Rosemary Irving v. Office of Personnel Management ( 2022 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ROSEMARY R. IRVING, DOCKET NUMBER
Appellant, DE-0843-16-0327-I-1
v.
OFFICE OF PERSONNEL DATE: July 13, 2022
MANAGEMENT,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Rosemary R. Irving, Phoenix, Arizona, pro se.
Karla W. Yeakle, Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
affirmed the decision of the Office of Personnel Management (OPM) denying her
survivor benefits as a former spouse. Generally, we grant petitions such as this
one only in the following circumstances: the initial decision contains erroneous
1
A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
2
findings of material fact; the initial decision is based on an erroneous
interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115).
After fully considering the filings in this appeal, we conclude that the appellant
has failed to establish any basis under section 1201.115 for granting the petition
for review. Therefore, we DENY the petition for review . Except as expressly
MODIFIED by this Final Order to clarify the basis for finding that the appellant
is not entitled to survivor benefits, we AFFIRM the initial decision.
BACKGROUND
¶2 On October 11, 2012, the appellant and her husband , a Federal employee,
divorced after 26 years of marriage. Initial Appeal File (IAF), Tab 6 at 78-93.
He remained a Federal employee until he died on April 3, 2015, at age 57, with
28 years of service. Id. at 50-56. On May 20, 2015, the appellant filed an
application for death benefits under the Federal Employees’ Retirement System
(FERS) based on her former husband’s service, id. at 24-28, and their divorce
decree, id. at 19.
¶3 In an initial decision, OPM notified the appellant that, although she was not
eligible for a monthly apportionment of her former husband’s annuity, she was
approved for a survivor annuity in the amount of $1 per month. Id. at 21. She
requested reconsideration, arguing that she was under stress at the time of the
divorce and that the provision entitling her to $1 per month in survivor annuity
benefits was included in the decree and the court order incident to the decree so
that she would be able to maintain her health benefits. Id. at 9-10. She
3
contended that OPM should not have accepted the decree as an acceptable court
order because it is ambiguous and contains confusing language, id. at 10, and
leads to an unfair and inequitable result, id. at 14. In its reconsideration decision
affirming its initial decision, OPM found that the appellant was not entitled to an
apportionment of her former husband’s annuity because he died while in service
and had not yet applied for a retirement annuity, but that she was entitled to a
survivor annuity in the amount of $1 per month, as provided for in the “Court
Order Acceptable for Processing Retirement Benefits (Federal Employees
Retirement System….),” signed by the parties and submitted by the appellant to
OPM in 2012. Id. at 5-7.
¶4 On appeal, the appellant renewed her claim that the court order was not
acceptable for processing when it was submitted because of confusing and
ambiguous language between the divorce decree and the court order incident to
the decree, IAF, Tab 1 at 7-12, and she sought her former husband’s “full
survivor annuity” based on what she contended was his intention, id. at 12. She
subsequently requested a hearing, IAF, Tab 8, but later withdrew her request,
IAF, Tab 12. The administrative judge afforded the parties a final opportunity to
submit evidence and argument on the relevant issues, IAF, Tab 13, and the
appellant did so, IAF, Tab 14.
¶5 Thereafter, the administrative judge issued an initial decision affirming
OPM’s reconsideration decision. IAF, Tab 15, Initial Decision (ID) at 1, 4.
Citing 5 C.F.R. § 838.222, the administrative judge found that the appellant is not
entitled to any retirement benefit because her former husband was not receiving
an annuity at the time of his death. The administrative judge further found that
“the issue of [the appellant’s] divorce decree, and whether it should have been
rejected, is immaterial.” ID at 3-4.
¶6 The appellant has filed a petition for review, Petition for Review (PFR)
File, Tab 1, to which the agency has responded in opposition, PFR File, Tab 4.
4
ANALYSIS
¶7 To the extent the appellant challenges on review the administrative judge’s
finding that she is not entitled to an apportionment of her former husband’s
annuity, ID at 3, we discern no basis upon which to disturb that finding.
Regardless of the fact that the 2012 court order purported to assign the appellant
an interest in her former husband’s annuity, IAF, Tab 6 at 67, the annuity “was
not in pay status,” at the time of his death because he had not yet retired.
5 C.F.R. § 838.222(c); 2 ID at 3. Therefore, there was no annuity to be
apportioned.
¶8 The appellant’s main argument on review, however, is that the
administrative judge refused to consider her challenge to the court order that
OPM found acceptable for processing, particularly as it relates to her entitlement
to a survivor annuity. PFR File, Tab 1. We agree with the appellant that the
court order is not “immaterial.” ID at 4.
¶9 The appellant’s right to a survivor annuity as a former spouse is governed
by the portion of the FERS statute codified at 5 U.S.C. § 8445. That section of
the FERS statute provides that a former spouse of a deceased employee is entitled
to a survivor annuity “if and to the extent expressly provided for” in either :
(1) an election under § 8417(b) of the FERS statute; 3 or (2) the terms of any
decree of divorce or annulment or any court order or court -approved property
settlement agreement incident to such decree. See 5 U.S.C. § 8445(a). Although
the “expressly provided for” provision of § 8445(a) does not require the use of
“magic words,” the intent to provide a survivor annuity must be clear, definite,
explicit, plain, direct, and unmistakable, not dubious or ambiguous. See Holzman
2
Pursuant to 5 C.F.R. § 838.22, “[i]f OPM receives a court order acceptable for
processing that is directed at an employee annuity that is not in pay status, OPM will
inform . . . the former spouse . . . that benefits cannot begin to accrue until the
employee retires, or enters phased retirement status.”
3
The appellant’s former husband made no such election because he died prior to
retiring.
5
v. Office of Personnel Management, 62 M.S.P.R. 254, 257 (1994) (interpreting
identical language found in 5 U.S.C. § 8341(h)(1)), aff’d, 48 F.3d 1237 (Fed. Cir.
1995) (Table). Under 5 C.F.R. § 838.804(b), in order to expressly award a former
spouse survivor annuity or expressly direct an employee or annuitant to provide a
former spouse survivor annuity, the court order must expressly state that the
former spouse is entitled to a survivor annuity using terms similar to those
described by § 838.912. See 5 C.F.R. § 838.804(b)(2). For example, the court
order must contain language such as “survivor annuity,” “death benefits,” or
“former spouse survivor annuity.” 5 C.F.R. § 838.912(a).
¶10 Here, the parties, both represented by counsel, signed a “Court Order
Acceptable for Processing Retirement Benefits (Federal Employees’ Retirement
System; United States Office of Personnel Management)” that was filed in the
Superior Court for the State of Arizona in and for the County of Maricopa on
October 22, 2012, incident to the divorce decree filed the same date . IAF, Tab 6
at 65-70. The order provided in pertinent part that:
Husband will, by this Order, be deemed to have elected the survivor
annuity benefit, FERS will record Husband as having elected the
survivor annuity benefit, and Former Spouse shall be designated as
the survivor beneficiary in the amount of $1 per month (the cost of
which shall be charged to the Former Spouse’s share) until she is
eligible for coverage under Medicare, which for the purposes of this
Order shall be October 1, 2024.
Id. at 67-68. The appellant submitted the order to OPM seeking approval of the
benefits it provided. Id. at 63. Consistent with 5 C.F.R. § 838.222(c), OPM
notified the parties and the appellant’s attorney on August 8, 2013, that it had
approved the appellant’s application for benefits as set forth in the order, id.
at 60-62, that her former spousal retirement benefits would begin when her
former husband retired, and that it intended to honor her survivor annuity award
in the amount of $1 per month. It also enclosed references to applicable
regulations that must be followed in awarding court ordered benefits. Id.6
¶11 On review, the appellant challenges on several grounds OPM’s decision to
accept the order for processing. She claims that the “Medicare language” in the
divorce decree is ambiguous because it does not specify a date on which she will
be eligible for Medicare and that therefore extrinsic evidence as to the parties’
intentions should be considered. PFR File, Tab 1 at 3-7. However, the decree
provides that the award of the appellant’s share of her former husband’s FERS
benefit (and his Thrift Savings Plan benefit) shall be accomplished by court
orders directed to the plan’s administrators. IAF, Tab 6 at 82. As noted, the
separate order concerning retirement benefits that was incident to the decree and
that the appellant submitted to OPM for enforcement, and that OPM found
acceptable for processing, specifically stated that the appellant would receive a
monthly survivor benefit of $1 per month until she would become eligible for
Medicare “which for the purposes of this Order shall be October 1, 2024.” Id.
at 68. Therefore, there is no ambiguity as to what the appellant’s survivor benefit
is or for how long she will receive it. 4 Fox v. Office of Personnel Management,
100 F.3d 141, 146 n.3 (1996) (explaining that, when the plain meaning of the
operative term grants an annuity, the annuity must be awarded, regardless of
extrinsic evidence). There is thus no basis for the appellant’s argument that OPM
should have returned the order to her former husband, “giving him the
opportunity to review the wording again.” PFR File, Tab 1 at 4.
¶12 The appellant further claims on review that she was not in her best mental
state when she signed the divorce papers. Id. She was, however, represented by
counsel during the divorce proceedings and when she signed the court order at
4
We have considered the cases the appellant has cited in support of her positon and
find them inapposite. For example, Newman v. Teigeler, 898 F.2d 1574 (Fed. Cir.
1990), concerned an issue of statutory construction involving a provision of the
amendments to the Civil Service Retirement Spouse Equity Act of 1984. In Davenport
v. Office of Personnel Management, 62 F.3d 1384, 1387 (Fed. Cir. 1995), the court
found that OPM could consult a divorce decree when it clarified the meaning of the
Qualified Domestic Relations Order at issue. Here, we have found that the order was
not ambiguous and therefore it needed no clarification.
7
issue here, including the provision she now challenges, which, she acknowledges,
assured that she would continue to have needed health benefits following the
divorce. To the extent the appellant now seeks to substitute terms in the order
that would be more favorable to her, any such modification is precluded because
of her former husband’s death. 5 C.F.R. § 838.806(b)(1). In any event, the
appellant is responsible for the errors of her chosen representative. Sofio v.
Internal Revenue Service, 7 M.S.P.R. 667, 670 (1981).
¶13 Finally, the appellant argues on review that the order, as enforced by OPM,
is patently unfair and inequitable. 5 PFR File, Tab 1 at 8. While we are
sympathetic, the U.S. Supreme Court has held that the Government cannot be
estopped from denying benefits not otherwise permitted by law . Office of
Personnel Management v. Richmond, 496 U.S. 414, 416, 434 (1990).
NOTICE OF APPEAL RIGHTS 6
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. 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 an d
5
On review, the appellant renews her claim that, even though her former husband had
28 years of Federal service, none of their children will r eceive benefits. PFR File,
Tab 1 at 8. That is not a matter that we can consider in this appeal in which the
appellant contests the denial of her own benefits. However, if she believes that any of
the minor children have not received benefits to which, based on their father’s Federal
service, they are entitled, she must file a claim on their behalf with OPM. If OPM
issues unfavorable decisions initially and on reconsideration, she then may pursue an
appeal with the Board on behalf of her minor children.
6
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.
8
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If yo u 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 you r 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 Appea ls for the
Federal Circuit, you must submit your petition to the court at the
following address:
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
9
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. ____ , 137 S. Ct. 1975 (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
10
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. 7 The court of appeals must receive your petition for
7
The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent juri sdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S . Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
11
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
following address:
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.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
FOR THE BOARD: /s/ for
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.