Filo v. United States ( 2021 )

In the United States Court of Federal Claims
No. 20-1034C
Filed: June 7, 2021
GAYLE V. FILO,
Plaintiff,
v.
THE UNITED STATES,
Defendant.
Maureen Glackin, Reinstein, Glackin & Herriott, LLC, Bowie, Maryland, for Plaintiff.
Anthony F. Schiavetti, Trial Attorney, with whom were Deborah A. Bynum, Assistant Director,
Robert E. Kirschman, Jr., Director, Commercial Litigation Branch, Brian M. Boynton, Acting
Assistant Attorney General, Civil Division, U.S. Department of Justice, Washington, D.C., for
Defendant.
MEMORANDUM OPINION AND ORDER
TAPP, Judge.
This nearly 20-year effort to secure military survivor’s benefits features three players—
two former wives of a long-serving United States Air Force (“U.S.A.F.”) veteran and the agency
charged with ensuring that survivor’s benefits are properly paid according to law. Gayle, widow
of U.S.A.F. Colonel Steven F. Filo, challenges the United States’ award of military survivorship
benefits to Col. Filo’s first spouse, Diane. Both Gayle, and the United States, each filed Motions
for Judgment on the Administrative Record. For the reasons discussed below, and despite a
multitude of errors attributable entirely to the responsible agency, the Court concludes the United
States reasonably awarded the survivorship benefits to Diane. Accordingly, the United States’
Motion for Judgment on the Administrative Record is GRANTED, and Gayle ’s Cross-Motion
is DENIED.
I. Background
United States military retirement benefits include payments to survivors of retired
military personnel under the Survivor Benefit Plan (“SBP”), 10 U.S.C. § 1447 et seq. Upon the
death of a retired service member enrolled in the SBP, a percentage of the decedent’s retirement
benefits will continue to be paid as a monthly annuity to the surviving beneficiary. (Id.). When a
service member becomes eligible to participate in the SBP, a former spouse may become eligible
for an SBP annuity if the service member elects to include the former spouse under 10 U.S.C. §
1448(b)(2). Failing such an election, the former spouse may request that the member be
“deemed” to have made an election for former spouse coverage based on an order that the
member does so in a divorce proceeding, as prescribed under 10 U.S.C. § 1450(f)(3)(A).1 The
former spouse’s request must be in writing and accompanied by a copy of the “court order,
regular on its face, which requires such election or incorporates, ratifies or approves the written
agreement of such person.” 10 U.S.C. § 1450(f)(3)(A)(ii)(I). Further, the request must be
received “within one year of the date of the court order or filing involved.” 10 U.S.C. §
1450(f)(3)(C).
It is the definition of “court order or filing” and the consequent timing of the deemed
election, that is at the heart of this dispute. In its Definitions section, the SBP defines “court
order” as:
[A] court’s final decree of divorce, dissolution, or annulment or a court
ordered, ratified, or approved property settlement incident to such a decree
(including a final decree modifying the terms of a previously issued decree
of divorce, dissolution, annulment, or legal separation, or of a court ordered,
ratified, or approved property settlement agreement incident to such
previously issued decree).
10 U.S.C. § 1447(13)(A). Importantly, if a former spouse is covered under the SBP, a survivor
annuity for a later spouse of the service member is not available. 10 U.S.C. § 1448(a)(4).
Col. Filo and his first spouse, Diane, married in 1977 and divorced on March 6, 2001.
(Administrative Record (“AR”) at 437, ECF No. 20). 2 The Judgment of Divorce issued by the
Circuit Court of Anne Arundel County, Maryland, and dated March 6, 2001, provided that Diane
would be:
[D]esignated as a survivor beneficiary at her cost (if the same is necessary to
assure the continuation of pension benefits to [Diane]) in the event of
[Colonel Filo’s] death. Counsel for [Diane] shall promptly prepare and
submit to the Court an appropriate Qualified Domestic Relations Order to
effectuate this purpose.
1
All references here to the provisions of the SBP Act are to the law applicable at the time of the
disputed deemed election in 2002. (See Defendant’s Appendix (“DA”) to Def. MJAR, ECF No.
21-1).
2 The Administrative Record is split between Exhibits 5 & 6 to ECF No. 20. However, these two
volumes are consecutively paginated, thus the Court will simply refer to the entire record by
citing “(AR __).” Dates of documents in the AR can be found in the Index to the AR, Exhibit 1
to ECF No. 20.
2
(AR 8). A little over a year later, on March 11, 2002, the same court issued an agreed Constituted
Pension Order (“CPO”), signed by counsel for both Diane and Col. Filo, requiring that:
[Colonel Filo] shall elect under 10 U.S.C. Chapter 1447 et seq. to provide a
full survivor benefit annuity to [Diane] and shall select as the base amount
the full amount of [Colonel Filo’s] monthly retired pay. The filing of this
Order with the Defense Service Financing Center (the “Service”) servicing
[Colonel Filo] by [Diane] shall be treated as a deemed election of full benefits
under the Survivor Benefit Plan.
(AR 11).
The SBP for service members is administered by the Defense Finance Accounting
Service (“DFAS”), an arm of the U.S. Department of Defense. On March 21, 2002, ten days after
the CPO was issued, Diane submitted through her attorney two letters to DFAS, both sent via
certified mail, return receipt requested, and both enclosing certified copies of the Judgment of
Divorce and CPO. (AR 454–55). One letter was sent to the Garnishment Operations Office and
covered former spouse payments from retired pay (as distinguished from SBP benefits). (AR
454). The second mailing, also dated March 21, 2002, was addressed to DFAS and expressly
stated it was a deemed election for SBP benefits. (AR 455). The Postal Service provided Diane
with return receipts for both certified mailings. (AR 456).
Since the submission of Diane’s deemed-election letter in 2002, DFAS has until recently
treated the right to Col. Filo’s SBP benefits inconsistently. The first letter to the Garnishment
Operations Office was properly entered into DFAS’s garnishment operations electronic record
system. (AR 438). Inexplicably, DFAS did not make an electronic record of Diane’s letter of
deemed election in 2002, and therefore her right to the SBP annuity was not processed and
recorded. (Id.). This was the first of many agency errors.3
Col. Filo married Gayle in 2002 and retired from the Air Force in 2009. (Id.). Upon
retirement, he elected SBP coverage for Gayle even though the Maryland Circuit Court required
that he elect SBP coverage for Diane. (Id.). Because DFAS had not recorded receipt of Diane ’s
deemed election in 2002, DFAS added Gayle as Col. Filo’s SBP annuity beneficiary upon his
retirement. (Id.).
It appears that Diane was unaware that she was not the SBP beneficiary of record until
2010 when she received correspondence from DFAS regarding Colonel Filo’s retired pay which
also showed no record of her SBP status. (AR 686). Diane then spent the next seven years
attempting to establish the effectiveness of her deemed election and thus her SBP entitlement.
(AR 686–87). In March and April of 2010, she contacted DFAS to pursue her inquiry, enclosing
3The many errors at issue in this case highlight the limits of presumed deference owed to agency
action. In some instances, agency deference can perpetuate or exacerbate injustice.
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a copy of the certified mail return receipt for her 2002 letter of deemed election. (AR 43–50).
That effort was unavailing.
In June 2010, she filed a “DoD Hotline” inquiry, again forwarding copies of her receipts.
(AR 53–70). In response, DFAS’s “Defense Hotline Completion Report” acknowledged receipt
of Diane’s March 21, 2002, letter requesting deemed coverage, but denied coverage on the
grounds that the CPO was merely a restatement of the Judgment of Divorce, and thus did not
affect the one-year deemed election timing requirement. (AR 78–84). The Report referred Diane
to the Air Force Board for Correction of Military Records (“AFBCMR” or “the Board”) for
possible relief. (AR 84).
In November 2011, Diane applied to the AFBCMR for relief, requesting that she be
named beneficiary of Colonel Filo’s SBP annuity. (AR 87). The Board denied her application in
September 2012, finding insufficient evidence to support the relief. (AR 155–58). It is not clear
from the AFBCMR decision whether Diane argued that the CPO rather than the Judgment of
Divorce was the operative order for timing of the deeming election, and the AFBCMR did not
address the issue, assuming that the date of the Judgment of Divorce was controlling. (AR 156–
57). Diane filed two subsequent requests for reconsideration with the AFBCMR, and both were
denied in 2015 without discussion, citing “no new relevant evidence.” (AR 196, 209).
Also in 2011, Diane filed suit in Maryland state court seeking the right to purchase a life
insurance policy on Col. Filo’s life to replace the financial support provided by the SBP. (AR
127–36, 417–420). She was successful in that suit, which compelled Col. Filo to submit to a
physical exam, and she received a quote on the cost of the policy. (AR 187–89). It is not clear
whether she in fact purchased the policy. (Def. Resp. at 14, ECF No. 23; Pl.’s Mot. for J. on the
AR (“Pl.’s MJAR”) at 28, ECF No. 22).
In March 2017, Diane sought U.S. Senator, Chris Van Hollen’s assistance. (AR 212).
Senator Van Hollen’s office contacted DFAS, and DFAS bafflingly and inaccurately responded
in May 2017 that Diane was not eligible for deemed-spouse coverage because they did not
receive her request until March 29, 2010. (AR 228–29). After Senator Van Hollen’s office
followed up, DFAS again inaccurately stated in a July 14, 2017 response that it had not received
Diane’s request until March 29, 2010. (AR 231).
Later in July 2017, in an email to Senator Van Hollen’s Office, DFAS corrected the date
it received Diane’s request, reporting the date to be some 15 years earlier, on March 25, 2002.
The Court is unaware of the circumstances surrounding the discovery of Diane’s 2002 request
from within DFAS records. Despite this startling factual correction, DFAS also maintained that
Diane was still ineligible because the one year period was counted from the date of the Judgment
of Divorce, thus her eligibility had expired. (AR 240) (“[Diane] is ineligible for an annuity. This
is the law, and [DFAS] must adhere to it.”).
Diane, undaunted, contacted DFAS on September 5, 2017 by email, seeking clarification
of the deeming rules. (AR 252). This time, a different DFAS employee researched the record,
concluded that Diane had in fact timely filed her election, and arranged for the record to be
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corrected to give the SBP benefits to Diane, although the email does not provide a detailed
explanation. (AR 251) (“Could you please have someone make the correction to the account and
establish the former spouse's election for SBP, as it was received timely.”). To account for the
change, DFAS collected retroactive SBP premium contributions from Diane and returned the
corresponding overpayment of premiums to Col. Filo. (AR 260–71). Upon inquiry from Col.
Filo through his attorney, DFAS explained the change in a November 30, 2017 letter, describing
the “clear and convincing evidence” that Diane’s election was timely filed. (AR 276–91).
Although he had the right to appeal the DFAS determination, he did not, and on June 25, 2018,
Col. Filo died. (AR 297).
On August 18, 2018, after Col. Filo’s death, Gayle filed a claim for the SBP annuity. (AR
438). On November 28, 2018, her claim was denied by DFAS, citing Diane’s SBP coverage.
(AR 457–58). Gayle then appealed the DFAS decision to the Defense Office of Hearings and
Appeals (“DOHA”). (AR 316–24). On December 9, 2019, DOHA issued its Appeal Decision
denying Gayle’s claim of entitlement to the SBP annuity. (AR 686–90). In its Appeal Decision,
DOHA found that DFAS’s interpretation of governing law should be “sustained unless shown to
be arbitrary, capricious or contrary to law” and is entitled to “great deference.” (AR 688). DOHA
noted that DFAS “found the CPO properly ordered a deemed election for Diane.” (Id.). DOHA
also cited DFAS’s Administrative Report to DOHA, prepared as part of the appeal, noting that
the Report “broke down the relevant language in the Judgment of Divorce that required a second
order to effectuate deemed election,” finding that conclusion reasonable. (AR 688–89; 437–41).
DOHA then found that Gayle “failed to prove by clear and convincing evidence” that she was
entitled to the SBP annuity. (AR 689). It is DOHA’s Appeal Decision that Gayle challenges in
the instant action.
II. Analysis
A. Deemed Election Requirements
Gayle asserts that DOHA’s approval of the DFAS award to Diane and consequent
disallowance of her own SBP claim was “arbitrary, capricious, contrary to law, and unsupported
by substantial evidence.” (Pl.’s MJAR at 5, 21–23). Given the plethora of inconsistencies
detailed within the administrative record, Gayle’s concern is understandable.
Gayle disputes DFAS’s interpretation of the SBP’s deeming requirements and argues that
the operative date from which to measure the one-year deadline for filing is the Judgment of
Divorce rather than that of the CPO. (Id. at 23–25). Gayle points to Section 1450(f)(3)(A)(ii)
describing the filing of “the court order, regular on its face, which requires such election or
incorporates, ratifies, or approves the written agreement of such person,” and, Gayle argues, the
CPO did not meet that definition because the CPO merely restated Col. Filo’s obligation under
the Judgment of Divorce. (Id.). Therefore, Gayle urges, since Diane ’s deemed election was filed
more than a year after the date of the Judgment of Divorce, her election was made out of time.
(Id. at 7–9, 23–25). Gayle also argues that in its review, DOHA failed to critically question
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DFAS’s reversal of its position on Diane’s eligibility after many years of denying it. (Id. at 21–
23).
The United States counters that Gayle has not shown that DOHA’s decision affirming
DFAS’s determination of Diane’s eligibility was arbitrary, capricious, contrary to law, or
unsupported by substantial evidence. (Def.’s Mot. for J. on the AR (“Def.’s MJAR”) at 16–20,
ECF No. 21). In its view, the Judgment of Divorce did not specifically require election of
benefits by Col. Filo and in fact contemplated an additional order in its requirement of “a
Qualified Domestic Relations Order to effectuate this purpose.” (Id. at 17–22). The United States
urges that the CPO expressly required that Colonel Filo “shall elect” to provide the full survivor
benefit annuity, thus meeting the statutory definition of a court order “which requires such
election” in Section 1450(f)(3)(A), and therefore it was not just a restatement of the terms of the
Judgment of Divorce. (Id.).
With respect to Gayle’s objection to DFAS’s belated and admitted change of course, the
United States responds that “none of these determinations precluded DFAS from later
determining, based on a fresh review of all the law and facts, that Diane had in fact made a
proper deemed election[.] . . . A previous mistake did not absolve DFAS of its obligation under
the law to correctly determine the legal beneficiary of Colonel Filo’s SBP, much less preclude it
from correcting that mistake.” (Def’s Resp. at 5, ECF No. 23).
The Court notes that choosing between two spouses of a military officer who are
competing for survivor benefits can present difficulties, and there is no perfect outcome in this
case. There is some guidance in the SBP statute, where Congress has chosen to provide a means
by which a former spouse may protect entitlement awarded in a state court proceeding. The
Court has reviewed the extensive record here and notes that the inconsistent treatment of Diane’s
application for a deemed election caused trouble and confusion for both Diane and Gayle.
However, DFAS has now resolved the issue of entitlement, and that decision was sustained by
DOHA in its review.
In challenging the determinations of a military board, a plaintiff must demonstrate “by
cogent and clearly convincing evidence,” Wronke v. Marsh, 787 F.2d 1569, 1576 (Fed. Cir.
1986), that the military board’s decision was “arbitrary, capricious, unsupported by substantial
evidence, or contrary to law.” Metz v. United States, 466 F.3d 991, 998 (Fed. Cir. 2006).
Moreover, “military administrators are presumed to act lawfully and in good faith like other
public officers, and the military is entitled to substantial deference in the governance of its
affairs.” Dodson v. United States, 988 F.2d 1199, 1204 (Fed. Cir. 1993). A court may set aside
an agency’s decision if the agency “entirely failed to consider an important aspect of the
problem, offered an explanation for its decision that runs counter to the evidence before the
agency, or the decision is so implausible that it could not be ascribed to a difference in view or
the product of agency expertise.” Ala. Aircraft Indus., Inc. v. United States, 586 F.3d 1372, 1375
(Fed. Cir. 2009) (quoting Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S.
29, 43 (1983)). However, “[w]hen substantial evidence supports the board’s action, and when
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that action is reasonable in light of all the evidence presented, the court will not disturb the
result.” Pope v. United States, 16 Cl. Ct. 637, 641 (1989).
In this case, DOHA found that Gayle had not established that DFAS’s interpretation of
the CPO was “plainly erroneous or inconsistent with the words of the statute.” (AR 689). DOHA
reviewed DFAS’s interpretation of the Judgment of Divorce and CPO in light of the statute’s
requirements and found it to be reasonable. (AR 687–89). It is the Court’s view that DFAS’s
award to Diane is reasonable, given the language of the SBP statute and the two state court
orders at issue here, as observed by DOHA in its review of DFAS’s decision. DOHA’s
conclusion is entitled to weight in a review by this Court and is supported by the evidence. For
that reason, the Court will not disturb the result despite its misgivings regarding the agency’s
actions since 2002.
B. Preclusion by Prior Proceedings
Gayle also asserts that Diane’s claim to the SBP benefits is barred due to principles of
accord and satisfaction, res judicata, and collateral estoppel. (Pl.’s MJAR at 27–31). She points
to Diane’s successful state court suit seeking the right to purchase life insurance coverage for
Col. Filo as an accord and satisfaction of Diane’s claim to SBP benefits. (Id. at 27–28). Gayle
also argues that the doctrines of collateral estoppel and res judicata must act here to bar DFAS’s
action reversing its prior denials of Diane’s claim after the AFBCMR had denied Diane’s
application for relief (Id. at 28–31).
With regard to Gayle’s argument that Diane’s claim is barred due to her state court suit to
secure a life insurance policy on Col. Filo’s life, the United States answers that neither the
United States nor Gayle was a party to that suit, and thus the doctrines of accord and satisfaction,
res judicata, and collateral estoppel could not act to bar the United States’ action in awarding
SBP benefits. (Def.’s Resp. at 10–13). Further, the state court matter dealt with issues arising
under the divorce action, while the question before DFAS was entitlement to SBP benefits under
federal law. (Id. at 12). Addressing Gayle’s argument that res judicata and collateral estoppel
should be applied to bar DFAS’s award of benefits to Diane after years of denial by the agency,
the United States observes that Plaintiff does not show why these “principles of preclusion”
should be extended to DFAS’s “administrative conclusions of much greater informality.” (Id. at
13). The United States also notes that the earlier determinations by DFAS including the DoD
Hotline and proceedings before the AFBCMR, were not “adversarial proceedings involving the
parties to this litigation.” (Id.). Finally, the United States argues that because Gayle did not raise
issues of preclusion during her DOHA proceeding, she has waived that issue and cannot argue
preclusion in the instant appeal from DOHA’s decision. (Id.).
The Court agrees with the United States that the doctrines of accord and satisfaction, res
judicata, and collateral estoppel do not apply to the instant matter. “Discharge of a claim by
accord and satisfaction occurs when substituted performance is accepted by the claimant as full
satisfaction of his claim.” Oasis International Waters, Inc. v. United States, 135 Fed. Cl. 230,
257–58 (2017). The affirmative defense of accord and satisfaction requires four elements,
7
among them, “a meeting of the minds of the parties.” Holland v. United States, 621 F.3d 1366,
1382 (Fed. Cir. 2010). Here there is no evidence in the record of any agreement by Diane to
relinquish her SBP claims in exchange for securing the right to purchase a life insurance policy
on Col. Filo’s life. Moreover, neither DFAS nor Gayle was a party to the life insurance matter,
and thus the state court action cannot operate to bar Diane’s SBP claims.
Gayle’s attempt to apply principles of res judicata and collateral estoppel to bar DFAS’s
ultimate award of SBP benefits to Diane is equally unsuccessful. Gayle argues that the denial of
Diane’s application by the AFBCMR should be treated as final and binding on DFAS. In support
of this, Gayle cites a case requiring “adversarial proceedings” and “finality” to apply doctrines of
preclusion, but she fails to show that those terms apply to the AFBCMR decision in this case.
(Pl.’s MJAR at 29 (citing Astoria Federal Sav. and Loan Ass’n v. Solimino, 501 U.S. 104, 107–
08 (1991)). Adding to the difficulty, both doctrines require that parties to prior actions be the
same in the case under consideration. Cunningham v. United States, 748 F.3d 1172, 1179 (Fed.
Cir. 2014); Kemper v. United States, 138 Fed. Cl. 1, 11 (2018). Gayle fails to show that condition
is satisfied. But most importantly, even accepting that DFAS’s decision to reverse its position on
Diane’s eligibility could be barred by prior administrative decisions, Gayle did not argue this
issue in her appeal to DOHA, and DOHA did not address it. Therefore, Gayle waived these
preclusion arguments. “In situations in which a plaintiff seeks relief from a military corrections
board ‘and later brings suit in court, any argument not previously raised before the corrections
board is waived.’” Exnicios v. United States, 140 Fed. Cl. 339, 364 (2018) (quoting Parks v.
United States, 127 Fed. Cl. 677, 680 (2016)); Klingenschmitt v. United States, 119 Fed. Cl. 163,
183 (2014) (citing Metz, 466 F.3d at 999) (“If a party elects to bring a claim before an
administrative agency, it must give that agency the opportunity to resolve all issues relevant to
the adjudication of that claim.”).
Gayle likewise cannot demonstrate that the doctrine of accord and satisfaction applies
because there is no evidence in the record of an agreement to that effect. Even if Gayle could
show the elements necessary to demonstrate preclusion, whether through collateral estoppel or
res judicata (which she cannot), she has waived the preclusion issue, therefore the Court will not
consider it.
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III. Conclusion
Because DOHA’s review and affirmance of the award of survivorship benefits to Diane
appear reasonable and supported by the record, the United States is entitled to Judgment on the
Administrative Record. Accordingly, the United States’ Motion for Judgment on the
Administrative Record, (ECF No. 21), is GRANTED, and Plaintiff Gayle Filo’s Cross-Motion
for Judgment on the Administrative Record, (ECF No. 22), is DENIED. The Clerk of Court shall
enter judgment accordingly.
IT IS SO ORDERED.
s/ David A. Tapp
DAVID A. TAPP, Judge
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