Ronald Moulton v. Office of Personnel Management

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
2023 MSPB 26Docket No. DE-0841-18-0053-I-1
Ronald L. Moulton,
Appellant,
v.
Office of Personnel Management,
Agency ,
and
Director of the Office of Personnel
Management, 1
Intervenor,
and
Jill Moulton, 2
Intervenor.
November 28, 2023
Ronald L. Moulton , Longmont, Colorado, pro se.
Jessica Johnson , Nicole M. Lohr , and Tynika Faison Johnson , Washington,
D.C., for the agency and for the intervenor, the Director of the Office of
Personnel Management. 3
Jill Moulton , Oro Valley, Arizona, pro se.
1
The now-former Director of the Office of Personnel Management (OPM) intervened
below.
2
Although the Board originally identified Jill Kuryvial as a potential intervenor, that
individual has referred to herself as Jill Moulton, and thus we have done so here.
3
It appears that the agency’s representatives in this matter are also appearing as
representatives for the Director of the OPM as intervenor. Petition for Review (PFR)
File, Tab 20 at 15.
2
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
OPINION AND ORDER
¶1 The Office of Personnel Management (OPM) petitions for review of the
initial decision reversing its final decision recalculating the apportionment of the
appellant’s Federal Employees’ Retirement System (FERS) benefit payable to his
former spouse. For the following reasons, we DENY OPM’s petition and
AFFIRM the initial decision as MODIFIED by this Opinion and Order, which
supplements the initial decision and still reverses OPM’s final decision.
BACKGROUND
¶2 The appellant and his former spouse (hereinafter “intervenor”) were married
on November 11, 1988. Initial Appeal File (IAF), Tab 13 at 54. On July 12,
2004, a Colorado state court entered a decree of dissolution of marriage and a
domestic relations court order awarding the intervenor a pro rata share of the
appellant’s “gross monthly annuity” under FERS, including “any benefit the
Employee earns based on special ATC [Air Traffic Controller] service.” Id.
at 53-57. Effective May 31, 2010, the appellant retired with over 25 years of
creditable service as an ATC with the Federal Aviation Administration. Id. at 9,
43, 45, 101-03. OPM thereafter granted the appellant’s application for immediate
retirement under FERS and determined that he was entitled to a basic annuity
under the statutory provision for ATCs and an annuity supplement under 5 U.S.C.
§ 8421. Id. at 9, 14, 43, 101. In December 2010, OPM notified the appellant and
the intervenor that it would pay the intervenor a pro rata share of the appellant’s
basic annuity as provided for in the court order. Id. at 5, 28-29. At that time,
OPM did not include the appellant’s FERS annuity supplement in its computation
of the intervenor’s court-ordered apportionment. Id. at 5.
3
¶3 Nearly 6 years later, OPM issued August 25, 2016 letters to the appellant
and the intervenor informing them that it had incorrectly calculated the benefit
the intervenor was receiving under the court order. IAF, Tab 13 at 24-27. OPM
indicated that the appellant’s FERS annuity supplement “is to be treated the same
way” as the FERS basic annuity for purposes of calculating the benefit paid to the
intervenor, and that the amount he receives under the FERS annuity supplement
provisions must be included in the calculation of the benefit paid to the
intervenor. Id. at 24. Thus, OPM notified the appellant and the intervenor that
the appellant’s annuity payment would be prospectively reduced, and the
intervenor’s benefit prospectively increased, due to the change in calculation, and
that OPM would also retroactively collect the additional benefits due the
intervenor back to June 1, 2010, which was the date the appellant’s FERS annuity
supplement payments began. Id. at 24-29. This retroactive treatment resulted in
an underpayment the appellant owed to the intervenor in the amount of
$24,535.30, to be deducted by OPM in installments from the appellant’s annuity.
Id. After the appellant requested reconsideration of the decision, id. at 9, 25,
OPM issued a December 12, 2017 final decision affirming its initial decision.
OPM concluded that it is required under 5 U.S.C. § 8421(c) and the terms of the
domestic relations court order to include the appellant’s FERS annuity
supplement in the computation of the court-ordered division of his FERS annuity,
and that this determination did not involve a “policy change” by OPM. 4 Id.
at 8-12. OPM noted that it would take no action to collect the $24,535.30
overpayment until after the appellant exhausted his administrative and appeal
rights, and OPM notified him of his right to appeal to the Board. Id. at 12.
4
OPM issued reconsideration decisions on February 23, 2017, and October 16, 2017,
reaching the same conclusion, but notifying the appellant of its intent to temporarily
suspend its collection efforts. IAF, Tab 13 at 15-23, Tab 30, Initial Decision (ID)
at 2-3, 5-6. OPM rescinded those decisions, and the December 12, 2017 reconsideration
decision is the subject of this appeal. IAF, Tab 13 at 9, 15-23; ID at 2-3.
4
¶4 On appeal, the appellant asserted that OPM erred in providing his former
spouse a pro rata share of his annuity supplement because the domestic relations
court order did not expressly provide for a division of his annuity supplement, as
required by 5 U.S.C. § 8467, and OPM’s decision to apportion such payments
constituted a new “legislative rule” that required notice and comment rulemaking
before implementation. IAF, Tab 17 at 17-18, Tab 29 at 4.
¶5 The appellant submitted with his appeal a February 5, 2018 Management
Advisory issued by OPM’s Office of the Inspector General (OIG), Office of Legal
& Legislative Affairs, addressing its review of OPM’s “Non-Public Decision to
Prospectively and Retroactively Re-Apportion Annuity Supplements.” IAF,
Tab 17. The Management Advisory, which resulted from a complaint OIG
received from the Federal Law Enforcement Officers Association (FLEOA), noted
that, for almost 30 years until July 2016, OPM applied the state court -ordered
marital share to the basic annuity only and not to the annuity supplement except
when the state court order expressly addressed the annuity supplement. Id. at 5,
15. OIG disagreed with OPM’s assertion—that it was required by law to effect
the above change—because the “language of the statute simply does not mandate
the conclusion that the Basic Annuity and the Annuity Supplement should be
deemed to be one and the same.” Id. at 15-16. OIG indicated that, while OPM’s
approach is one possible interpretation of the statute, section 8421(c) could also
be reasonably construed to mean that the annuity supplement is subject to division
by a state court order in divorce proceedings “in the same way” that the basic
annuity may be subject to division in those proceedings. Id. at 16. OIG noted
that OPM’s regulations, as well as court decisions, require it to perform purely
ministerial actions in carrying out a court’s instructions, and that “it is not a
‘ministerial’ function to create a division of payment that the court order does not
expressly contain.” Id. at 16-17. Rather, OIG opined that OPM created a new
rule regarding allocation of the annuity supplement that is subject to notice and
comment rulemaking and that may not be given retroactive effect. Id. at 17-20.
5
OIG recommended that OPM, among other things, cease applying the state court-
ordered marital share to annuity supplements unless the court order expressly so
provides, and make whole all annuitants affected by OPM’s re-interpretation of
the statute. Id. at 21-23.
¶6 OPM responded to the Board appeal by asserting that the unambiguous
language of 5 U.S.C. § 8421(c) required it to apportion the annuity supplement
“in the same way” as the basic annuity for purposes of computing a court-ordered
division of a FERS retirement benefit. IAF, Tab 13 at 10, Tab 27 at 13-17.
Alternatively, OPM asserted that if the statute were ambiguous, its interpretation
was entitled to deference under Chevron, U.S.A., Inc. v. Natural Resources
Defense Council, Inc., 467 U.S. 837 (1984). IAF, Tab 13 at 10, Tab 27 at 13-17.
The appellant withdrew his request for a hearing. IAF, Tab 11 at 1.
¶7 After the close of the record, the administrative judge reversed OPM’s final
decision. 5 IAF, Tab 30, Initial Decision (ID) at 3. He found that 5 U.S.C.
§ 8421(c) was not unambiguous, as OPM alleged, but instead was subject to
multiple interpretations. ID at 10-11. He further found that OPM’s regulations,
purportedly requiring it to apportion the appellant’s annuity supplement, were not
entitled to deference under Chevron because they did not directly address the
purpose of section 8421(c) or otherwise interpret that section. ID at 11-13. The
fact that OPM’s regulations do not differentiate between a basic annuity and an
annuity supplement “could just as easily reflect the agency’s conclusion that the
annuity supplement was” a Social Security benefit and thus presumptively not
allocable between an employee and a former spouse. ID at 13. The
administrative judge therefore read section 8421(c) to require OPM to divide an
annuity supplement between a FERS employee and his or her former spouse only
if the court order expressly provided for such division, as required by 5 U.S.C.
§ 8467. ID at 16. After reviewing the terms of the court order, the administrative
5
The administrative judge granted the Director of OPM’s request to intervene as a
matter of right under 5 U.S.C. § 7701(d) and permitted the appellant’s former spouse to
intervene in this matter. IAF, Tabs 26, 28.
6
judge determined that it did not expressly provide for the division of the
appellant’s annuity supplement. ID at 16-21. He therefore found that the
appellant proved by preponderant evidence that OPM erred in recalculating the
intervenor’s share of the appellant’s FERS annuity. ID at 21. The administrative
judge ordered OPM to rescind its final decision and refund all previously
apportioned annuity supplement amounts to the appellant. ID at 22. The
administrative judge declined to consider the appellant’s claims of harmful error,
age discrimination, and reprisal for protected disclosures and activity, as well as
the appellant’s request for interim relief. ID at 21-22.
¶8 OPM has filed a timely petition for review arguing that the administrative
judge erred in reversing its reconsideration decision. Petition for Review (PFR)
File, Tab 8. OPM reasserts that section 8421(c) unambiguously requires it to
apportion the annuity supplement in the same way it apportions the appellant’s
basic annuity and, alternatively, that its interpretation of the statute as
establishing that requirement is entitled to deference. Id. at 8-19. The appellant
has filed a response to OPM’s petition for review. PFR File, Tab 9.
¶9 After the parties submitted their pleadings, the Acting Clerk of the Board
issued an Order directing OPM to clarify its position regarding how it categorizes
a supplemental annuity and to submit relevant documents, including specifically
identified policy statements addressing its approach to apportioning supplemental
annuities. PFR File, Tab 13. OPM and the Director of OPM submitted a pleading
that contends, among other things, that its regulations support what it claims are
the “clear, unambiguous provisions of 5 U.S.C. § 8421(c).” PFR File, Tab 20
at 6-11. In a separate submission, the Director of OPM asserts that the portion of
the Acting Clerk’s Order seeking documents was improper and not in accordance
with the Board’s regulations, and moves for the Board to vacate that portion of
7
the Order. 6 PFR File, Tab 21 at 5-7. The appellant has filed a response in which
he also reasserts his age discrimination claim. 7 PFR File, Tab 23.
ANALYSIS
¶10 OPM asserts on review that 5 U.S.C. § 8421(c) is clear and the
administrative judge improperly read ambiguity into the statute by looking
beyond its text. PFR File, Tab 8 at 8-13. OPM further asserts that, if the Board
must look beyond the plain language of the statute, the placement of
section 8421(c) within the FERS “Basic Annuity” subchapter shows that Congress
intended for the basic annuity and the annuity supplement to be treated as
indivisible components of the entire annuity. Id. at 9. OPM also claims that, for
FERS benefits to replicate Civil Service Retirement System (CSRS) benefits as
Congress intended, OPM must treat the basic annuity and the annuity supplement
as a unitary entitlement. Id. at 15-16.
¶11 An employee who is separated from the service, except by removal for
cause on charges of misconduct or delinquency, after completing 25 years of
service as an ATC or after becoming 50 years of age and completing 20 years of
service as an ATC, “is entitled to an annuity.” 5 U.S.C. § 8412(e). Under
5 U.S.C. § 8415(a), entitled “Computation of basic annuity,” “the annuity” of an
6
The Board may order “any Federal agency” to comply with “any order” issued by the
Board under its authority. 5 U.S.C. § 1204(a)(1)-(2). In any case that is reviewed, the
Board may require that briefs be filed and take any other action necessary for final
disposition of the case. 5 C.F.R. § 1201.117(a). OPM was afforded an opportunity to
provide evidence to support its final decision in this case but chose not to do so. Given
our resolution of this appeal on the existing record, the motion of the Director of OPM
to vacate a portion of the Acting Clerk’s Order is now moot.
7
The appellant asserts that, “I believe that the OPM has discriminated against me and
other retired annuitants based on our age . . . .” PFR File, Tab 23 at 5. An appellant
may prove a claim of age discrimination by showing that such discrimination was a
motivating factor in the contested action. Pridgen v. Office of Management and Budget,
2022 MSPB 31, ¶ 21. There are various methods of proving such a claim. Id.,
¶¶ 23-24. Having reviewed the appellant’s arguments on this issue, e.g., IAF, Tab 1
at 5, Tab 29 at 5, we find that he has not met his burden of proving by preponderant
evidence that age was a motivating factor in OPM’s final decision in this case.
8
employee retiring under subchapter II of chapter 84, Title 5, United States Code,
is 1% of that individual’s average pay multiplied by such individual’s total
service. For individuals with ATC service like the appellant, the computation
involves a higher percentage multiplied by total service. 5 U.S.C. § 8415(f). In
general, an individual shall, if and while entitled to “an annuity” under 5 U.S.C.
§ 8412(e), “also be entitled to an annuity supplement under this section.”
5 U.S.C. § 8421(a)(1). The annuity supplement is designed to replicate the Social
Security benefit (based on Federal civilian service) available at age 62 for those
employees retiring earlier, and is subject to the same conditions as payment of the
Social Security benefit. Henke v. Office of Personnel Management, 48 M.S.P.R.
222, 227 (1991). The annuity supplement, therefore, ceases no later than the last
day of the month in which such individual attains age 62. 5 U.S.C. § 8421(a)(3)
(B). Thus, the formula for calculating the annuity supplement incorporates the
amount of old-age insurance benefit that would be payable under the Social
Security Act upon attaining age 62. 5 U.S.C. § 8421(b).
¶12 When a Federal employee and the employee’s spouse divorce, additional
statutes come into play. Section 8467 of Title 5, United States Code, addresses
“Court orders.” Under 5 U.S.C. § 8467(a)(1), payments under 5 U.S.C.
chapter 84 that would otherwise be made to an annuitant based on the service of
that individual shall be paid to another person “if and to the extent expressly
provided for in the terms of . . . 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.” Section 8421 is entitled “Annuity supplement.” Under 5 U.S.C.
§ 8421(c), “[a]n amount under this section shall, for purposes of section 8467, be
treated in the same way as an amount computed under section 8415.” These two
statutes are at issue in this case.
¶13 The interpretation of a statute begins with the language of the statute itself.
Semenov v. Department of Veterans Affairs, 2023 MSPB 16, ¶ 16. If the language
9
provides a clear answer, the inquiry ends and the plain meaning of the statute is
regarded as conclusive absent a clearly expressed legislative intent to the
contrary. Id. Further, the whole of the statute should be considered in
determining its meaning. Johnson v. Department of Veterans Affairs, 91 M.S.P.R.
405, 408 (2002). The provisions of a statute should be read in harmony, leaving
no provision inoperative or superfluous or redundant or contradictory. Id. A
section of a statute should not be read in isolation from the context of the whole
Act, and the Board, in interpreting legislation, must not be guided by a single
sentence or part of a sentence, but should look to the provisions of the whole law
and to its object and policy. Joyce v. Department of the Air Force, 83 M.S.P.R.
666, ¶ 14 (1999), overruled on other grounds by Sacco v. Department of Justice ,
90 M.S.P.R. 37 (2001). Reading the relevant provisions as a whole, we find that
the plain language of the applicable statutes provides a clear answer and there is
no clearly expressed legislative intent to the contrary.
¶14 We begin by considering how an amount “computed under section 8415” is
“treated,” so as to then determine how an annuity supplement must also be
treated, “in the same way,” for purposes of section 8467. 8 See 5 U.S.C.
§ 8421(c). As set forth above, 5 U.S.C. § 8415 addresses the manner in which a
basic annuity is computed, and thereby becomes a “[p]ayment under this chapter
which would otherwise be made to an employee . . . .” 5 U.S.C. § 8467(a). As a
“[p]ayment under this chapter,” the basic annuity shall be paid (in whole or in
part) to another person “if and to the extent expressly provided for” in the terms
of, among other things, any court decree, court order, or court-approved property
settlement agreement. 5 U.S.C. § 8467(a)(1). An amount under section 8421,
i.e., an annuity supplement, shall be treated in the same way. That is, an amount
8
We interpret the “for purposes of section 8467” language of section 8421(c) as simply
meaning “when applying section 8467.” See In re Hill, No. 06-50972, 2007 WL
2021897 at *12 (Bankr. E.D. Tenn. July 6, 2007) (holding, under a straightforward
reading of a statute, that the phrase “for purposes of paragraph (5)” simply means
“when applying paragraph (5)”). Thus, an annuity supplement amount shall, when
applying section 8467, be treated in the same way as a basic annuity amount.
10
computed under 5 U.S.C. § 8421(b) is a payment under chapter 84 that would
otherwise be made to an employee pursuant to 5 U.S.C. § 8421(a). See 5 U.S.C.
§ 8467(a). To be treated in the same way when applying section 8467, that
payment shall be paid to another person “if and to the extent expressly provided
for in the terms of,” among other things, any court decree, court order, or
court-approved property settlement agreement. A basic annuity amount computed
under section 8415 shall be paid to another person only when the “expressly
provided for” requirement in section 8467(a) is met. Similarly, an annuity
supplement amount under section 8421 shall be paid to another person only when
it, too, meets the “expressly provided for” requirement of section 8467(a).
¶15 OPM’s interpretation to the contrary would improperly read section 8421(c)
in isolation from section 8467(a), see Joyce, 83 M.S.P.R. 666, ¶ 14, render the
“expressly provided for” language of section 8467(a) inoperative or superfluous,
and not read the statutory provisions as a whole and in harmony. In this regard,
we note that Congress could have used different language to reach the result OPM
proposes in this case. For example, Congress could have specified in
section 8467(a) that, “except as provided for in 5 U.S.C. § 8421(c),” payments
under this chapter which would otherwise be made to an employee shall be paid
to another person if and to the extent expressly provided for in the terms of a
court decree, court order, or court-approved property settlement agreement.
There is, however, no such proviso language in section 8467(a), and the Board
will not supply such language in interpreting the statute. See, e.g., Crockett v.
Office of Personnel Management, 783 F.2d 193, 195 (Fed. Cir. 1986) (rejecting a
statutory interpretation that would add to statutory language requirements that are
not specified or reasonably implied in the statute); Acting Special Counsel v. U.S.
Customs Service, 31 M.S.P.R. 342, 347 (1986) (declining to read an exclusion
into a statute). In fact, section 8467(a) applies to “[p]ayments under this
chapter . . . based on service of that individual,” and an annuity supplement
qualifies under that broad language. See 5 U.S.C. § 8421(b)(3)(A) (basing the
11
amount of an annuity supplement in part on a fraction that includes “the
annuitant’s total years of service”). Alternatively, Congress could have provided
in section 8421(c) or elsewhere that an amount under section 8421 shall, for
purposes of section 8467, be “considered a part” of the payment made to another
person under section 8467(a), shall be “included” in the amount of the payment
made to another person under that section, or shall “extend to” such an amount.
However, the statute does not so provide. Instead, it provides that such an
amount shall be “treated in the same way” as an amount computed under 5 U.S.C.
§ 8415. As set forth above, that means that it shall be paid to another person
when the “expressly provided for” requirement is met.
¶16 Congress knew how to speak more directly to this issue in a separate section
of the same public law that enacted sections 8421 and 8467. When it enacted the
FERS provisions at issue in this appeal, Congress also addressed how to treat the
annuity supplement for former spouses of employees of the Central Intelligence
Agency (CIA). Section 506 of the Federal Employees’ Retirement System
(FERS) Act of 1986, Pub. L. No. 99-335, 1986 U.S.C.C.A.N. (100 Stat.) 514,
624, amended the Central Intelligence Agency Retirement Act of 1964 by
providing for the participation of certain CIA employees in the FERS. In
section 304(g) of the amendment, covering “Special Rules for Former Spouses,”
Congress provided that “[t]he entitlement of a former spouse to a portion of an
annuity of a retired officer or employee of the Agency under this section shall
extend to any supplementary annuity payment that such officer or employee is
entitled to receive under section 8421 of title 5, United States Code.” 9 Id.
at 626-27. The legislative history confirms that section 304(g) “provides that the
entitlement of a retired CIA FERS employee’s former spouse to a portion of the
employee’s annuity extends to any annuity supplement the employee receives
9
The current version of the applicable statutes similarly indicates that an annuity
supplement is to be included in the “benefits payable” to an employee for purposes of
determining a former spouse’s share of those benefits. See 50 U.S.C. § 2154(c)(1)-(2).
12
under section 8421 of title 5, United States Code (as added by section 101 of the
conference agreement).” H.R. Rep. No. 99-606, at 157-58 (1986) (Conf. Rep.).
¶17 When Congress includes particular language in one section of a statute but
omits it in another section of the same Act, it is generally presumed that Congress
acts intentionally and purposely in the disparate inclusion or exclusion. Russello
v. United States, 464 U.S. 16, 23 (1983); see Hyundai Steel Co. v. United States,
19 F.4th 1346, 1353 (Fed. Cir. 2021). Here, the fact that Congress specifically
provided that annuity supplements shall be included in the benefits payable to a
former spouse of a CIA employee shows that it decided to do so for those
individuals but chose not to do so for others, see, e.g., Weed v. Social Security
Administration, 112 M.S.P.R. 323, ¶18 (2009); Ellefson v. Department of the
Army, 98 M.S.P.R. 191, ¶ 10 (2005), instead allowing for court decrees, court
orders, or court-approved property settlement agreements to resolve that question
under 5 U.S.C. § 8467(a) and 5 U.S.C. § 8421(c).
¶18 OPM asserts that, if the Board must look beyond the plain language of the
applicable statutes, the placement of section 8421(c) within the FERS “Basic
Annuity” subchapter shows that Congress intended for the basic annuity and the
annuity supplement to be treated as indivisible components of the entire annuity.
PFR File, Tab 8 at 9. Although the title and headings of a statute may be
permissible indicators of meaning and can aid in resolving an ambiguity in the
legislation’s text, a wise rule of statutory interpretation is that the title of a statute
and the heading of a section cannot limit the plain meaning of the text. Maloney
v. Executive Office of the President, 2022 MSPB 26, ¶ 11 n.8. As explained
above, the plain meaning of the statute does not support OPM’s interpretation.
Moreover, although OPM claims that it must treat the basic annuity and the
annuity supplement as a unitary entitlement to replicate CSRS benefits, such
considerations do not outweigh the statutory text.
¶19 Even if the applicable statutory provisions could be viewed as ambiguous,
i.e., as susceptible of differing, reasonable interpretations, see Pastor v.
13
Department of Veterans Affairs, 87 M.S.P.R. 609, ¶ 18 (2001), we agree with the
reasoning set forth by the administrative judge that OPM’s regulations and
internal instructions are not entitled to deference. As the administrative judge
found, OPM’s regulations, among other things, address other types of annuities
but not the annuity supplement, either in the regulations themselves or in the
rulemaking process implementing those regulations. ID at 11-13. In any event,
the Board will decline to give effect to OPM’s interpretation of a regulation
when, as here, there are compelling reasons to conclude that such interpretation is
erroneous, unreasonable, or contrary to the law that it purports to interpret. Evans
v. Office of Personnel Management, 59 M.S.P.R. 94, 104 (1993). We also agree
with the administrative judge’s determination that OPM’s internal instructions,
which OPM chose not to submit into the record, are not persuasive. ID at 14-16.
As the administrative judge explained, ID at 15-16, those instructions were not
issued under formal notice-and-comment rulemaking procedures, and are
therefore not entitled to the deference given to regulations, but may be entitled to
some weight based on their formality and persuasiveness and the consistency of
the agency’s position. See Brandt v. Department of the Air Force, 103 M.S.P.R.
671, ¶ 14 (2006). However, OPM did not submit those documents into the record,
even after being ordered to do so by the Acting Clerk of the Board. PFR File,
Tab 13 at 3. Information relating to that previous interpretation is essential to
evaluating the persuasiveness of OPM’s current guidance.
¶20 Finally, while this appeal was pending before the Board, the U.S. Court of
Appeals for the District of Columbia Circuit issued a decision that addressed, in a
different context, OPM’s apportioning of the annuity supplement in these types of
cases. In Federal Law Enforcement Officers Association v. Ahuja , 62 F.4th 551,
554 (D.C. Cir. 2023), FLEOA brought an action against OPM in district court
claiming that its apportioning method violated the Administrative Procedure Act.
The circuit court vacated the district court’s orders and remanded with
instructions to dismiss the case for lack of jurisdiction. Id. at 555. In so doing,
14
the court held that the Civil Service Reform Act and the FERS Act precluded
district court review of FLEOA’s claims because judicial review of OPM’s
method of apportioning retirement benefits was available only in the U.S. Court
of Appeals for the Federal Circuit following administrative exhaustion before the
Board. Id. at 557-60, 567. We therefore find that this court decision does not
require a different result in this case.
¶21 Having determined that apportionment of an annuity supplement must be
expressly provided for under 5 U.S.C. § 8467(a), we agree with the administrative
judge that the specific terms of the court order in this case do not expressly
provide for a division of the appellant’s annuity supplement. ID at 16-21; see
Thomas v. Office of Personnel Management, 46 M.S.P.R. 651, 654 (1991)
(describing a provision as “express” when it is “clear; definite; explicit; plain;
direct; unmistakable; not dubious or ambiguous”); cf., e.g., Hayward v. Office of
Personnel Management, 578 F.3d 1337, 1345 (Fed. Cir. 2009) (holding, in
interpreting similar “expressly provided for” language, that the intent to award a
survivor annuity “must be clear”); Davenport v. Office of Personnel Management,
62 F.3d 1384, 1387 (Fed. Cir. 1995) (“The statute requires that the pertinent court
order or property settlement ‘expressly’ provide for a survivor benefit, so as to
ensure that OPM will not contrive a disposition that the state court did not
contemplate.”).
¶22 Accordingly, we find that OPM improperly included the appellant’s FERS
annuity supplement in its computation of the court-ordered division of his FERS
annuity. OPM’s reconsideration decision is, therefore, reversed.
ORDER
¶23 We ORDER OPM to rescind its December 12, 2017 final decision, stop
apportioning the annuity supplement, and refund all previously apportioned
annuity supplement amounts to the appellant. OPM must complete this action no
later than 20 days after the date of this decision.
15
¶24 We also ORDER OPM to tell the appellant promptly in writing when it
believes it has fully carried out the Board’s Order and to describe the actions it
took to carry out the Board’s Order. We ORDER the appellant to provide all
necessary information OPM requests to help it carry out the Board’s Order. The
appellant, if not notified, should ask OPM about its progress. See 5 C.F.R.
§ 1201.181(b).
¶25 No later than 30 days after OPM tells the appellant it has fully carried out
the Board’s Order, the appellant may file a petition for enforcement with the
office that issued the initial decision on this appeal if the appellant believes that
OPM did not fully carry out the Board’s Order. The petition should contain
specific reasons why the appellant believes OPM has not fully carried out the
Board’s Order and should include the dates and results of any communications
with OPM. See 5 C.F.R. § 1201.182(a).
¶26 This is the final decision of the Merit Systems Protection Board in this
appeal. Title 5 of the Code of Federal Regulations, section 1201.113 (5 C.F.R.
§ 1201.113).
NOTICE TO THE APPELLANT REGARDING
YOUR RIGHT TO REQUEST
ATTORNEY FEES AND COSTS
You may be entitled to be paid by the agency for your reasonable attorney
fees and costs. To be paid, you must meet the requirements set out at Title 5 of
the United States Code (U.S.C.), sections 7701(g), 1221(g), 1214(g) or 3330c(b);
or 38 U.S.C. § 4324(c)(4). The regulations may be found at 5 C.F.R.
§§ 1201.201, 1201.202, and 1201.203. If you believe you meet these
requirements, you must file a motion for attorney fees WITHIN 60 CALENDAR
DAYS OF THE DATE OF THIS DECISION. You must file your attorney fees
motion with the office that issued the initial decision on your appeal.
16
NOTICE OF APPEAL RIGHTS 10
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.
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:
10
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.
17
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,
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
18
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
(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
19
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. 11 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.
11
The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction 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.
20
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 .
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.