De Melo v. Office of Personnel Management , 143 F. App'x 344 ( 2005 )

NOTE: Pursuant to Fed. Cir. R. 47.6, this disposition
is not citable as precedent. It is a public record.
United States Court of Appeals for the Federal Circuit
05-3104
JOSEPH F. DE MELO,
Petitioner,
v.
OFFICE OF PERSONNEL MANAGEMENT,
Respondent.
__________________________
DECIDED: August 10, 2005
__________________________
Before MICHEL, Chief Judge, SCHALL, and PROST, Circuit Judges.
PER CURIAM.
Joseph F. De Melo petitions for review of the final decision of the Merit Systems
Protection Board (“Board”) affirming the Office of Personnel Management’s (“OPM’s”)
final determination to award Mr. De Melo’s former spouse the entire net amount of his
retirement annuity. See De Melo v. Office of Pers. Mgmt., No. DC0831040153-I-1
(M.S.P.B. Jan. 6, 2005). We affirm.
BACKGROUND
After Mr. De Melo retired from Federal service, he and his wife divorced. As a
result of the divorce, OPM received a court order issued by the Superior Court of New
Jersey, Chancery Division, Family Part, Union County. This court order directed OPM
to pay Mr. De Melo’s former spouse “100% of the Retiree’s gross monthly annuity.”
In a final decision, OPM found the court order acceptable for processing.
Because OPM determined that payment could not exceed the net amount of Mr.
De Melo’s retirement annuity, see 5 C.F.R. § 838.211(b), OPM advised Mr. De Melo
that it would pay his former spouse the entire net amount rather than the gross amount
of the annuity.
Mr. De Melo filed a petition for review with the Board. Before analyzing the
merits of OPM’s determination, the administrative judge noted that
[a]lthough a hearing was initially requested and scheduled in
this appeal, on March 1, 2004, during the prehearing
conference, after a discussion of the law applicable to this
case, [Mr. De Melo] agreed that the appeal would be
adjudicated based solely on the parties’ written submissions.
The hearing scheduled was therefore canceled.
De Melo v. Office of Pers. Mgmt., No. DC0831040153-I-1, (M.S.P.B. Mar. 3, 2004), slip
op. at 2. Turning to the merits, the administrative judge indicated that Mr. De Melo did
not dispute that the court order was acceptable for processing or that it awarded his
former spouse 100% of his gross monthly retirement annuity. According to the
administrative judge, Mr. De Melo only presented assertions that were not appropriate
for the Board to address. Ultimately, the administrative judge found no basis to disturb
OPM’s findings, citing 5 U.S.C. § 8345(j)(1), 5 C.F.R. § 838.1004, and 5 C.F.R.
§ 838.211(b). The initial decision of the administrative judge became final when the full
Board denied Mr. De Melo’s petition for review.
Mr. De Melo petitions for review of the Board’s final decision. We have
jurisdiction pursuant to 28 U.S.C. § 1295(a)(9).
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DISCUSSION
We review a decision of the Board to ensure that it is not arbitrary, capricious, an
abuse of discretion, or otherwise not in accordance with law; obtained without
procedures required by law, rule, or regulation having been followed; or unsupported by
substantial evidence. 5 U.S.C. § 7703(c) (2000); Cheeseman v. Office of Pers. Mgmt.,
791 F.2d 138, 140 (Fed. Cir. 1986).
Mr. De Melo first argues that the Board’s denial of his petition for review is
“wrong” because it did not take into account all the evidence he presented to the Board
in his petition for review. With regard to this disputation, however, Mr. De Melo does not
specifically identify what evidence he believes the Board ignored. Moreover, he has not
attempted to demonstrate that with the exercise of due diligence the evidence he
presented in his petition for review would not have been available before the close of
the record. See 5 C.F.R. § 1201(d)(1) (2004); Wright v. U.S. Postal Serv., 183 F.3d
1328, 1332 (Fed. Cir. 1999).
Next, Mr. De Melo argues that the administrative judge erred in rendering her
decision “without consulting the parties involved” by canceling the scheduled hearing.
Mr. De Melo admits that there was a prehearing conference, but specifically disagrees
with the administrative judge’s statement that he “agreed that the appeal would be
adjudicated based solely on the parties’ written submissions.” Mr. De Melo’s contention
that he did not agree to waive the hearing directly contradicts the recitation of the facts
in the administrative judge’s initial decision. Mr. De Melo, however, must show “well-
nigh irrefragable proof” to overcome the “strong presumption in the law that
administrative actions are correct and taken in good faith.” Sanders v. U.S. Postal
05-3104 3
Serv., 801 F.2d 1328, 1331 (Fed. Cir. 1986). Mr. De Melo’s uncorroborated contention
fails to overcome that presumption.
Mr. De Melo additionally contends that the New Jersey court did not “divide” his
retirement benefits when it awarded 100% of the gross amount of his retirement
benefits to his wife. Mr. De Melo points us to an OPM regulation, which states:
A former spouse is entitled to a portion of an employee’s
retirement benefits only to the extent that the division of
retirement benefits is expressly provided for by the court
order. The court order must divide employee retirement
benefits, award a payment from employee retirement
benefits, or award a former spouse annuity.
5 C.F.R. § 838.1004(a) (2004) (emphases added). Indeed, this regulation refers to a
former spouse being entitled to a “portion” of retirement benefits when the “division” of
benefits is expressly provided in an appropriate court order. The relevant statute,
however, requires OPM to pay annuities “in whole or in part”:
Payments under this subchapter which would otherwise be
made to an employee, Member, or annuitant based on
service of that individual shall be paid (in whole or in part) by
the Office to another person if and to the extent expressly
provided for in the terms of–
(A) 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 . . . .
5 U.S.C. § 8345(j) (2000) (emphasis added). Thus, the regulation’s references to a
“portion” and a “division” of benefits cannot properly be read to require OPM only to
honor partial awards of annuities. In other words, OPM was required to honor the court
order’s award of the entire retirement annuity to Ms. De Melo.
05-3104 4
Mr. De Melo also maintains that the Board erred by failing to take into account
his numerous mental and physical health problems. OPM, however, has no
discretionary authority to modify the plain language of the court order for any mitigating
reason, including a mental or physical health problem. OPM is required by statute to
pay the amount expressly provided for in the terms of the court order. See id.Finally, Mr. De Melo points out that the New Jersey court made its decision
without his acknowledgment, consultation, or presence. According to Mr. De Melo, the
court order was arbitrary and capricious, an abuse of judicial discretion, and illegal for
lack of proper procedure. Specifically, Mr. De Melo alleges that some of the allegations
made by the New Jersey court, and particularly ones related to his finances, are
unsubstantiated and false. Mr. De Melo is unable to point to any statute or regulation
authorizing OPM, the Board, or this Court to review the underlying merits of a state
court divorce order disposing a retirement annuity in a divorce proceeding, and we
decline the invitation to do so. In short, this is not the proper forum for challenging the
underlying merits of the New Jersey court’s order.
We have reviewed the Board’s final decision, and we find that it is not arbitrary,
capricious, an abuse of discretion, or otherwise not in accordance with law; obtained
without procedures required by law, rule, or regulation having been followed; or
unsupported by substantial evidence.
CONCLUSION
For the foregoing reasons, we affirm the final decision of the Board.
05-3104 5