Box 77960

Washington, D.C. 20013

If you submit a request for review to the EEOC via commercial delivery or

by a method requiring a signature, it must be addressed to:

Office of Federal Operations

Equal Employment Opportunity Commission

131 M Street, N.E.

Suite 5SW12G

Washington, D.C. 20507

(3) Judicial review pursuant to the Whistleblower Protection

Enhancement Act of 2012 . This option applies to you only if you have raised

claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or

other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).

If so, and your judicial petition for review “raises no challenge to the Board’s

disposition of allegations of a prohibited personnel practice described in section

2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),

(B), (C), or (D),” then you may file a petition for judicial review either with the

U.S. Court of Appeals for the Federal Circuit or any court of appeals of

competent jurisdiction. 5 The court of appeals must receive your petition for

review within 60 days of the date of issuance of this decision. 5 U.S.C.

§ 7703(b)(1)(B).

The original statutory provision that provided for judicial review of certain

whistleblower claims by any court of appeals of competent jurisdiction expired on

December 27, 2017. The All Circuit Review Act, signed into law by the President on

July 7, 2018, permanently allows appellants to file petitions for judicial review of

MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals

for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.

The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,

132 Stat. 1510.

If you submit a petition for judicial review to the U.S. Court of Appeals for

the Federal Circuit, you must submit your petition to the court at the following