Judi Ready v. Office of Personnel Management ( 2024 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JUDI R. READY, DOCKET NUMBER
Appellant, DE-0843-19-0010-I-1
v.
OFFICE OF PERSONNEL DATE: June 13, 2024
MANAGEMENT,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Judi R. Ready , Salida, Colorado, pro se.
Jane Bancroft and Alison Pastor , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member*
*Member Kerner did not participate in the adjudication of this appeal.
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
affirmed the reconsideration decision by the Office of Personnel Management
(OPM), denying her application for a former spouse survivor annuity. Generally,
we grant petitions such as this one only in the following circumstances: the
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
initial decision contains erroneous 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 petitioner has not established any basis under section
1201.115 for granting the petition for review. Therefore, we DENY the petition
for review and AFFIRM the initial decision, which is now the Board’s final
decision. 5 C.F.R. § 1201.113(b).
BACKGROUND
The appellant’s former husband, Mr. Hommertzheim, retired while the
couple was still married, and elected for her to receive a Federal Employees’
Retirement System (FERS) survivor annuity upon his death. Initial Appeal File
(IAF), Tab 9 at 31, 35. The couple subsequently entered into an October 2013
separation agreement that was silent about the award of a survivor annuity to the
appellant. Id. at 21-25. The Chaffee County District Court in Colorado issued a
November 13, 2013 Decree of Dissolution of Marriage that incorporated the
couple’s October 2013 separation agreement. Id. at 27-29. On January 6, 2014,
that court issued a Court Order Acceptable for Processing, which addressed the
appellant’s entitlements to her ex-husband’s FERS benefits. Id. at 16-20.
Specifically, the order assigned to the appellant 50% of Mr. Hommertzheim’s
gross monthly annuity. Id. at 17.
The order more generally stated that the appellant is entitled to a portion of
Mr. Hommertzheim’s FERS benefits, which could include “a portion of the [his]
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Annuity, a Refund of Employee Contributions[,] or . . . a Survivor Annuity to the
Former Spouse.” Id. at 16. Although the order recognized the possibility of a
survivor annuity, it did not award one. Id. at 16-20.
The appellant filed the court order with OPM, and, as set forth in the order,
OPM approved her receipt of 50% of her former spouse’s gross annuity benefit.
IAF, Tab 9 at 14-15, Tab 12 at 5. OPM advised her that the order made no
reference to a survivor annuity award. IAF, Tab 9 at 14.
The parties do not dispute that Mr. Hommertzheim received annual notices
from OPM in, as pertinent here, December 2012, December 2013, and December
2014. IAF, Tab 14 at 4, Tab 18, Initial Decision (ID) at 5. Those notices
explained to him that, if he had previously elected a survivor annuity for his
then-spouse, it “terminate[d] upon . . . divorce,” and “a new survivor election
[was] required within 2 years after the divorce if [he] wish[ed] to provide a
former spouse [survivor] annuity.” IAF, Tab 14 at 7. He made no new election.
IAF, Tab 9 at 5, 8.
Mr. Hommertzheim died in November 2017. IAF, Tab 1 at 4, Tab 9 at 5.
The appellant filed an application with OPM for former spouse survivor annuity
benefits, and OPM denied the request in an initial and then a reconsideration
decision. IAF, Tab 9 at 5-9, 13.
The appellant filed this appeal, disputing OPM’s determination that she
was not entitled to an annuity. IAF, Tab 1. The administrative judge held a
telephonic hearing. IAF, Tab 17. She affirmed OPM’s reconsideration decision,
reasoning that the appellant’s right to a survivor annuity terminated with her
divorce from Mr. Hommertzheim, and none of the court decrees in the record
expressly provided, or could fairly be read as awarding, a survivor annuity. ID
at 4-5. Although the administrative judge found it undisputed that OPM
continued to reduce Mr. Hommertzheim’s monthly annuity payments after the
divorce, she also found that he received OPM’s annual notices advising him of
the need to make a former spouse survivor annuity election within 2 years of the
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divorce. ID at 5. Thus, because Mr. Hommertzheim made no such election, the
administrative judge found that OPM properly denied the appellant’s survivor
annuity application. ID at 6.
The appellant has filed a petition for review in which she alleges that her
former spouse elected a survivor annuity for her and OPM lost the documentation.
Petition for Review (PFR) File, Tab 1 at 6. She also asserts that OPM reduced
her former spouse’s annuity payments to fund her annuity but has not “offered or
awarded [her] back pay for those amounts.” Id. OPM has filed a response to the
appellant’s petition for review. PFR File, Tab 6.
DISCUSSION OF ARGUMENTS ON REVIEW
The appellant’s right to a survivor annuity as a former spouse is governed
by the portion of FERS codified at 5 U.S.C. § 8445. That section 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 5 U.S.C.
§ 8417(b) 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.”
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 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 per curiam, 48 F.3d 1237 (Fed. Cir. 1995) (Table)). The
court order “must specify that it is awarding a former spouse survivor annuity” by
using terms such as “survivor annuity” or “death benefits,” and by stating that the
former spouse is to receive survivor annuity benefits or that the retiree is to
maintain those benefits. 5 C.F.R. §§ 838.804(b), 838.912(a)-(b).
The administrative judge found, and the parties do not dispute on review,
that the divorce agreement did not provide for a survivor annuity. ID at 4. We
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agree that the court order that the appellant presented did not expressly state that
the appellant was entitled to, or direct Mr. Hommertzheim to provide, a former
spouse annuity as required by the statute. IAF, Tab 9 at 16-20. Thus, we discern
no basis to disturb this finding.
The administrative judge also found that Mr. Hommertzheim did not make
a post-divorce election of a survivor annuity for the appellant. ID at 5. In her
petition for review, the appellant again contends that Mr. Hommertzheim did so.
PFR File, Tab 1 at 6; IAF, Tab 12 at 1-2. She has provided no additional support
for her assertion. 2 PFR File, Tab 1 at 6; IAF, Tab 12 at 1-2. Below, she stated
during her testimony that her spouse told her he would elect the survivor annuity,
and “he told [her] he took care of it.” IAF, Tab 17, Hearing Recording (testimony
of the appellant). However, she testified that she had no knowledge as to whether
he carried through with these assurances. Id. Under these circumstances, we
agree with the administrative judge that the appellant did not meet her burden to
prove that Mr. Hommertzheim made the necessary election. See Cheeseman v.
Office of Personnel Management, 791 F.2d 138, 140-41 (Fed. Cir. 1986)
(explaining that the burden of proving entitlement to a survivor annuity is on the
applicant for benefits).
It is undisputed that Mr. Hommertzheim received annual notices sent to all
annuitants by OPM informing him of his right to make an election for a former
spouse survivor annuity. IAF, Tab 14; ID at 5. OPM must notify each Civil
Service Retirement System (CSRS) annuitant annually of his former spouse
survivor annuity election rights. 5 U.S.C. § 8339 note; see Cartsounis v. Office of
Personnel Management, 91 M.S.P.R. 502, ¶ 5 (2002) (explaining OPM’s
2
The appellant argues on review that OPM lost the document reflecting
Mr. Hommertzheim’s election. PFR File, Tab 1 at 6. She did not raise this claim
below. IAF, Tab 12 at 1-2, Tab 17, Hearing Recording (testimony of the appellant).
The Board generally will not consider an argument raised for the first time in a petition
for review absent a showing that it is based on new and material evidence not
previously available despite the party’s due diligence. Clay v. Department of the Army,
123 M.S.P.R. 245, ¶ 6 (2016). The appellant has made no such showing. Therefore, we
have not considered her new argument here.
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obligation to notify CSRS annuitants annually of their survivor annuity election
rights under 5 U.S.C. § 8339(j) and (k)(2)). There is no corresponding
requirement under FERS, but OPM nevertheless sends the notice to all annuitants.
IAF, Tab 14 at 4; compare 5 U.S.C. § 8339 note (requiring annual notification of
a retiree’s right to elect a former spouse annuity under CSRS), and 5 C.F.R.
§ 831.681 (same), with 5 U.S.C. § 8417(b) (permitting a retiree to elect to provide
a former spouse survivor annuity under FERS without mention of an OPM notice
requirement), and 5 C.F.R. § 842.611 (same). Regardless of whether it was
required to do so, the administrative judge found that OPM provided adequate
notice to Mr. Hommertzheim of his right to elect to provide a former spouse
survivor annuity and he did not do so. ID at 4-5. We decline to disturb these
findings. IAF, Tab 4 at 7; see Holder v. Office of Personnel Management ,
47 F.3d 412, 415 (Fed. Cir. 1995) (finding sufficient OPM’s notice to an
annuitant that if he was divorced, he had a specified time period to elect a former
spouse survivor annuity under CSRS).
Both below and on review, the appellant observed that OPM
“never . . . offered or awarded [her] back pay” representing the amount by which
it reduced her ex-husband’s annuity to provide the appellant with a survivor
annuity. PFR File, Tab 1 at 6; IAF, Tab 1 at 4. The administrative judge failed
to address this claim. Nonetheless, we find that her error was harmless.
Panter v. Department of the Air Force, 22 M.S.P.R. 281, 282 (1984) (explaining
that an adjudicatory error that is not prejudicial to a party’s substantive rights
provides no basis for reversal of an initial decision). According to OPM notices
that the appellant provided below, Mr. Hommertzheim’s annuity payments were
erroneously reduced to fund a survivor annuity for the appellant. IAF, Tab 1
at 5-6. The appellant may be seeking a lump -sum death benefit under 5 U.S.C.
§ 8424(c)-(d). However, we lack jurisdiction to consider such a claim, because
the appellant has not alleged that she either requested or received a final decision
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from OPM regarding a lump-sum benefit. 3 IAF, Tab 9 at 5-9, 15, Tab 11; see
Ott v. Office of Personnel Management, 120 M.S.P.R. 453, ¶ 4 (2013) (explaining
the Board generally has jurisdiction over retirement issues only once OPM has
issued a reconsideration decision).
Accordingly, we affirm the initial decision.
NOTICE OF APPEAL RIGHTS 4
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 and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you 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 your 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.
3
Should the appellant wish to file a new appeal raising this claim, she may do so. We
express no opinion regarding the Board’s jurisdiction over, or the timeliness of, such an
appeal.
4
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
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 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.
(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. 420 (2017). If you have a representative in this case,
9
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
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
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(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 you wish to challenge the Board’s rulings on your whistleblower claims
only, excluding all other issues , 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. The court of appeals must receive your
petition for 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.
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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: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.