Opinion

Ronald Moulton v. Office of Personnel Management

2023 MSPB 26

Court: Merit Systems Protection Board
Filed: Nov 28, 2023
Status: Published
Cited by: 6 cases
Authority: More cited than 74.1%

explaining that the provisions of a statute should be read in harmony, leaving no provision inoperative, superfluous, redundant, or contradictory

How later courts described this case

explaining that the provisions of a statute should be read in harmony, leaving no provision inoperative, superfluous, redundant, or contradictory

Written by the judges who cited it.

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

2023 MSPB 26

Docket No. DE-0841-18-0053-I-1

Ronald L. Moulton,

Appellant,

Office of Personnel Management,

Agency ,

and

Director of the Office of Personnel

Management, 1

Intervenor,

and

Jill Moulton, 2

Intervenor.

November 28, 2023

Ronald L. Moulton , Longmont, Colorado, pro se.

Jessica Johnson , Nicole M. Lohr , and Tynika Faison Johnson , Washington,

D.C., for the agency and for the intervenor, the Director of the Office of

Personnel Management. 3

Jill Moulton , Oro Valley, Arizona, pro se.

The now-former Director of the Office of Personnel Management (OPM) intervened

below.

Although the Board originally identified Jill Kuryvial as a potential intervenor, that

individual has referred to herself as Jill Moulton, and thus we have done so here.

It appears that the agency’s representatives in this matter are also appearing as

representatives for the Director of the OPM as intervenor. Petition for Review (PFR)

File, Tab 20 at 15.

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, Member

OPINION AND ORDER

¶1 The Office of Personnel Management (OPM) petitions for review of the

initial decision reversing its final decision recalculating the apportionment of the

appellant’s Federal Employees’ Retirement System (FERS) benefit payable to his

former spouse. For the following reasons, we DENY OPM’s petition and

AFFIRM the initial decision as MODIFIED by this Opinion and Order, which

supplements the initial decision and still reverses OPM’s final decision.

BACKGROUND

¶2 The appellant and his former spouse (hereinafter “intervenor”) were married

on November 11, 1988. Initial Appeal File (IAF), Tab 13 at 54. On July 12,

2004, a Colorado state court entered a decree of dissolution of marriage and a

domestic relations court order awarding the intervenor a pro rata share of the

appellant’s “gross monthly annuity” under FERS, including “any benefit the

Employee earns based on special ATC [Air Traffic Controller] service.” Id.

at 53-57. Effective May 31, 2010, the appellant retired with over 25 years of

creditable service as an ATC with the Federal Aviation Administration. Id. at 9,

43, 45, 101-03. OPM thereafter granted the appellant’s application for immediate

retirement under FERS and determined that he was entitled to a basic annuity

under the statutory provision for ATCs and an annuity supplement under 5 U.S.C.

§ 8421. Id. at 9, 14, 43, 101. In December 2010, OPM notified the appellant and

the intervenor that it would pay the intervenor a pro rata share of the appellant’s

basic annuity as provided for in the court order. Id. at 5, 28-29. At that time,

OPM did not include the appellant’s FERS annuity supplement in its computation

of the intervenor’s court-ordered apportionment. Id. at 5.

¶3 Nearly 6 years later, OPM issued August 25, 2016 letters to the appellant

and the intervenor informing them that it had incorrectly calculated the benefit

the intervenor was receiving under the court order. IAF, Tab 13 at 24-27. OPM

indicated that the appellant’s FERS annuity supplement “is to be treated the same

way” as the FERS basic annuity for purposes of calculating the benefit paid to the

intervenor, and that the amount he receives under the FERS annuity supplement

provisions must be included in the calculation of the benefit paid to the

intervenor. Id. at 24. Thus, OPM notified the appellant and the intervenor that

the appellant’s annuity payment would be prospectively reduced, and the

intervenor’s benefit prospectively increased, due to the change in calculation, and

that OPM would also retroactively collect the additional benefits due the

intervenor back to June 1, 2010, which was the date the appellant’s FERS annuity

supplement payments began. Id. at 24-29. This retroactive treatment resulted in

an underpayment the appellant owed to the intervenor in the amount of

$24,535.30, to be deducted by OPM in installments from the appellant’s annuity.

Id. After the appellant requested reconsideration of the decision, id. at 9, 25,

OPM issued a December 12, 2017 final decision affirming its initial decision.

OPM concluded that it is required under 5 U.S.C. § 8421(c) and the terms of the

domestic relations court order to include the appellant’s FERS annuity

supplement in the computation of the court-ordered division of his FERS annuity,

and that this determination did not involve a “policy change” by OPM. 4 Id.

at 8-12. OPM noted that it would take no action to collect the $24,535.30

overpayment until after the appellant exhausted his administrative and appeal

rights, and OPM notified him of his right to appeal to the Board. Id. at 12.

OPM issued reconsideration decisions on February 23, 2017, and October 16, 2017,

reaching the same conclusion, but notifying the appellant of its intent to temporarily

suspend its collection efforts. IAF, Tab 13 at 15-23, Tab 30, Initial Decision (ID)

at 2-3, 5-6. OPM rescinded those decisions, and the December 12, 2017 reconsideration

decision is the subject of this appeal. IAF, Tab 13 at 9, 15-23; ID at 2-3.

¶4 On appeal, the appellant asserted that OPM erred in providing his former

spouse a pro rata share of his annuity supplement because the domestic relations

court order did not expressly provide for a division of his annuity supplement, as

required by 5 U.S.C. § 8467, and OPM’s decision to apportion such payments

constituted a new “legislative rule” that required notice and comment rulemaking

before implementation. IAF, Tab 17 at 17-18, Tab 29 at 4.

¶5 The appellant submitted with his appeal a February 5, 2018 Management

Advisory issued by OPM’s Office of the Inspector General (OIG), Office of Legal

& Legislative Affairs, addressing its review of OPM’s “Non-Public Decision to

Prospectively and Retroactively Re-Apportion Annuity Supplements.” IAF,

Tab 17. The Management Advisory, which resulted from a complaint OIG

received from the Federal Law Enforcement Officers Association (FLEOA), noted

that, for almost 30 years until July 2016, OPM applied the state court -ordered

marital share to the basic annuity only and not to the annuity supplement except

when the state court order expressly addressed the annuity supplement. Id. at 5,

15. OIG disagreed with OPM’s assertion—that it was required by law to effect

the above change—because the “language of the statute simply does not mandate

the conclusion that the Basic Annuity and the Annuity Supplement should be

deemed to be one and the same.” Id. at 15-16. OIG indicated that, while OPM’s

approach is one possible interpretation of the statute, section 8421(c) could also

be reasonably construed to mean that the annuity supplement is subject to division

by a state court order in divorce proceedings “in the same way” that the basic

annuity may be subject to division in those proceedings. Id. at 16. OIG noted

that OPM’s regulations, as well as court decisions, require it to perform purely

ministerial actions in carrying out a court’s instructions, and that “it is not a

‘ministerial’ function to create a division of payment that the court order does not

expressly contain.” Id. at 16-17. Rather, OIG opined that OPM created a new

rule regarding allocation of the annuity supplement that is subject to notice and

comment rulemaking and that may not be given retroactive effect. Id. at 17-20.

OIG recommended that OPM, among other things, cease applying the state court-

ordered marital share to annuity supplements unless the court order expressly so

provides, and make whole all annuitants affected by OPM’s re-interpretation of

the statute. Id. at 21-23.

¶6 OPM responded to the Board appeal by asserting that the unambiguous

language of 5 U.S.C. § 8421(c) required it to apportion the annuity supplement

“in the same way” as the basic annuity for purposes of computing a court-ordered

division of a FERS retirement benefit. IAF, Tab 13 at 10, Tab 27 at 13-17.

Alternatively, OPM asserted that if the statute were ambiguous, its interpretation

was entitled to deference under Chevron, U.S.A., Inc. v. Natural Resources

Defense Council, Inc., 467 U.S. 837 (1984). IAF, Tab 13 at 10, Tab 27 at 13-17.

The appellant withdrew his request for a hearing. IAF, Tab 11 at 1.

¶7 After the close of the record, the administrative judge reversed OPM’s final

decision. 5 IAF, Tab 30, Initial Decision (ID) at 3. He found that 5 U.S.C.

§ 8421(c) was not unambiguous, as OPM alleged, but instead was subject to

multiple interpretations. ID at 10-11. He further found that OPM’s regulations,

purportedly requiring it to apportion the appellant’s annuity supplement, were not

entitled to deference under Chevron because they did not directly address the

purpose of section 8421(c) or otherwise interpret that section. ID at 11-13. The

fact that OPM’s regulations do not differentiate between a basic annuity and an

annuity supplement “could just as easily reflect the agency’s conclusion that the

annuity supplement was” a Social Security benefit and thus presumptively not

allocable between an employee and a former spouse. ID at 13. The

administrative judge therefore read section 8421(c) to require OPM to divide an

annuity supplement between a FERS employee and his or her former spouse only

if the court order expressly provided for such division, as required by 5 U.S.C.

§ 8467. ID at 16. After reviewing the terms of the court order, the administrative

The administrative judge granted the Director of OPM’s request to intervene as a

matter of right under 5 U.S.C. § 7701(d) and permitted the appellant’s former spouse to

intervene in this matter. IAF, Tabs 26, 28.

judge determined that it did not expressly provide for the division of the

appellant’s annuity supplement. ID at 16-21. He therefore found that the

appellant proved by preponderant evidence that OPM erred in recalculating the

intervenor’s share of the appellant’s FERS annuity. ID at 21. The administrative

judge ordered OPM to rescind its final decision and refund all previously

apportioned annuity supplement amounts to the appellant. ID at 22. The

administrative judge declined to consider the appellant’s claims of harmful error,

age discrimination, and reprisal for protected disclosures and activity, as well as

the appellant’s request for interim relief. ID at 21-22.

¶8 OPM has filed a timely petition for review arguing that the administrative

judge erred in reversing its reconsideration decision. Petition for Review (PFR)

File, Tab 8. OPM reasserts that section 8421(c) unambiguously requires it to

apportion the annuity supplement in the same way it apportions the appellant’s

basic annuity and, alternatively, that its interpretation of the statute as

establishing that requirement is entitled to deference. Id. at 8-19. The appellant

has filed a response to OPM’s petition for review. PFR File, Tab 9.

¶9 After the parties submitted their pleadings, the Acting Clerk of the Board

issued an Order directing OPM to clarify its position regarding how it categorizes

a supplemental annuity and to submit relevant documents, including specifically

identified policy statements addressing its approach to apportioning supplemental

annuities. PFR File, Tab 13. OPM and the Director of OPM submitted a pleading

that contends, among other things, that its regulations support what it claims are

the “clear, unambiguous provisions of 5 U.S.C. § 8421(c).” PFR File, Tab 20

at 6-11. In a separate submission, the Director of OPM asserts that the portion of

the Acting Clerk’s Order seeking documents was improper and not in accordance

with the Board’s regulations, and moves for the Board to vacate that portion of

the Order. 6 PFR File, Tab 21 at 5-7. The appellant has filed a response in which

he also reasserts his age discrimination claim. 7 PFR File, Tab 23.

ANALYSIS

¶10 OPM asserts on review that 5 U.S.C. § 8421(c) is clear and the

administrative judge improperly read ambiguity into the statute by looking

beyond its text. PFR File, Tab 8 at 8-13. OPM further asserts that, if the Board

must look beyond the plain language of the statute, the placement of

section 8421(c) within the FERS “Basic Annuity” subchapter shows that Congress

intended for the basic annuity and the annuity supplement to be treated as

indivisible components of the entire annuity. Id. at 9. OPM also claims that, for

FERS benefits to replicate Civil Service Retirement System (CSRS) benefits as

Congress intended, OPM must treat the basic annuity and the annuity supplement

as a unitary entitlement. Id. at 15-16.

¶11 An employee who is separated from the service, except by removal for

cause on charges of misconduct or delinquency, after completing 25 years of

service as an ATC or after becoming 50 years of age and completing 20 years of

service as an ATC, “is entitled to an annuity.” 5 U.S.C. § 8412(e). Under

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

The Board may order “any Federal agency” to comply with “any order” issued by the

Board under its authority. 5 U.S.C. § 1204(a)(1)-(2). In any case that is reviewed, the

Board may require that briefs be filed and take any other action necessary for final

disposition of the case. 5 C.F.R. § 1201.117(a). OPM was afforded an opportunity to

provide evidence to support its final decision in this case but chose not to do so. Given

our resolution of this appeal on the existing record, the motion of the Director of OPM

to vacate a portion of the Acting Clerk’s Order is now moot.

The appellant asserts that, “I believe that the OPM has discriminated against me and

other retired annuitants based on our age . . . .” PFR File, Tab 23 at 5. An appellant

may prove a claim of age discrimination by showing that such discrimination was a

motivating factor in the contested action. Pridgen v. Office of Management and Budget,

2022 MSPB 31, ¶ 21. There are various methods of proving such a claim. Id.,

¶¶ 23-24. Having reviewed the appellant’s arguments on this issue, e.g., IAF, Tab 1

at 5, Tab 29 at 5, we find that he has not met his burden of proving by preponderant

evidence that age was a motivating factor in OPM’s final decision in this case.

employee retiring under subchapter II of chapter 84, Title 5, United States Code,

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

service. For individuals with ATC service like the appellant, the computation

involves a higher percentage multiplied by total service. 5 U.S.C. § 8415(f). 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). The annuity supplement, therefore, ceases no later than the last

day of the month in which such individual attains age 62. 5 U.S.C. § 8421(a)(3)

(B). Thus, the formula for calculating the annuity supplement incorporates the

amount of old-age insurance benefit that would be payable under the Social

Security Act upon attaining age 62. 5 U.S.C. § 8421(b).

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

statutes come into play. Section 8467 of Title 5, United States Code, addresses

“Court orders.” Under 5 U.S.C. § 8467(a)(1), payments under 5 U.S.C.

chapter 84 that would otherwise be made to an annuitant based on the service of

that individual shall be paid to another person “if and to the extent expressly

provided for in the terms of . . . any court decree of divorce, annulment, or legal

separation, or the terms of any court order or court-approved property settlement

agreement incident to any court decree of divorce, annulment, or legal

separation.” Section 8421 is entitled “Annuity supplement.” Under 5 U.S.C.

§ 8421(c), “[a]n amount under this section shall, for purposes of section 8467, be

treated in the same way as an amount computed under section 8415.” These two

statutes are at issue in this case.

¶13 The interpretation of a statute begins with the language of the statute itself.

Semenov v. Department of Veterans Affairs, 2023 MSPB 16, ¶ 16. If the language

provides a clear answer, the inquiry ends and the plain meaning of the statute is

regarded as conclusive absent a clearly expressed legislative intent to the

contrary. Id. Further, the whole of the statute should be considered in

determining its meaning. Johnson v. Department of Veterans Affairs, 91 M.S.P.R.

405, 408 (2002). The provisions of a statute should be read in harmony, leaving

no provision inoperative or superfluous or redundant or contradictory. Id. A

section of a statute should not be read in isolation from the context of the whole

Act, and the Board, in interpreting legislation, must not be guided by a single

sentence or part of a sentence, but should look to the provisions of the whole law

and to its object and policy. Joyce v. Department of the Air Force, 83 M.S.P.R.

666, ¶ 14 (1999), overruled on other grounds by Sacco v. Department of Justice ,

90 M.S.P.R. 37 (2001). Reading the relevant provisions as a whole, we find that

the plain language of the applicable statutes provides a clear answer and there is

no clearly expressed legislative intent to the contrary.

¶14 We begin by considering how an amount “computed under section 8415” is

“treated,” so as to then determine how an annuity supplement must also be

treated, “in the same way,” for purposes of section 8467. 8 See 5 U.S.C.

§ 8421(c). As set forth above, 5 U.S.C. § 8415 addresses the manner in which a

basic annuity is computed, and thereby becomes a “[p]ayment under this chapter

which would otherwise be made to an employee . . . .” 5 U.S.C. § 8467(a). As a

“[p]ayment under this chapter,” the basic annuity shall be paid (in whole or in

part) 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). An amount under section 8421,

i.e., an annuity supplement, shall be treated in the same way. That is, an amount

We interpret the “for purposes of section 8467” language of section 8421(c) as simply

meaning “when applying section 8467.” See In re Hill, No. 06-50972, 2007 WL

2021897 at *12 (Bankr. E.D. Tenn. July 6, 2007) (holding, under a straightforward

reading of a statute, that the phrase “for purposes of paragraph (5)” simply means

“when applying paragraph (5)”). Thus, an annuity supplement amount shall, when

applying section 8467, be treated in the same way as a basic annuity amount.

computed under 5 U.S.C. § 8421(b) is a payment under chapter 84 that would

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

§ 8467(a). To be treated in 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. A basic annuity amount computed

under section 8415 shall be paid to another person only when the “expressly

provided for” requirement in section 8467(a) is met. Similarly, an annuity

supplement amount under section 8421 shall be paid to another person only when

it, too, meets the “expressly provided for” requirement of section 8467(a).

¶15 OPM’s interpretation to the contrary would improperly read section 8421(c)

in isolation from section 8467(a), see Joyce, 83 M.S.P.R. 666, ¶ 14, render the

“expressly provided for” language of section 8467(a) inoperative or superfluous,

and not read the statutory provisions as a whole and in harmony. In this regard,

we note that Congress could have used different language to reach the result OPM

proposes in this case. For example, Congress could have specified in

section 8467(a) that, “except as provided for in 5 U.S.C. § 8421(c),” payments

under this chapter which would otherwise be made to an employee shall be paid

to another person if and to the extent expressly provided for in the terms of a

court decree, court order, or court-approved property settlement agreement.

There is, however, no such proviso language in section 8467(a), and the Board

will not supply such language in interpreting the statute. See, e.g., Crockett v.

Office of Personnel Management, 783 F.2d 193, 195 (Fed. Cir. 1986) (rejecting a

statutory interpretation that would add to statutory language requirements that are

not specified or reasonably implied in the statute); Acting Special Counsel v. U.S.

Customs Service, 31 M.S.P.R. 342, 347 (1986) (declining to read an exclusion

into a statute). In fact, section 8467(a) applies to “[p]ayments under this

chapter . . . based on service of that individual,” and an annuity supplement

qualifies under that broad language. See 5 U.S.C. § 8421(b)(3)(A) (basing the

amount of an annuity supplement in part on a fraction that includes “the

annuitant’s total years of service”). Alternatively, Congress could have provided

in section 8421(c) or elsewhere that an amount under section 8421 shall, for

purposes of section 8467, be “considered a part” of the payment made to another

person under section 8467(a), shall be “included” in the amount of the payment

made to another person under that section, or shall “extend to” such an amount.

However, the statute does not so provide. Instead, it provides that such an

amount shall be “treated in the same way” as an amount computed under 5 U.S.C.

§ 8415. As set forth above, that means that it shall be paid to another person

when the “expressly provided for” requirement is met.

¶16 Congress knew how to speak more directly to this issue in a separate section

of the same public law that enacted sections 8421 and 8467. When it enacted the

FERS provisions at issue in this appeal, Congress also addressed how to treat the

annuity supplement for former spouses of employees of the Central Intelligence

Agency (CIA). Section 506 of the Federal Employees’ Retirement System

(FERS) Act of 1986, Pub. L. No. 99-335, 1986 U.S.C.C.A.N. (100 Stat.) 514,

624, amended the Central Intelligence Agency Retirement Act of 1964 by

providing for the participation of certain CIA employees in the FERS. In

section 304(g) of the amendment, covering “Special Rules for Former Spouses,”

Congress provided that “[t]he entitlement of a former spouse to a portion of an

annuity of a retired officer or employee of the Agency under this section shall

extend to any supplementary annuity payment that such officer or employee is

entitled to receive under section 8421 of title 5, United States Code.” 9 Id.

at 626-27. The legislative history confirms that section 304(g) “provides that the

entitlement of a retired CIA FERS employee’s former spouse to a portion of the

employee’s annuity extends to any annuity supplement the employee receives

The current version of the applicable statutes similarly indicates that an annuity

supplement is to be included in the “benefits payable” to an employee for purposes of

determining a former spouse’s share of those benefits. See 50 U.S.C. § 2154(c)(1)-(2).

under section 8421 of title 5, United States Code (as added by section 101 of the

conference agreement).” H.R. Rep. No. 99-606, at 157-58 (1986) (Conf. Rep.).

¶17 When Congress includes particular language in one section of a statute but

omits it in another section of the same Act, it is generally presumed that Congress

acts intentionally and purposely in the disparate inclusion or exclusion. Russello

v. United States, 464 U.S. 16, 23 (1983); see Hyundai Steel Co. v. United States,

19 F.4th 1346, 1353 (Fed. Cir. 2021). Here, the fact that Congress specifically

provided that annuity supplements shall be included in the benefits payable to a

former spouse of a CIA employee shows that it decided to do so for those

individuals but chose not to do so for others, see, e.g., Weed v. Social Security

Administration, 112 M.S.P.R. 323, ¶18 (2009); Ellefson v. Department of the

Army, 98 M.S.P.R. 191, ¶ 10 (2005), instead allowing for court decrees, court

orders, or court-approved property settlement agreements to resolve that question

under 5 U.S.C. § 8467(a) and 5 U.S.C. § 8421(c).

¶18 OPM asserts that, if the Board must look beyond the plain language of the

applicable statutes, the placement of section 8421(c) within the FERS “Basic

Annuity” subchapter shows that Congress intended for the basic annuity and the

annuity supplement to be treated as indivisible components of the entire annuity.

PFR File, Tab 8 at 9. Although the title and headings of a statute may be

permissible indicators of meaning and can aid in resolving an ambiguity in the

legislation’s text, a wise rule of statutory interpretation is that the title of a statute

and the heading of a section cannot limit the plain meaning of the text. Maloney

v. Executive Office of the President, 2022 MSPB 26, ¶ 11 n.8. As explained

above, the plain meaning of the statute does not support OPM’s interpretation.

Moreover, although OPM claims that it must treat the basic annuity and the

annuity supplement as a unitary entitlement to replicate CSRS benefits, such

considerations do not outweigh the statutory text.

¶19 Even if the applicable statutory provisions could be viewed as ambiguous,

i.e., as susceptible of differing, reasonable interpretations, see Pastor v.

Department of Veterans Affairs, 87 M.S.P.R. 609, ¶ 18 (2001), we agree with the

reasoning set forth by the administrative judge that OPM’s regulations and

internal instructions are not entitled to deference. As the administrative judge

found, OPM’s regulations, among other things, address other types of annuities

but not the annuity supplement, either in the regulations themselves or in the

rulemaking process implementing those regulations. ID at 11-13. In any event,

the Board will decline to give effect to OPM’s interpretation of a regulation

when, as here, there are compelling reasons to conclude that such interpretation is

erroneous, unreasonable, or contrary to the law that it purports to interpret. Evans

v. Office of Personnel Management, 59 M.S.P.R. 94, 104 (1993). We also agree

with the administrative judge’s determination that OPM’s internal instructions,

which OPM chose not to submit into the record, are not persuasive. ID at 14-16.

As the administrative judge explained, ID at 15-16, those instructions were not

issued under formal notice-and-comment rulemaking procedures, and are

therefore not entitled to the deference given to regulations, but may be entitled to

some weight based on their formality and persuasiveness and the consistency of

the agency’s position. See Brandt v. Department of the Air Force, 103 M.S.P.R.

671, ¶ 14 (2006). However, OPM did not submit those documents into the record,

even after being ordered to do so by the Acting Clerk of the Board. PFR File,

Tab 13 at 3. Information relating to that previous interpretation is essential to

evaluating the persuasiveness of OPM’s current guidance.

¶20 Finally, while this appeal was pending before the Board, the U.S. Court of

Appeals for the District of Columbia Circuit issued a decision that addressed, in a

different context, OPM’s apportioning of the annuity supplement in these types of

cases. In Federal Law Enforcement Officers Association v. Ahuja , 62 F.4th 551,

554 (D.C. Cir. 2023), FLEOA brought an action against OPM in district court

claiming that its apportioning method violated the Administrative Procedure Act.

The circuit court vacated the district court’s orders and remanded with

instructions to dismiss the case for lack of jurisdiction. Id. at 555. In so doing,

the court held that the Civil Service Reform Act and the FERS Act precluded

district court review of FLEOA’s claims because judicial review of OPM’s

method of apportioning retirement benefits was available only in the U.S. Court

of Appeals for the Federal Circuit following administrative exhaustion before the

Board. Id. at 557-60, 567. We therefore find that this court decision does not

require a different result in this case.

¶21 Having determined that apportionment of an annuity supplement must be

expressly provided for under 5 U.S.C. § 8467(a), we agree with the administrative

judge that the specific terms of the court order in this case do not expressly

provide for a division of the appellant’s annuity supplement. ID at 16-21; see

Thomas v. Office of Personnel Management, 46 M.S.P.R. 651, 654 (1991)

(describing a provision as “express” when it is “clear; definite; explicit; plain;

direct; unmistakable; not dubious or ambiguous”); cf., e.g., Hayward v. Office of

Personnel Management, 578 F.3d 1337, 1345 (Fed. Cir. 2009) (holding, in

interpreting similar “expressly provided for” language, that the intent to award a

survivor annuity “must be clear”); Davenport v. Office of Personnel Management,

62 F.3d 1384, 1387 (Fed. Cir. 1995) (“The statute requires that the pertinent court

order or property settlement ‘expressly’ provide for a survivor benefit, so as to

ensure that OPM will not contrive a disposition that the state court did not

contemplate.”).

¶22 Accordingly, we 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, therefore, reversed.

ORDER

¶23 We ORDER OPM to rescind its December 12, 2017 final 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.

¶24 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).

¶25 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).

¶26 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 out at Title 5 of

the United States Code (U.S.C.), sections 7701(g), 1221(g), 1214(g) or 3330c(b);

or 38 U.S.C. § 4324(c)(4). 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 WITHIN 60 CALENDAR

DAYS OF THE DATE OF THIS DECISION. You must file your attorney fees

motion with the office that issued the initial decision on your appeal.

NOTICE OF APPEAL RIGHTS 10

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.

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:

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.

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. 11 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).

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