Alan W. Carter v. Office of Personnel Management

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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).

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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

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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.

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¶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).

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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.