Adler v. Office of Personnel Management , 437 F. App'x 928 ( 2011 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
__________________________
STEPHEN I. ADLER,
Petitioner,
v.
OFFICE OF PERSONNEL MANAGEMENT,
Respondent.
__________________________
2011-3024
__________________________
Petition for review of the Merit Systems Protection
Board in case no. SF0831100512-I-1.
______________________________
Decided: July 25, 2011
______________________________
STEPHEN I. ADLER, of Ocean View, Hawaii, pro se.
SARAH M. BIENKOWSKI, Trial Attorney, Commercial
Litigation Branch, Civil Division, United States Depart-
ment of Justice, of Washington, DC, for respondent. With
her on the brief were TONY WEST, Assistant Attorney
General, JEANNE E. DAVIDSON, Director, and PATRICIA M.
MCCARTHY, Assistant Director. Of counsel was DOUGLAS
T. HOFFMAN.
__________________________
ADLER v. OPM 2
Before RADER, Chief Judge, FRIEDMAN * , and LINN, Circuit
Judges.
PER CURIAM.
Petitioner Stephen Adler, a retired federal employee,
challenges the Office of Personnel Management (“OPM”)’s
calculation of the portion of his pension to which his
former spouse is entitled. The Merit Systems Protection
Board (“Board”) affirmed. This court, too, affirms.
I
The petitioner, Mr. Adler, and his former spouse, Ms.
Valerie Baker, were married in May of 1972. The Oconto
County Circuit Court of Wisconsin entered a Judgment of
Divorce on March 21, 1997, effective January 27, 1997.
The Judgment awarded Ms. Baker one-half of Mr. Adler’s
civil service retirement plan “to be divided between the
parties by [a Qualified Domestic Relations Order].”
Shortly thereafter, Mr. Adler retired from the United
States Department of Agriculture, National Forests
division. The Oconto Court then issued an “Order with
Respect to CSRS Annuity Payment/Lump Sum
Credit/Survivor Annuity” (“Wisconsin Court Order” or
“Order”) on December 23, 1997, stating that Ms. Baker
was “entitled to a pro[]rata share of [Mr. Adler’s] gross
monthly annuity under the Civil Service Retirement
System.” The court instructed that “[i]n calculation of the
pro[]rata share the numerator shall be the number of
months of federal civilian and military service that the
employee performed during the marriage plus 24 months
of military service that the employee performed prior to
the marriage and whose denominator is the total number
* Judge Friedman, who passed away July 6, 2011,
did not participate in this decision.
3 ADLER v. OPM
of months of federal civilian and military service per-
formed.”
Contrary to the court order, Mr. Adler never served in
the military, either during or prior to his marriage with
Ms. Baker. Mr. Adler did accumulate 287 months of
federal service. Of those 287 months of service, Mr. Adler
was married to Ms. Baker for 273 of them.
Following the issuance of the Order, Ms. Baker’s at-
torney provided OPM with certified copies of both the
Order and the divorce decree. OPM first awarded Ms.
Baker half of Mr. Adler’s retirement annuity. OPM came
to this figure by erroneously using the number of months
of the Adler’s marriage as the numerator and dividing by
the total number of months of service. Mr. Adler con-
tested the award. OPM, acknowledging its error, recalcu-
lated Ms. Baker’s pro rata share as 47.56 percent,
equaling one-half of Mr. Adler’s 273 months of federal
service during the marriage divided by 287 months of
total service. Although OPM reached the correct pro rata
share, its explanation of the calculation incorrectly indi-
cated OPM was using 296 months as the denominator.
Mr. Adler continued to contest the award.
The present appeal arises out of an inquiry made by
Senator Daniel Inouye on Mr. Adler’s behalf concerning
the award of civil service benefits to Ms. Baker. In its
initial decision, OPM stated that Ms. Baker was correctly
receiving a pro rata share of Mr. Adler’s retirement bene-
fits, as directed by the Wisconsin Order. Mr. Adler re-
quested reconsideration, and OPM affirmed its initial
decision. The agency explained that in awarding Ms.
Baker a pro rata share of Mr. Adler’s benefits it was
carrying out the instructions of the Wisconsin Order.
The Board affirmed. In the initial decision, the ad-
ministrative judge addressed Mr. Adler’s contention that
ADLER v. OPM 4
the Wisconsin Order was not valid and should not have
been processed by OPM. She explained that the Wiscon-
sin Order was a qualifying court order and that OPM
properly processed it. She noted that the erroneous
reference to military service was harmless because OPM
correctly ignored it. Further, she noted that the Board
did not have jurisdiction to consider a constitutional
challenge to the Wisconsin Order. Finally, because OPM’s
explanation of its calculation included the incorrect num-
ber in the denominator, the judge remanded Mr. Adler’s
case to OPM to determine the correct number of months
to place in the denominator.
The full Board affirmed, but held that the remand
was unnecessary because it found that the typographical
error did not “enter into the actual computation.” Like
the administrative judge, the Board explained that the
state court was the proper venue to challenge the Wiscon-
sin Order. Finally, the Board found that the various
procedural errors alleged by Mr. Adler were either harm-
less or without merit.
II
Mr. Adler contests the validity and the constitutional-
ity of the Wisconsin Order. Mr. Adler also contends that
OPM violated several of its own regulations and improp-
erly processed the Wisconsin Order. Ultimately, Mr.
Adler believes that these alleged violations should result
in the return of all retirement payments made to his
former spouse, Ms. Baker, and should block any attempt
by Ms. Baker to seek retirement benefits in the future.
This court, like the Board, finds Mr. Adler’s arguments
either outside the scope of our review or without merit.
“Under 5 U.S.C. § 8345(j)(1), annuity payments oth-
erwise payable to a retired employee shall be paid to the
employee's former spouse
5 ADLER v. OPM
‘[i]f and to the extent expressly provided for in the
terms of-
(A) any court decree of divorce, annulment, or le-
gal separation, or the terms of any court order or
court-approved property settlement agreement in-
cident to any court decree of divorce, annulment,
or legal separation[.]’”
Perry v. Office of Pers. Mgmt., 243 F.3d 1337, 1339 (Fed.
Cir. 2001). In order to receive a portion of a former
spouse’s benefits, the applicant must “apply in writing” to
OPM and include a “certified copy of the court order”
authorizing the apportionment along with certification
that the order is “currently in force.” 5 C.F.R. § 838.221.
A court order qualifies for processing when it identifies
the retirement system under which the annuity exists and
“expressly state[s] the portion to which the former spouse
is entitled under the court order.” Perry, 243 F.3d at
1349-40; see also 5 C.F.R. § 838.303. The regulations
provide that “[g]enerally, OPM must comply with court
orders . . . in connection with divorces . . . that award a
portion of the former employee’s or Member’s retirement
benefits . . . to a former spouse.” 5 C.F.R. § 838.101(a)(1).
In so doing, OPM’s task is “purely ministerial” as the
agency “must honor the clear instructions of the court.”
Id. § 838.101(a)(2).
III
Mr. Adler’s main contention is that OPM violated his
constitutional rights to due process and equal protection
under the law when it enforced the Wisconsin Order. He
contends that “he was unaware that the Order was being
written and was not represented in the matter.” These
arguments are outside this court’s scope of review.
This court has previously pointed out that “the regu-
lations put [the] burden [of challenging the validity of a
ADLER v. OPM 6
state court order] squarely in the state courts.” Snyder v.
Office of Pers. Mgmt, 136 F.3d 1474, 1479 (Fed. Cir. 1998)
(citing 5 C.F.R. § 838.124). OPM informed Mr. Adler
multiple times that it was required to follow the Wiscon-
sin Order absent an amended or superseding court order.
See 5 C.F.R. § 838.224. The Administrative Judge further
informed Mr. Adler that if he desired to appeal the Wis-
consin Order in the state courts, the current case could be
dismissed without prejudice, allowing Mr. Adler to refile
in the event that his appeal was successful. Mr. Adler
declined.
The scope of this court’s review of Board decisions is
limited to determining if “agency action, findings, or
conclusions” are “not in accordance with law.” 5 U.S.C. §
7703(c). This court cannot now consider a collateral
constitutional challenge to the Wisconsin Order which
OPM was obligated to follow. Snyder, 136 F.3d at 1479.
The proper forum for a constitutional challenge to the
Wisconsin Order is a Wisconsin state court. Cf. Huffman
v. Pursue, Ltd., 420 U.S. 592, 606 (1975).
Mr. Adler also contends that his constitutional rights
were violated when OPM directly communicated with his
former spouse without his knowledge. The Wisconsin
Order, though, specifically instructed OPM to issue Ms.
Baker her share “directly,” so OPM naturally communi-
cated directly with her. As to the alleged communications
between OPM that took place following the divorce decree
but before the Order, Mr. Adler frames his argument as a
constitutional challenge to the underlying Order. Any
arguments concerning the constitutionality of the Wiscon-
sin Order, as explained above, should have been brought
before a Wisconsin state court.
7 ADLER v. OPM
IV
Mr. Adler also takes issue with OPM’s processing of
the Wisconsin Order. Mr. Adler contends that because
the Order erroneously refers to his military service, when
he did not in fact serve in the military, the Order is “false”
and cannot be implemented by OPM. Despite the errone-
ous mention of military service, OPM was correct in
processing the Wisconsin Order.
The Wisconsin Order identified the particular retire-
ment system from which the payments would be directed
to Ms. Baker, the CSRS, and instructed how to calculate
Ms. Baker’s share. The Order instructed OPM to award
Ms. Baker a pro rata share of Mr. Adler’s retirement,
based on a ratio where the denominator was Mr. Adler’s
total number of months of federal service and the nu-
merator was the number of months of federal service
while married to Ms. Baker. By calculating the ratio
using the correct number of total months and excluding
the military service, OPM followed the terms “expressly
provided for” in the Wisconsin order. 5 U.S.C. §
8345(j)(1). This court views the mention of 296 months in
OPM’s explanatory letter as a typographical error that
did not impact the actual calculation.
Mr. Adler also contends that OPM should not have
processed the Wisconsin Order because it was not accom-
panied by a certification stating it was currently in force,
as required under 5 C.F.R. §838.221(b). To the extent this
was an error, it was harmless. After informing Mr. Adler
in July of 1998 that it was bound to apply the Order
absent an amended or superseding Order, OPM was
effectively on notice that the Order was in force by the
lack of a response from Mr. Adler.
Strangely, Mr. Adler contends that OPM erred by not
awarding Ms. Baker a share of his survivor annuity, as
ADLER v. OPM 8
stated in the Order. OPM found that the portion of the
Order referencing the survivor annuity was not accept-
able for processing because it was issued after Mr. Adler
retired, contrary to regulations. See 5 C.F.R. § 838.806(a);
[A76]. This court agrees, and therefore finds no merit to
the argument that this somehow implicates the validity of
the Order.
Finally, Mr. Adler contends that OPM has violated
several procedures and regulations. Most of these regula-
tions, though, do not apply to Mr. Adler’s case because
they concern court orders submitted to OPM prior to
1993. See 5 C.F.R. § 838.101(c). None of the alleged
violations, though, have in any way affected OPM’s proc-
essing of the Order. For example, Mr. Adler contends
that OPM failed to properly designate and inform him of
the replacement representative handling his matter. This
and similar contentions in no way alter the outcome of
Mr. Adler’s case.
Mr. Adler points out in his informal reply brief that
the government was apparently untimely in the filing of
its informal response brief. The government failed to file
its informal response brief within 21 days, as stated in the
Guide for Pro Se Petitioners and Appellants. The Guide
also notes, though, that when the “appellee or respondent
fails to comply with the rules, you are not entitled to the
relief you seek solely by reason of that noncompliance,
because the appellant or petitioner always has the burden
to establish entitlement to relief in the court of appeals
and cannot meet that burden by the failure of another to
comply with the rules.” Therefore, the apparent untime-
liness of the government’s response has no impact on the
merits of Mr. Adler’s case.
V
The decision is AFFIRMED.