Emond v. Office of Personnel Management , 644 F. App'x 1013 ( 2016 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
ELIZABETH A. EMOND,
Petitioner
v.
OFFICE OF PERSONNEL MANAGEMENT,
Respondent
______________________
2016-1227
______________________
Petition for review of the Merit Systems Protection
Board in No. DC-831M-12-0383-B-1.
______________________
Decided: April 8, 2016
______________________
ELIZABETH A. EMOND, Alexandria, VA, pro se.
MICHAEL D. SNYDER, Commercial Litigation Branch,
Civil Division, United States Department of Justice,
Washington, DC, for respondent. Also represented by
BENJAMIN C. MIZER, ROBERT E. KIRSCHMAN, JR., BRIAN A.
MIZOGUCHI; JESSICA S. JOHNSON, Office of General Coun-
sel, Office of Personnel Management, Washington, DC.
______________________
2 EMOND v. OPM
Before DYK, MAYER, and STOLL, Circuit Judges.
PER CURIAM.
Elizabeth A. Emond petitions for review of a decision
of the Merit Systems Protection Board (“MSPB”) ruling
that she is not entitled to receive a former spouse annuity.
We affirm.
BACKGROUND
Until their divorce in 1989, Ms. Emond was married
to Bobby Burns, a federal employee who died while still
employed by the Internal Revenue Service. In 2009, Ms.
Emond applied to the United States Office of Personnel
Management (“OPM”) for a survivor annuity. Relying on
a copy of a March 24, 1989, divorce decree from Virginia
state court that Ms. Emond had provided, which awarded
Ms. Emond a former spouse survivor annuity, OPM
granted Ms. Emond a survivor annuity. In 2010, OPM
received a different version of the same divorce decree
that had been filed in connection with an application from
Leona Burns, Mr. Burns’ mother, to receive Mr. Burns’
retirement contributions. This version did not state that
Ms. Emond was entitled to a former spouse survivor
annuity. In light of this new version, OPM informed Ms.
Emond that she was not in fact eligible for a former
spouse annuity benefit, and OPM determined that it had
made a $62,739.96 overpayment to Ms. Emond and
sought to recover that sum.
Ms. Emond sought reconsideration of OPM’s decision
and, alternatively, a waiver for the overpayment. OPM
denied both requests. Ms. Emond timely appealed to the
MSPB, which determined that the record was not fully
developed and ordered OPM to obtain an order from the
Virginia state court declaring which version of the divorce
decree was the correct one. The Circuit Court of Fairfax
EMOND v. OPM 3
County, Virginia ultimately found that the new version
submitted in connection with Leona Burns’ application—
not the version originally submitted by Ms. Emond—was
the true and correct copy. In light of this finding, the
MSPB determined that Ms. Emond was not entitled to a
survivor annuity, Emond v. Office of Pers. Mgmt., No. DC-
831M-12-0383-I-2, (M.S.P.B. June 25, 2015), but also
found that Ms. Emond was not at fault for the overpay-
ment and was therefore entitled to a waiver. Emond v.
Office of Pers. Mgmt., No. DC-831M-12-0383-B-1
(M.S.P.B. Oct. 9, 2015). Ms. Emond petitions for review of
the determination that she is not entitled to a survivor
annuity. OPM curiously does not seek review of the
determination that Ms. Emond is entitled to a waiver for
the overpayment. We have jurisdiction under 28 U.S.C.
§ 1295(a)(9).
DISCUSSION
We must affirm the decision of the MSPB unless it
was (1) arbitrary, capricious, or an abuse of discretion, or
otherwise not in accordance with law; (2) obtained with-
out procedures required by law, rule, or regulation having
been followed; or (3) unsupported by substantial evidence.
5 U.S.C. § 7703(c); Salmon v. Soc. Sec. Admin., 663 F.3d
1378, 1380 (Fed. Cir. 2011).
A government employee who pays for survivor annui-
ty benefits can elect to have those benefits distributed to a
former spouse, or such benefits can be awarded pursuant
to a court order, such as a divorce decree. See, e.g.,
5 C.F.R. §§ 842.604(g), 838.701(a). A person adversely
affected by a court order who alleges that the order is
invalid must prove its invalidity and may do so by sub-
mitting to OPM a different court order that declares
invalid the original order submitted by the former spouse.
5 C.F.R. § 838.724(a)(1). State courts are responsible for
4 EMOND v. OPM
determining when court orders are invalid. Id.
§ 838.122(d).
Here, the Circuit Court of Fairfax County, Virginia is-
sued an order explicitly stating that Ms. Emond’s version
of the divorce decree “is not a true and accurate copy,”
while the version submitted in connection with Leona
Burns’ application is “true and accurate.” Resp’t’s App.
17. Because OPM’s original award of former spouse
survivor benefits was based on the terms of a divorce
decree that was subsequently found to be inaccurate by
the Virginia court, the MSPB determined that Ms. Emond
was not eligible for a survivor annuity. Ms. Emond
argues that the Virginia court order did not “invalidate”
the divorce decree she submitted. The MSPB properly
rejected this argument, which is more semantic than
substantive. The Virginia court’s order, while not formal-
ly invalidating the earlier order, explicitly determined
that Ms. Emond’s version of the divorce decree was not a
“true and accurate copy.” Id. The MSPB’s determination
that Ms. Emond is not entitled to a survivor annuity is
supported by substantial evidence.
We have considered Ms. Emond’s other arguments
and find them to be without merit. Accordingly, we affirm
the MSPB’s determination that Ms. Emond is not entitled
to a survivor annuity.
AFFIRMED
COSTS
No costs.