Siders v. Office of Personnel Management , 545 F. App'x 970 ( 2013 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
MAE W. SIDERS,
Petitioner,
v.
OFFICE OF PERSONNEL MANAGEMENT,
Respondent.
______________________
2013-3103
______________________
Petition for review of the Merit Systems Protection
Board in No. AT0831120162-I-1.
______________________
Decided: October 11, 2013
______________________
MAE W. SIDERS, of Lake Park, Florida, pro se.
ZACHARY J. SULLIVAN, Trial Attorney, Commercial Lit-
igation Branch, Civil Division, United States Department
of Justice, of Washington, DC, for respondent. With him
on the brief were STUART F. DELERY, Acting Assistant
Attorney General, JEANNE E. DAVIDSON, Director, and
STEVEN J. GILLINGHAM , Assistant Director. Of counsel on
the brief was PAUL ST. HILLAIRE, Deputy Assistant Gen-
eral Counsel, Office of Personnel Management, of Wash-
ington, DC.
2 SIDERS v. OPM
______________________
Before PROST, REYNA, and TARANTO, Circuit Judges.
PER CURIAM.
Mae Siders appeals from a decision of the Merit Sys-
tems Protection Board that affirmed the Office of Person-
nel Management’s denial of her claim for a former-spouse
survivor annuity. We affirm.
BACKGROUND
Mae Siders and Clarence Siders, Jr., were married for
27 years before they divorced in 1993. That year, a Flori-
da state court issued a final judgment of dissolution of
marriage, which incorporated a property settlement
agreement between the parties. The settlement agree-
ment stated that Ms. Siders was “entitled to have a
qualified domestic relations order entered . . . which shall
provide that she receive fifty percent (50%) of [Mr. Sid-
ers’s] United States Post Office pension if, as, and when
he receives such pension.” In October 1996, the same
court issued a qualified domestic relations order stating
that Ms. Siders was “hereby awarded fifty percent (50%)
in [Mr. Siders’s] entitlement under the United States Post
Office Pension Plan.”
In November 1996, OPM wrote to Ms. Siders regard-
ing her “application for a portion of [her] former spouse’s
Federal retirement benefit.” OPM explained that no
benefits were payable at that time because Mr. Siders had
“not yet retired or applied for a refund of retirement
contributions.” OPM also noted that there was “no refer-
ence to a survivor annuity award in th[e] court order,”
which meant that, as matters then stood, Ms. Siders was
“ineligible for a court awarded survivor benefit.” OPM
added, however, that she could submit an amended court
order “as long as [her] former spouse [wa]s not retired.”
SIDERS v. OPM 3
Mr. Siders died in May 2003, while he was still a fed-
eral employee. The following month, Ms. Siders filed an
application for former-spouse survivor annuity benefits
under the Civil Service Retirement System (CSRS), in
which she claimed that a court order awarding her survi-
vor benefits was “on record at OPM.” OPM apparently
denied the application shortly thereafter.
Seven years later, in 2010, Ms. Siders returned to
Florida state court and filed a motion to amend the 1996
qualified domestic relations order. The court described
her request as seeking to “clarify and specifically and
expressly provide[] for [her] entitlement to the survivor
annuity benefits.” The court granted the motion and held
that the amended language should be given retroactive
effect, back to the date of the original order.
Having secured the amendment, Ms. Siders returned
to OPM and filed another application for death benefits.
In July 2011, OPM sent a letter denying her claim for a
monthly survivor annuity. The next month, Ms. Siders
again wrote to OPM asking the agency to consider her
“ex-husband’s case file,” including the amended qualified
domestic relations order. Although OPM’s July 2011
letter granted “no reconsideration rights,” the agency
treated Ms. Siders’s August 2011 letter as a request for
reconsideration, addressed the merits of her claim, and
affirmed its initial decision. 1
1 The reconsideration decision twice refers to Ms.
Siders’s claim as seeking “benefits under the Federal
Employees Retirement System.” We assume that this
was a typographical error because (1) the July 2011
decision on review was for “a survivor annuity under the
Civil Service Retirement System”; (2) the statute cited in
the reconsideration letter, 5 U.S.C. § 8341, is the CSRS
statute; (3) the qualified domestic relations order itself
4 SIDERS v. OPM
Ms. Siders appealed to the MSPB, arguing that
OPM’s decision was based on outdated information and
failed to take account of the amended qualified domestic
relations order. In March 2012, an administrative judge
affirmed the OPM decision that she was not entitled to a
former-spouse survivor annuity. The judge explained that
the original divorce decree was “silent on the question of a
survivor annuity” and that the 2010 amendment was
“ineffective under the statute” because it was issued “after
the retirement and death of [Mr. Siders].” Ms. Siders
filed a petition for review to the full Board, which denied
the petition for the same reasons.
Ms. Siders appeals. We have jurisdiction under 28
U.S.C. § 1295(a)(9).
DISCUSSION
The Civil Service Retirement Spouse Equity Act of
1984, Pub. L. No. 98-615, 98 Stat. 3195, 3200-01, which is
codified at 5 U.S.C. § 8341, extended eligibility for survi-
vor benefits to former spouses of federal employees if
certain conditions are met. Under Section 8341(h)(1),
a former spouse of a deceased employee [or] annu-
itant . . . is entitled to a survivor annuity under
this subsection, if and to the extent expressly pro-
vided 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.
(emphasis added). Although “‘magic words’” are not
required, this provision sets out a strict rule: a court
order or settlement agreement, in order to convey a
former-spouse survivor annuity, must do so unambiguous-
refers to benefits under the CSRS; and (4) the parties’
briefs to this court focus on CSRS authorities.
SIDERS v. OPM 5
ly. Warren v. Office of Pers. Mgmt., 407 F.3d 1309, 1313
(Fed. Cir. 2005); see also 5 C.F.R. § 838.912 (giving exam-
ples of language that is sufficiently clear). Moreover, “an
award directing the payment of a share of a federal em-
ployee’s retirement benefits is distinct from, and will not
be interpreted as, an award of a survivor annuity.”
Hokanson v. Office of Pers. Mgmt., 122 F.3d 1043, 1046
(Fed. Cir. 1997).
The statute also strictly limits the period in which
court orders and court-approved settlement agreements
may be modified in order to provide for, or otherwise
address, a former-spouse survivor annuity:
For purposes of this subchapter, a modification in
a decree, order, agreement, or election referred to
in paragraph (1) of this subsection shall not be ef-
fective–
(A) if such modification is made after the
retirement or death of the employee or
Member concerned, and
(B) to the extent that such modification
involves an annuity under this subsection.
5 U.S.C. § 8341(h)(4). This prohibition includes orders
that purport to “explain[], interpret[], or clarify[]” an
earlier court order. 5 C.F.R. § 838.806(b); see also 5
C.F.R. § 838.1004(e)(4)(ii)(A); Rafferty v. Office of Pers.
Mgmt., 407 F.3d 1317, 1322 (Fed. Cir. 2005) (“[A] first
order dividing marital property yet silent with respect to
a survivor annuity cannot be altered by a subsequent
order providing a survivor annuity.”); Hokanson, 122 F.3d
at 1045, 1048 (post-death order that “purported to clarify
the divorce decree” was a “‘modification’ of th[e] decree
and . . . therefore ineffective for purposes of awarding . . .
a former spouse survivor annuity”).
The MSPB properly affirmed OPM’s denial of Ms.
Siders’s claims for a former-spouse survivor annuity
6 SIDERS v. OPM
under these authorities. Like the 1993 settlement agree-
ment, the 1996 court order refers only to a “fifty percent
(50%) [share] in [Mr. Siders’s] entitlement under the
United States Post Office Pension Plan.” That pertains to
retirement benefits; it neither provides for a survivor
annuity nor reserves disposition of the issue for later
decision. Indeed, the “reference to ‘[f]ifty [p]ercent’ of the
benefits available has no sensible application to a survi-
vor annuity, which by its nature is not shared between
the retiree and the survivor.” Warren, 407 F.3d at 1314.
Accordingly, as OPM told Ms. Siders in November 1996,
the original court order did not “expressly provide[] for” a
survivor annuity.
Despite OPM’s warning, we see no indication in the
record that Ms. Siders sought to amend the qualified
domestic relations order until 2010, years after Mr. Sid-
ers’s death. That was too late. No matter what label is
used to characterize the 2010 court order, two things are
clear: the order issued after Mr. Siders’s death, and it
amended—i.e., modified—the 1996 order by adding lan-
guage about a survivor annuity that was absent from the
original order. Pursuant to 5 U.S.C. § 8341(h)(4), there-
fore, the modification is ineffective for present purposes.
See, e.g., Rafferty, 407 F.3d at 1322; Vaccaro v. Office Of
Pers. Mgmt., 262 F.3d 1280, 1287 (Fed. Cir. 2001); Hokan-
son, 122 F.3d at 1047-48.
Before concluding, we address briefly Ms. Siders’s
statements claiming that the record is incomplete and
that additional documents can and should be considered.
First, to the extent that such documents post-date Mr.
Siders’s death, they could have no bearing on the 1996
qualified domestic relations order and would be ineffec-
tive for the same reason that the 2010 court-ordered
amendment is. 5 U.S.C. § 8341(h)(4). Second, and in any
event, the scope of our review is limited by statute to the
record that was before the Board. 5 U.S.C. § 7703(c); see
also, e.g., Oshiver on Behalf of Oshiver v. Office of Pers.
SIDERS v. OPM 7
Mgmt., 896 F.2d 540, 542 (Fed. Cir. 1990). And, on that
record, we find that the Board properly sustained OPM’s
denial of Ms. Siders’s application for a former-spouse
survivor annuity.
No costs.
AFFIRMED