Parks v. Office of Personnel Management

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
JUNE PARKS,
Petitioner,
v.
OFFICE OF PERSONNEL MANAGEMENT,
Respondent.
______________________
2013-3032
______________________
Petition for review of the Merit Systems Protection
Board in No. SF0831120564-I-1
______________________
Decided: June 11, 2013
______________________
JUNE PARKS, of Oceanside, California, pro se.
RUSSELL J. UPTON, Trial Attorney, Commercial Litiga-
tion Branch, Civil Division, United States Department of
Justice, of Washington, DC, for respondent. With him on
the brief were STUART F. DELERY, Acting Assistant Attor-
ney General, JEANNE E. DAVIDSON, Director, REGINALD T.
BLADES, Jr., and PATRICIA M. MCCARTHY, Assistant
Directors.
______________________
Before NEWMAN, PLAGER, and TARANTO, Circuit Judges.
2 JUNE PARKS v. OPM
PER CURIAM.
DECISION
June Parks petitions for review of a final decision of
the Merit Systems Protection Board, which affirmed the
finding by the Office of Personnel Management (OPM)
that she was not entitled to a former-spouse survivor
annuity under the Civil Service Retirement System
(CSRS). We affirm.
BACKGROUND
June and Willie Lee Parks married each other in
1964. In January 1998, during their marriage, Mr. Parks
retired from the federal civil service, eligible for CSRS
post-employment annuity benefits. At the time, he elect-
ed to reduce the annuity he would receive in order to
provide for a survivor annuity that would be paid to Ms.
Parks if he died.
The couple divorced on December 12, 2005. The
judgment that dissolved their marriage, issued by the
Superior Court of California, County of San Diego, or-
dered a property division pursuant to an attached settle-
ment agreement signed by both parties. The 2005
settlement agreement sought “to effect a complete and
final settlement” of “[a]ll of the respective property
right[s] of the parties” and “[t]he obligations of each party
for the support of the other.” Among other provisions, the
2005 settlement agreement specified that the “Husband’s
gross monthly income is $4,291.00 from his retirement
and social security” and required that the “Husband shall
pay spousal support to the Wife in the amount of
$1,354.00 per month.” The 2005 settlement agreement
never refers to the CSRS survivor annuity.
On January 17, 2006, Mr. Parks wrote to OPM to re-
quest the cancellation of Ms. Parks’s survivor annuity,
thereby raising the amount of his own annuity benefits.
OPM made the adjustments as of January 1, 2006.
JUNE PARKS v. OPM 3
On July 16, 2008, the Superior Court of California,
County of San Diego, issued a Qualified Domestic Rela-
tions Order that specifically addressed Mr. Parks’s CSRS
benefits. The 2008 order assigned to Ms. Parks 36% of
Mr. Parks’s monthly pension benefits, while also provid-
ing that, should he predecease her, she would be “eligible
to receive a post-retirement surviving spousal annuity” in
“accordance with the election made by [Mr. Parks] on the
date of his retirement.” The 2008 order made no mention
of Mr. Parks’s 2006 cancellation of the survivor annuity.
Mr. Parks died on November 6, 2011. Six weeks later,
on December 19, 2011, Ms. Parks applied to OPM for a
CSRS survivor annuity. OPM issued an initial decision
that denied her application in February 2012. Ms. Parks
requested reconsideration, and on May 11, 2012, OPM
issued a final decision that affirmed its initial denial. Ms.
Parks then appealed to the MSPB, which, on August 31,
2012, affirmed the OPM decision that she was not entitled
to a former-spouse survivor annuity. Parks v. Office of
Pers. Mgmt., No. 12-564, slip op. at 5-6 (M.S.P.B. Aug. 31,
2012). The Board found that the first order dividing the
Parks’s marital property—the 2005 divorce judgment,
with its attached settlement agreement—did not entitle
her to a survivor annuity and that the 2008 order was
ineffective for CSRS purposes under 5 U.S.C. § 8341(h)(4)
because it was a modification of the first judgment divid-
ing marital property. Parks, supra, at 2, 5.
Ms. Parks timely petitioned for review by this court
under 5 U.S.C. § 7703. We have jurisdiction under 28
U.S.C. § 1295(a)(9).
DISCUSSION
This court’s jurisdiction to review decisions of the
MSPB is limited by statute. Specifically, this court must
affirm the Board’s decision in this case unless it finds the
decision to be arbitrary, capricious, an abuse of discretion,
or otherwise not in accordance with law; obtained without
4 JUNE PARKS v. OPM
procedures required by law, rule, or regulation having
been followed; or unsupported by substantial evidence. 5
U.S.C. § 7703(c); Carreon v. Office of Pers. Mgmt., 321
F.3d 1128, 1130 (Fed. Cir. 2003). We find none of these
defects.
The Civil Service Retirement Spouse Equity Act of
1984, Pub. L. No. 98-615, 98 Stat. 3195, 3200-01, which is
codified at 5 U.S.C. § 8341, extended eligibility for survi-
vor benefits to former spouses of federal employees if
certain conditions are met. Under Section 8341(h)(1),
a former spouse of a deceased employee [or] annu-
itant ... is entitled to a survivor annuity under
this subsection, if and to the extent expressly pro-
vided for in … the terms of any decree of divorce
or annulment or any court order or court-approved
property settlement agreement incident to such de-
cree.
(emphasis added). The statute further provides:
For purposes of this subchapter, a modification in
a decree, order, agreement, or election referred to
in paragraph (1) of this subsection shall not be ef-
fective–
(A) if such modification is made after the
retirement or death of the employee or
Member concerned, and
(B) to the extent that such modification
involves an annuity under this subsection.
5 U.S.C. § 8341(h)(4).
In this case, the 2005 settlement agreement, by
failing to provide expressly for a survivor annuity, did not
meet the requirements of 5 U.S.C. § 8341(h)(1). The
parties intended the 2005 settlement agreement to effect
a complete and final settlement of all their respective
property rights. The 2005 settlement agreement divided
JUNE PARKS v. OPM 5
various specified items of marital property and provided
for a monthly payment to Ms. Parks of a portion of Mr.
Parks’s gross monthly income, including his retirement
benefits, yet made no mention of a survivor annuity. It
neither provided for a survivor annuity nor reserved
disposition of the issue for later decision.
The subsequent 2008 order, while expressly providing
for a survivor annuity, constituted a modification of the
initial 2005 settlement agreement. 5 U.S.C. § 8341(h)(4)
declares such a modification to be ineffective for present
purposes. Applying the statutory provision, this court has
recognized that “a decree that divides marital property,
including retirement benefits, without expressly providing
for, or reserving disposition of, a survivor annuity cannot
be altered after the employee’s death [or retirement] by a
court order that purports to award such an annuity.”
Vaccaro v. Office Of Pers. Mgmt., 262 F.3d 1280, 1287
(Fed. Cir. 2001); see Rafferty v. Office of Pers. Mgmt., 407
F.3d 1317, 1322 (Fed. Cir. 2005) (“[A] first order dividing
marital property yet silent with respect to a survivor
annuity cannot be altered by a subsequent order provid-
ing a survivor annuity.”). The Board therefore correctly
held that OPM, in denying the annuity to Ms. Parks,
acted as required by the statute (and implementing
regulations, see 5 C.F.R. §§ 838.806(b)(2), 838.806(f)(1)).
One might well try to parse the initial 2005 settlement
agreement and the 2008 order to determine just how
different they are; but where, as here, there is a relevant
property allocation and no reservation, that is precisely
the analysis that Congress enacted the statutory provi-
sion to ensure OPM would not do. See Vaccaro, 262 F.3d
at 1291 (Dyk, J., dissenting) (quoting congressional com-
mittee report).
6 JUNE PARKS v. OPM
CONCLUSION
For the foregoing reasons, we affirm the decision of
the Board sustaining OPM’s denial of Ms. Parks’s applica-
tion for a survivor annuity.
No costs.
AFFIRMED