Desanto v. Office of Personnel Management ( 2010 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2010-3049
REYNOLD RICHARD DESANTO,
Petitioner,
v.
OFFICE OF PERSONNEL MANAGEMENT,
Respondent.
Reynold R. DeSanto, of Locust Grove, Virginia, pro se.
Stacey K. Grigsby, Trial Attorney, Commercial Litigation Branch, Civil Division,
United States Department of Justice, of Washington, DC, for respondent. With her on
the brief were Tony West, Assistant Attorney General, Jeanne E. Davidson, Director,
and Donald E. Kinner, Assistant Director.
Appealed from: Merit Systems Protection Board
NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2010-3049
REYNOLD RICHARD DESANTO,
Petitioner,
v.
OFFICE OF PERSONNEL MANAGEMENT,
Respondent.
__________________________
DECIDED: March 5, 2010
__________________________
Before MICHEL, Chief Judge, RADER, Circuit Judge, and FOLSOM, District Judge. ∗
PER CURIAM.
Reynold Richard DeSanto (“Mr. DeSanto”) appeals a decision of the Merit
Systems Protection Board (“MSPB”) affirming OPM’s apportionment of his annuity to his
two children pursuant to a qualifying court order. For the reasons that follow, we affirm
the decision of the MSPB.
I. BACKGROUND
Mr. DeSanto married Louise DeSanto (“Ms. DeSanto”) on September 17, 1955.
Mr. DeSanto retired from Federal service on June 3, 1986 and subsequently divorced
Ms. DeSanto on November 16, 1987. The court decree of divorce awarded Ms.
∗
The Honorable David Folsom, Chief Judge, United States District Court for
the Eastern District of Texas, sitting by designation.
DeSanto 41 percent of Mr. DeSanto’s monthly annuity and further stated that if Ms.
DeSanto predeceased Mr. DeSanto, her portion of the annuity “shall be payable equally
to her children, if living . . . TERESA MARIE DESANTO and KATHERINE LOUISE
DESANTO [AMEN].”
OPM subsequently received the divorce decree and notified Mr. DeSanto that it
would honor the order. Mr. DeSanto requested reconsideration because the calculation
of Ms. DeSanto’s share of the royalty appeared to exceed the amount specified in the
court order. OPM then reduced the amount it would deduct from Mr. DeSanto’s annuity.
Mr. DeSanto did not otherwise challenge the validity of the divorce decree until after Ms.
DeSanto’s death.
After Ms. DeSanto died, Mr. DeSanto requested that OPM restore his annuity to
the full amount, but OPM denied this request on January 9, 2009 because the divorce
decree awarded Ms. DeSanto’s share of the annuity to the DeSantos’ two children
should she predecease Mr. DeSanto. Mr. DeSanto requested reconsideration, but
OPM affirmed its previous determination that the divorce decree required OPM to pay
Ms. DeSanto’s share of the annuity to their two living children.
Mr. DeSanto then appealed to the MSPB, which affirmed OPM’s denial of
reconsideration on July 24, 2009. Mr. DeSanto filed a petition for review with the full
board, which was denied. The initial decision became final on October 5, 2009 and Mr.
DeSanto timely appealed to this Court.
II. DISCUSSION
Our scope of review in an appeal from a MSPB decision is limited. We must
affirm a MSPB decision unless it is:
2010-3049 2
(1) arbitrary, capricious, an abuse of discretion, or otherwise not
in accordance with law;
(2) obtained without procedures required by law, rule, or
regulation having been followed; or
(3) unsupported by substantial evidence.
5 U.S.C. § 7703(c). The burden of establishing deficiencies in an administrative
decision rests with the petitioner. Cheeseman v. Office of Personnel Mgmt., 791 F.2d
138, 140 (Fed. Cir. 1986). Mr. DeSanto has failed to meet this burden.
OPM must make annuity payments otherwise payable to a retired Federal
employee “to another person if and to the extent expressly provided for in the terms of .
. . any court decree of divorce . . . or the terms of any court order or court-approved
property settlement agreement incident to any court decree of divorce.” 5 U.S.C. §
8345(j)(1). Moreover, OPM regulations expressly provide that “OPM will honor a
qualifying court order . . . that directs OPM to pay, after the death of the former spouse,
the former spouse’s share of the employee annuity to . . . one or more of the retiree’s
children.” 5 C.F.R. § 838.1012(b)(4).
The MSPB examined all of the relevant facts. The divorce decree directed OPM
to pay 41 percent of Mr. DeSanto’s annuity to Ms. DeSanto. The divorce decree further
directed OPM to pay, after Ms. DeSanto’s death, her portion of the annuity to the
DeSantos’ two children. Thus, the MSPB properly concluded that the decree was a
“qualifying court order” that required OPM to pay 41 percent of Mr. DeSanto’s annuity to
the two children.
Mr. DeSanto argues that the MSPB erred by applying 5 C.F.R. § 838.1012
instead of an earlier version of the regulation, 5 C.F.R. § 831.1712, that was in effect at
the time of his divorce. We disagree. 5 C.F.R. § 831.1712 was redesignated 5 C.F.R.
2010-3049 3
§ 838.1012 in 1992. See 57 Fed. Reg. 120, at 149-50 (Jan. 2, 1992); 57 Fed. Reg.
33570 (July 29, 1992). Moreover, the 1992 amendments expressly state that court
orders affecting Civil Service retirement benefits, including 5 C.F.R. § 838.1012, apply
retroactively. 5 C.F.R. § 838.101(c)(2) (“Subpart J [§§ 838.1002-838.1018] applies only
to orders received by OPM before January 1, 1993.”); 5 C.F.R. § 838.102(a)(6)
(“Subpart J [§§ 838.1002-838.1018] . . . contains the rules applicable to court orders
filed under procedures in effect prior to the implementation of this part. These rules
continue to apply to court orders received by the OPM before January 1, 1993.”). Thus,
the Board properly applied 5 C.F.R. § 838.1012 to the DeSantos’ divorce decree even
though the regulation was promulgated after the decree was entered.
We also disagree with Mr. DeSanto’s argument that OPM regulations only
authorize payment to children under 18 years of age. 5 C.F.R. § 838.1012 expressly
states that benefits may be apportioned to “[o]ne or more of the retiree’s children as
defined in section 8342(c) or section 8424(d) of title 5, United States Code.” These
sections both define “child” to “include[] a natural child and an adopted child, but [not] a
stepchild.” 1 5 U.S.C. § 8342(c); 5 U.S.C. § 8424(d). Neither section limits “children” to
minors under the age of 18. Mr. DeSanto refers to a different and inapplicable
provision, 5 U.S.C. § 8345(j)(3)(c), which defines “child” as “an individual under 18
years of age” but expressly states that the definition applies only to that subsection.
The use of “child” in that subsection is in the distinguishable context of judgments
against individuals for “physically, sexually, or emotionally abusing a child.” See 5
U.S.C. § 8345(j)(3)(c).
1
Mr. DeSanto does not dispute that Teresa Marie DeSanto and Katherine
Louise DeSanto Amen are his and Ms. DeSanto’s natural children.
2010-3049 4
We have considered Mr. DeSanto’s remaining arguments, but find them
unpersuasive. We therefore affirm the MSPB’s decision apportioning Mr. DeSanto’s
annuity to his two children pursuant to a qualifying court order.
COSTS
No costs.
2010-3049 5