Opinion

Rosemary Irving v. Office of Personnel Management

Court: Merit Systems Protection Board
Filed: Jul 13, 2022
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 22.6%

explaining that, when the plain meaning of the operative term grants an annuity, the annuity must be awarded, regardless of extrinsic evidence

How later courts described this case

explaining that, when the plain meaning of the operative term grants an annuity, the annuity must be awarded, regardless of extrinsic evidence

Written by the judges who cited it.

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

ROSEMARY R. IRVING, DOCKET NUMBER

Appellant, DE-0843-16-0327-I-1

OFFICE OF PERSONNEL DATE: July 13, 2022

MANAGEMENT,

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Rosemary R. Irving, Phoenix, Arizona, pro se.

Karla W. Yeakle, Washington, D.C., for the agency.

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, Member

Tristan L. Leavitt, Member

FINAL ORDER

¶1 The appellant has filed a petition for review of the initial decision, which

affirmed the decision of the Office of Personnel Management (OPM) denying her

survivor benefits as a former spouse. Generally, we grant petitions such as this

one only in the following circumstances: the initial decision contains erroneous

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

findings of material fact; the initial decision is based on an erroneous

interpretation of statute or regulation or the erroneous application of the law to

the facts of the case; the administrative judge’s rulings during either the course of

the appeal or the initial decision were not consistent with required procedures or

involved an abuse of discretion, and the resulting error affected the outcome of

the case; or new and material evidence or legal argument is available that, despite

the petitioner’s due diligence, was not available when the record closed. Title 5

of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115).

After fully considering the filings in this appeal, we conclude that the appellant

has failed to establish any basis under section 1201.115 for granting the petition

for review. Therefore, we DENY the petition for review . Except as expressly

MODIFIED by this Final Order to clarify the basis for finding that the appellant

is not entitled to survivor benefits, we AFFIRM the initial decision.

BACKGROUND

¶2 On October 11, 2012, the appellant and her husband , a Federal employee,

divorced after 26 years of marriage. Initial Appeal File (IAF), Tab 6 at 78-93.

He remained a Federal employee until he died on April 3, 2015, at age 57, with

28 years of service. Id. at 50-56. On May 20, 2015, the appellant filed an

application for death benefits under the Federal Employees’ Retirement System

(FERS) based on her former husband’s service, id. at 24-28, and their divorce

decree, id. at 19.

¶3 In an initial decision, OPM notified the appellant that, although she was not

eligible for a monthly apportionment of her former husband’s annuity, she was

approved for a survivor annuity in the amount of $1 per month. Id. at 21. She

requested reconsideration, arguing that she was under stress at the time of the

divorce and that the provision entitling her to $1 per month in survivor annuity

benefits was included in the decree and the court order incident to the decree so

that she would be able to maintain her health benefits. Id. at 9-10. She

contended that OPM should not have accepted the decree as an acceptable court

order because it is ambiguous and contains confusing language, id. at 10, and

leads to an unfair and inequitable result, id. at 14. In its reconsideration decision

affirming its initial decision, OPM found that the appellant was not entitled to an

apportionment of her former husband’s annuity because he died while in service

and had not yet applied for a retirement annuity, but that she was entitled to a

survivor annuity in the amount of $1 per month, as provided for in the “Court

Order Acceptable for Processing Retirement Benefits (Federal Employees

Retirement System….),” signed by the parties and submitted by the appellant to

OPM in 2012. Id. at 5-7.

¶4 On appeal, the appellant renewed her claim that the court order was not

acceptable for processing when it was submitted because of confusing and

ambiguous language between the divorce decree and the court order incident to

the decree, IAF, Tab 1 at 7-12, and she sought her former husband’s “full

survivor annuity” based on what she contended was his intention, id. at 12. She

subsequently requested a hearing, IAF, Tab 8, but later withdrew her request,

IAF, Tab 12. The administrative judge afforded the parties a final opportunity to

submit evidence and argument on the relevant issues, IAF, Tab 13, and the

appellant did so, IAF, Tab 14.

¶5 Thereafter, the administrative judge issued an initial decision affirming

OPM’s reconsideration decision. IAF, Tab 15, Initial Decision (ID) at 1, 4.

Citing 5 C.F.R. § 838.222, the administrative judge found that the appellant is not

entitled to any retirement benefit because her former husband was not receiving

an annuity at the time of his death. The administrative judge further found that

“the issue of [the appellant’s] divorce decree, and whether it should have been

rejected, is immaterial.” ID at 3-4.

¶6 The appellant has filed a petition for review, Petition for Review (PFR)

File, Tab 1, to which the agency has responded in opposition, PFR File, Tab 4.

ANALYSIS

¶7 To the extent the appellant challenges on review the administrative judge’s

finding that she is not entitled to an apportionment of her former husband’s

annuity, ID at 3, we discern no basis upon which to disturb that finding.

Regardless of the fact that the 2012 court order purported to assign the appellant

an interest in her former husband’s annuity, IAF, Tab 6 at 67, the annuity “was

not in pay status,” at the time of his death because he had not yet retired.

5 C.F.R. § 838.222(c); 2 ID at 3. Therefore, there was no annuity to be

apportioned.

¶8 The appellant’s main argument on review, however, is that the

administrative judge refused to consider her challenge to the court order that

OPM found acceptable for processing, particularly as it relates to her entitlement

to a survivor annuity. PFR File, Tab 1. We agree with the appellant that the

court order is not “immaterial.” ID at 4.

¶9 The appellant’s right to a survivor annuity as a former spouse is governed

by the portion of the FERS statute codified at 5 U.S.C. § 8445. That section of

the FERS statute provides that a former spouse of a deceased employee is entitled

to a survivor annuity “if and to the extent expressly provided for” in either :

(1) an election under § 8417(b) of the FERS statute; 3 or (2) the terms of any

decree of divorce or annulment or any court order or court -approved property

settlement agreement incident to such decree. See 5 U.S.C. § 8445(a). Although

the “expressly provided for” provision of § 8445(a) does not require the use of

“magic words,” the intent to provide a survivor annuity must be clear, definite,

explicit, plain, direct, and unmistakable, not dubious or ambiguous. See Holzman

Pursuant to 5 C.F.R. § 838.22, “[i]f OPM receives a court order acceptable for

processing that is directed at an employee annuity that is not in pay status, OPM will

inform . . . the former spouse . . . that benefits cannot begin to accrue until the

employee retires, or enters phased retirement status.”

The appellant’s former husband made no such election because he died prior to

retiring.

v. Office of Personnel Management, 62 M.S.P.R. 254, 257 (1994) (interpreting

identical language found in 5 U.S.C. § 8341(h)(1)), aff’d, 48 F.3d 1237 (Fed. Cir.

1995) (Table). Under 5 C.F.R. § 838.804(b), in order to expressly award a former

spouse survivor annuity or expressly direct an employee or annuitant to provide a

former spouse survivor annuity, the court order must expressly state that the

former spouse is entitled to a survivor annuity using terms similar to those

described by § 838.912. See 5 C.F.R. § 838.804(b)(2). For example, the court

order must contain language such as “survivor annuity,” “death benefits,” or

“former spouse survivor annuity.” 5 C.F.R. § 838.912(a).

¶10 Here, the parties, both represented by counsel, signed a “Court Order

Acceptable for Processing Retirement Benefits (Federal Employees’ Retirement

System; United States Office of Personnel Management)” that was filed in the

Superior Court for the State of Arizona in and for the County of Maricopa on

October 22, 2012, incident to the divorce decree filed the same date . IAF, Tab 6

at 65-70. The order provided in pertinent part that:

Husband will, by this Order, be deemed to have elected the survivor

annuity benefit, FERS will record Husband as having elected the

survivor annuity benefit, and Former Spouse shall be designated as

the survivor beneficiary in the amount of $1 per month (the cost of

which shall be charged to the Former Spouse’s share) until she is

eligible for coverage under Medicare, which for the purposes of this

Order shall be October 1, 2024.

Id. at 67-68. The appellant submitted the order to OPM seeking approval of the

benefits it provided. Id. at 63. Consistent with 5 C.F.R. § 838.222(c), OPM

notified the parties and the appellant’s attorney on August 8, 2013, that it had

approved the appellant’s application for benefits as set forth in the order, id.

at 60-62, that her former spousal retirement benefits would begin when her

former husband retired, and that it intended to honor her survivor annuity award

in the amount of $1 per month. It also enclosed references to applicable

regulations that must be followed in awarding court ordered benefits. Id.

¶11 On review, the appellant challenges on several grounds OPM’s decision to

accept the order for processing. She claims that the “Medicare language” in the

divorce decree is ambiguous because it does not specify a date on which she will

be eligible for Medicare and that therefore extrinsic evidence as to the parties’

intentions should be considered. PFR File, Tab 1 at 3-7. However, the decree

provides that the award of the appellant’s share of her former husband’s FERS

benefit (and his Thrift Savings Plan benefit) shall be accomplished by court

orders directed to the plan’s administrators. IAF, Tab 6 at 82. As noted, the

separate order concerning retirement benefits that was incident to the decree and

that the appellant submitted to OPM for enforcement, and that OPM found

acceptable for processing, specifically stated that the appellant would receive a

monthly survivor benefit of $1 per month until she would become eligible for

Medicare “which for the purposes of this Order shall be October 1, 2024.” Id.

at 68. Therefore, there is no ambiguity as to what the appellant’s survivor benefit

is or for how long she will receive it. 4 Fox v. Office of Personnel Management,

100 F.3d 141, 146 n.3 (1996) (explaining that, when the plain meaning of the

operative term grants an annuity, the annuity must be awarded, regardless of

extrinsic evidence). There is thus no basis for the appellant’s argument that OPM

should have returned the order to her former husband, “giving him the

opportunity to review the wording again.” PFR File, Tab 1 at 4.

¶12 The appellant further claims on review that she was not in her best mental

state when she signed the divorce papers. Id. She was, however, represented by

counsel during the divorce proceedings and when she signed the court order at

We have considered the cases the appellant has cited in support of her positon and

find them inapposite. For example, Newman v. Teigeler, 898 F.2d 1574 (Fed. Cir.

1990), concerned an issue of statutory construction involving a provision of the

amendments to the Civil Service Retirement Spouse Equity Act of 1984. In Davenport

v. Office of Personnel Management, 62 F.3d 1384, 1387 (Fed. Cir. 1995), the court

found that OPM could consult a divorce decree when it clarified the meaning of the

Qualified Domestic Relations Order at issue. Here, we have found that the order was

not ambiguous and therefore it needed no clarification.

issue here, including the provision she now challenges, which, she acknowledges,

assured that she would continue to have needed health benefits following the

divorce. To the extent the appellant now seeks to substitute terms in the order

that would be more favorable to her, any such modification is precluded because

of her former husband’s death. 5 C.F.R. § 838.806(b)(1). In any event, the

appellant is responsible for the errors of her chosen representative. Sofio v.

Internal Revenue Service, 7 M.S.P.R. 667, 670 (1981).

¶13 Finally, the appellant argues on review that the order, as enforced by OPM,

is patently unfair and inequitable. 5 PFR File, Tab 1 at 8. While we are

sympathetic, the U.S. Supreme Court has held that the Government cannot be

estopped from denying benefits not otherwise permitted by law . Office of

Personnel Management v. Richmond, 496 U.S. 414, 416, 434 (1990).

NOTICE OF APPEAL RIGHTS 6

The initial decision, as supplemented by this Final Order, constitutes the

Board’s final decision in this matter. 5 C.F.R. § 1201.113. 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 an d

On review, the appellant renews her claim that, even though her former husband had

28 years of Federal service, none of their children will r eceive benefits. PFR File,

Tab 1 at 8. That is not a matter that we can consider in this appeal in which the

appellant contests the denial of her own benefits. However, if she believes that any of

the minor children have not received benefits to which, based on their father’s Federal

service, they are entitled, she must file a claim on their behalf with OPM. If OPM

issues unfavorable decisions initially and on reconsideration, she then may pursue an

appeal with the Board on behalf of her minor children.

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.

the rights described below do not represent a statement of how courts will rule

regarding which cases fall within their jurisdiction. If yo u 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 you r case by your

chosen forum.

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 Appea ls 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. ____ , 137 S. Ct. 1975 (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. 7 The court of appeals must receive your petition for

The original statutory provision that provided for judicial review of certain

whistleblower claims by any court of appeals of competent juri sdiction 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.

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

§ 7703(b)(1)(B).

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