Couvillion v. Office of Personnel Management , 129 F. App'x 613 ( 2005 )

NOTE: Pursuant to Fed. Cir. R. 47.6, this disposition
is not citable as precedent. It is a public record.
United States Court of Appeals for the Federal Circuit
04-3453
MICHAEL J. COUVILLION, SR.,
Petitioner,
v.
OFFICE OF PERSONNEL MANAGEMENT,
Respondent.
___________________________
DECIDED: April 26, 2005
___________________________
Before NEWMAN, SCHALL, and DYK, Circuit Judges.
DYK, Circuit Judge.
Michael J. Couvillion, Sr. (“Couvillion”) appeals from the final decision of the Merit
Systems Protection Board (“Board”), Couvillion v. Office of Pers. Mgmt., No. DA-0831-
03-0160-I-1 (M.S.P.B. Aug. 12, 2004), denying Couvillion’s petition for review of the
Board’s initial decision, Couvillion v. Office of Pers. Mgmt., No. DA-0831-03-0160-I-1
(M.S.P.B. Sept. 26, 2003). The Board held that a Qualified Domestic Relations Order
(“QDRO”), which provided for payment of a portion of Couvillion’s retirement benefits to
his former spouse’s estate (should she predecease him), was “a proper QDRO to be
processed by OPM.” Id., slip op. at 7. We affirm.
BACKGROUND
Couvillion is a federal employee with a potential annuity under the Civil Service
Retirement System. Couvillion and his former spouse, Beverly Couvillion, were
divorced on December 16, 1996, in Louisiana state court. Couvillion and his former
spouse entered into a consent judgment that provided for the division of their respective
pensions pursuant to QDROs to be later submitted to the state court. The QDRO
dividing Couvillion’s future federal annuity was entered on November 29, 1999. The
QDRO reads in pertinent part:
Pursuant to 5 CFR 838.1012(b)(3), if BEVERLY BREWER COUVILLION
dies before MICHAEL JUDE COUVILLION, SR. the Untied [sic] States
Office of Personnel Management is directed to pay BEVERLY BREWER
COUVILLION’s share of MICHAEL JUDE COUVILLION, SR.’s civil service
retirement benefits to BEVERLY BREWER COUVILLION’s estate.
Couvillion v. Couvillion, 492-386 (La. 24th Jud. Dist. 11/29/99). Couvillion appealed
various aspects of the QDRO to a Louisiana appeals court, including the above-quoted
section. Although the appeals court ordered an amendment to a different part of the
QDRO, it rejected Couvillion’s challenge to the provisions of the QDRO ordering
payment to his former wife’s estate. Couvillion petitioned the Louisiana Supreme Court
for review, but that court denied review.
The consent judgment, QDRO, and amendment to the QDRO were subsequently
received by the Office of Personnel Management (“OPM”). OPM regulations require
that OPM determine whether state court decrees are “acceptable for processing.” 5
C.F.R. § 838.222(c) (2005). If OPM determines that a decree is “acceptable for
processing,” OPM notifies both the potential retiree and the former spouse that the
order is “acceptable for processing” and that OPM must comply with the order. Id.OPM regulations also provide a method for challenging OPM’s determination pursuant
to that provision. Id.; see also 5 C.F.R. § 838.1009 (2005). OPM notified Couvillion that
it would honor the QDRO. Couvillion requested that OPM reconsider its decision, but
04-3453 2
was informed that OPM considered the QDRO “acceptable for processing.” Couvillion
then appealed OPM’s decision to the Board, which affirmed. The initial decision of the
Board became final on August 12, 2004, when the Board denied Couvillion’s petition for
review. We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(9).1
DISCUSSION
Our review of the Board is limited. The Board’s decision must be affirmed unless
it is found to be arbitrary, capricious, an abuse of discretion, or otherwise not in
accordance with law; obtained without procedures required by law, rule or regulation; or
unsupported by substantial evidence. 5 U.S.C. § 7703(c) (2000); Yates v. Merit Sys.
Prot. Bd., 145 F.3d 1480, 1483 (Fed. Cir. 1998).
OPM has promulgated regulations regarding the division of annuities between an
employee and former spouse, including situations where the former spouse
predeceases the employee:
(b) Except as otherwise provided in this subpart, OPM will honor a court
order acceptable for processing or an amended court order acceptable for
processing that directs OPM to pay, after the death of the former spouse,
the former spouse’s share of the employee annuity to— . . .
(3) the estate of the former spouse.
5 C.F.R. § 838.237(b) (2005); see 5 C.F.R. § 838.1012(b) (2005).
1
We requested supplemental briefing on whether this case presented an
Article III case or controversy in light of the fact that Mr. Couvillion has not retired and
his wife has not died. Both parties joined in urging that the requirements of Article III
were satisfied. There is a regulatory deadline of 30 days to appeal a decision of OPM
to the Board. 5 C.F.R. § 1201.22 (2005). A final decision of the Board must be
appealed to this court within 60 days of receipt of notice of the Board’s final decision. 5
U.S.C. § 7703 (2000). The 60-day period is “statutory, mandatory, [and] jurisdictional.”
Monzo v. Dep’t of Transp., Fed. Aviation Admin., 735 F.2d 1335, 1336 (Fed. Cir. 1984).
Thus, if we were to decline to adjudicate the controversy, Couvillion would be forever
barred from appealing the Board’s decision to this court. Under these circumstances,
we think the case is ripe for review.
04-3453 3
Couvillion first argues that there is no statutory basis for 5 C.F.R. §§ 838.237(b)
and 838.1012(b). 5 U.S.C. § 8345(j)(1) provides for the division of federal benefits
between former spouses. It states in pertinent part:
Payments under this subchapter which would otherwise be made to an
employee, Member or annuitant based on service of that individual shall
be paid (in whole or in part) by the Office to another person if and to the
extent expressly provided for in the terms of—
(A) 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.
We have previously held that this section “authorizes [OPM] to comply with an
appropriate court decree of divorce or property settlement of an employee who is
entitled to payments pursuant to the Civil Service Retirement System.” Rosato v. Office
of Pers. Mgmt., 165 F.3d 1377, 1378 (Fed. Cir. 1999) (alteration in original) (quotations
omitted). Couvillion also argues that the regulations conflict with 5 U.S.C. § 8345(e)
because that section mentions estates, but does not provide for payments to an estate
in the present situation.2 Section 8345(e) does not in any way suggest that the
regulations are unauthorized. Therefore, 5 C.F.R. §§ 838.237(b) and 838.1012(b) are
not invalid.
Second, Couvillion argues that the original state court decree should
govern and that OPM is precluded from recognizing orders issued after the date of the
original decree, such as the QDRO involved here. The regulations specifically provide
that “[w]here there are two or more court orders relating to the same former spouse, the
2
5 U.S.C. § 8345(e) provides that payment due a minor, or an individual
mentally incompetent or legally disabled, may be made to a person who is the
claimant’s guardian or fiduciary by state law or otherwise “legally vested with the care of
04-3453 4
one issued last will be honored.” 5 C.F.R. § 838.1016(b) (2005). Couvillion’s reliance
on our decision in Vaccaro is misplaced. In Vaccaro v. Office of Personnel
Management, 262 F.3d 1280, 1282-83 (Fed. Cir. 2001), a 1996 divorce decree divided
marital property but made no mention of a survivor annuity. After Mr. Vaccaro’s death,
in 1997, his former spouse was awarded a survivor annuity by the state court. Id. at
1283. 5 U.S.C. 8341(h)(4) directs OPM that:
(4) [f]or purposes of this subchapter, a modification in a decree,
order, agreement, or election referred to in paragraph (1) of this
subsection shall not be effective—
(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.
We held that “[t]he 1997 order was ineffective as a matter of law under 5 U.S.C.
§ 8341(h)(4) because it modified the 1996 decree after Mr. Vaccaro’s death by providing
a survivor annuity when the 1996 decree made no mention of such an annuity.”
Vaccaro, 262 F.3d at 1287. Couvillion’s case is distinguishable because it does not
involve a survivor annuity, and therefore does not involve 5 U.S.C. § 8341(h).3 Rather,
this case involves 5 U.S.C. § 8345(j)(1), which provides that “[p]ayments . . . which
would otherwise be made to an employee . . . shall be paid . . . to another person if . . .
expressly provided for in the terms of . . . any court decree of divorce . . ., or the terms of
any court order or court-approved property settlement agreement incident to any court
decree of divorce . . . .” Pursuant to 5 C.F.R. § 838.1016(b), “[w]here there are two or
the claimant or his estate”, or if no fiduciary has been appointed, to any person OPM
finds is responsible for the care of the claimant.
3
Contrary to the arguments of Couvillion, his case also does not involve
5 C.F.R. § 838.1004(e), which pertains to survivor annuities.
04-3453 5
more court orders relating to the same former spouse, the one issued last will be
honored.” Here, the QDRO was issued after the divorce decree, and therefore OPM
must recognize the QDRO.
Third, Couvillion argues that the decision of the Louisiana appeals court violated
Louisiana law. The Board found the QDRO proper because it was issued and affirmed
by the courts of Louisiana, and that OPM properly processed the QDRO. Even if the
state court made an error under Louisiana law, OPM cannot ignore the order issued by
the state court. As we held in Rosato,
[b]ecause of the regulations that OPM has imposed on itself in cases such
as this, it has no duty to look behind a court order and no authority to
refuse to accept an order . . . . Consequently, we lack the authority to
engage the United States, through OPM, in the process of seeking
correction by the [state] court . . . .
Rosato, 165 F.3d at 1382.4 Couvillion must seek correction of any error in the Louisiana
state courts.
4
The regulations provide:
OPM must comply with court orders, decrees, or court approved property
settlement agreements in connection with divorces, annulments of
marriage, or legal separations of employees, Members, or retirees that
award a portion of the former employee’s or Member’s retirement benefits
or a survivor annuity to a former spouse.
(2) In executing court orders under this part, OPM must honor the
clear instructions of the court. Instructions must be specific and
unambiguous. OPM will not supply missing provisions, interpret
ambiguous language, or clarify the court’s intent by researching individual
State laws. In carrying out the court’s instructions, OPM performs purely
ministerial actions in accordance with these regulations. Disagreement
between the parties concerning the validity or the provisions of any court
order must be resolved by the court.
5 C.F.R. § 838.101(a) (2005).
04-3453 6
Finally, Couvillion argues that the Louisiana state-court decision approving the
QDRO provision (requiring payment to his former spouse’s estate) rests upon a
misinterpretation of federal law because, he alleges, the Louisiana court interpreted
federal law to compel payment to the estate of his former spouse. The alleged
misinterpretation of federal law plainly presents a federal issue, rather than a matter
purely of state law. Merrell Dow Pharms., Inc. v. Thompson, 478 U.S. 804, 816 & n.14
(1986); Moore v. Chesapeake & Ohio Ry., 291 U.S. 205, 214 (1934); St. Louis, Iron
Mountain & S. Ry. V. Taylor, 210 U.S. 281, 293 (1908). It is unclear whether OPM
could enforce (or must enforce) a decree resting on a misinterpretation of either the
federal law that OPM is charged with administering or the regulations that OPM itself
has promulgated, and that question was not directly addressed in Rosato. However, we
need not decide that question here since we conclude that Couvillion’s premise is
incorrect. The Louisiana appeals court concluded:
We remind Michael that Beverly earned a share of all retirement benefits
acquired during the marriage; her share of such benefits is owned by her.
LSA-C.C. art. 2338; Bordes v. Bordes, 98-1004, at 3 (La. 4/13/99), 730
So.2d 443, 445; Frazier v. Harper, 600 So.2d 59, 61 (La. 1992); Sims v.
Sims, 358 So.2d 919, 922 (La. 1978). Further, the federal regulations
applicable provide a mechanism which allows Beverly to provide for
continued distribution of her share, after her death and to her estate,
through the agency responsible for administering Michael’s pension. See
5 C.F.R. § 838.237(b)(3); 5 C.F.R. § 838.1012(b)(3). If such regulations
provide Beverly with a convenient avenue to provide for distribution of her
assets to her estate, the decision to take advantage of this feature is hers
alone.
Couvillion v. Couvillion, 00-143, p.8 (La. App. 5 Cir. 9/26/00), 769 So. 2d 747, 752, writ
denied, 2000-3185 (La. 1/12/01), 781 So. 2d 562 (emphases in original). This decision
recognizes that federal law merely creates an opportunity for payment to a former
spouse’s estate if the state chooses to require such payment. There is nothing in the
04-3453 7
Louisiana decision suggesting that federal law compels Louisiana to provide for
payment to the former spouse’s estate. Under these circumstances OPM is not barred
from enforcing the state order.
We have considered Couvillion’s other arguments and find them to be without
merit.
CONCLUSION
For the foregoing reasons, the decision of the Board is affirmed.
COSTS
No costs.
04-3453 8