Carter v. Opm , 626 F. App'x 979 ( 2015 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
ALAN W. CARTER,
Petitioner
v.
OFFICE OF PERSONNEL MANAGEMENT,
Respondent
______________________
2015-3137
______________________
Petition for review of the Merit Systems Protection
Board in No. CH-0831-14-0619-I-1.
______________________
Decided: September 15, 2015
______________________
ALAN W. CARTER, St. Louis, MO, pro se.
ANTHONY F. SCHIAVETTI, Commercial Litigation
Branch, Civil Division, United States Department of
Justice, Washington, DC, for respondent. Also represent-
ed by BENJAMIN C. MIZER, ROBERT E. KIRSCHMAN, JR.,
FRANKLIN E. WHITE, JR.
______________________
Before DYK, TARANTO, and HUGHES, Circuit Judges.
2 CARTER v. OPM
PER CURIAM.
Alan Carter was a federal employee at the time that
he and Karen Kay Carter divorced. We will call them by
their first names for simplicity. A state-court “domestic
relations order” at the time provided expressly for an
allocation of any “former spouse survivor annuity” that
Karen might receive upon Alan’s death, referring express-
ly to the statutory provision authorizing such an annuity,
5 U.S.C. § 8341(h). The order awarded Karen the “maxi-
mum possible former spouse survivor annuity under the
Civil Service Retirement System in the same amount to
which Karen Kay Carter would have been entitled if the
divorce had not occurred.” S.A. 68.
Years later, Alan retired. A few years after that, he
submitted to the Office of Personnel Management an
amended state-court domestic relations order, which
stated that his ex-wife should receive a lower amount of
any former spouse survivor annuity, keyed to the amount
of time (seven years) they were married. S.A. 59. Karen
and Alan agreed that this lower amount was what they
had originally intended years earlier. But OPM conclud-
ed that, because Alan had retired, it was barred by stat-
ute and regulation from processing the request to change
the survivor annuity based on the amendment—a change
that would have reduced the annuity-funding amounts
that OPM was withholding from retirement benefits being
paid to Alan. The Merit Systems Protection Board agreed
with OPM that the amended order was ineffective be-
cause it was issued after Alan had retired. We affirm.
BACKGROUND
While working for the Army, Alan was married to Ka-
ren. Their marriage, which began on March 26, 1988,
ended in divorce on March 3, 1995. On that date, the
Circuit Court of St. Louis County, Missouri, entered a
decree of dissolution, which incorporated the terms of a
marital settlement agreement signed by the parties. The
CARTER v. OPM 3
marital settlement agreement provided that, to comply
with OPM regulations, the court would enter a domestic
relations order detailing Karen’s right to receive a portion
of Alan’s eventual federal pension benefits.
The state court entered the domestic relations order
on June 8, 1995. It awarded Karen a portion of Alan’s
monthly benefit and, separately, provided for Karen to
receive a former spouse survivor annuity under federal
law:
Under section 8341(h)(1) of Title 5, United States
Code, Karen Kay Carter is awarded the maximum
possible former spouse survivor annuity under the
Civil Service Retirement System in the same
amount to which Karen Kay Carter would have
been entitled if the divorce had not occurred.
S.A. 68. On November 11, 1995, OPM notified the parties
by letter that it had processed the papers, including the
June 1995 domestic relations order, and that, if Karen
survived Alan, she would receive a survivor annuity equal
to 100% of the surviving spouse benefit payable under the
Civil Service Retirement System.
Mr. Carter retired fifteen years later, on October 22,
2010. In 2011, based on the June 1995 domestic relations
order, OPM calculated the maximum survivor annuity for
Karen and, to cover the cost, began deducting $397 from
the monthly retirement payments to Alan. Believing
OPM’s determination to be erroneous, Alan turned to the
Missouri state court, and on March 13, 2013, he obtained
an amended domestic relations order, which modified the
June 1995 order. As relevant here, the amended order
reduced the apportionment of the former spouse survivor
annuity from the “maximum possible” to a “prorata [sic]
share.” S.A. 59. Alan filed the new order with OPM to try
to effectuate the change.
4 CARTER v. OPM
OPM notified Alan that, under 5 C.F.R. § 838.806, it
could not process the request. The problem, OPM ex-
plained, was that the amended order was issued after
Alan retired and was a modification of the first order
dividing marital property.
When Alan filed an appeal with the Merit Systems
Protection Board, Karen intervened to state her agree-
ment with Alan. As the Board later described her posi-
tion, Karen agreed that “the amended [domestic relations
order] properly reflected the intent of the parties’ original
settlement agreement,” S.A. 7, a description that refers to
the March 1995 agreement, but not the June 1995 domes-
tic relations order. The administrative judge reversed
OPM’s decision, ruling that 5 C.F.R. § 838.806(b) permits
processing of an amended order that is submitted before
either the employee’s retirement or the employee’s death. 1
On OPM’s petition for review, the Board agreed with
OPM that 5 U.S.C. § 8341(h)(4) and 5 C.F.R. § 838.806(b)
clearly dictate that “a court order issued after an annui-
tant’s retirement or death and modifying the first order
dividing the marital property is not acceptable for pro-
cessing.” S.A. 8–9. It therefore reversed the administra-
tive judge’s ruling and affirmed OPM’s refusal to process
Alan’s 2013 submission.
Alan appeals. We have jurisdiction under 28 U.S.C.
§ 1295(a)(9) and 5 U.S.C. § 7703(b)(1).
1 The administrative judge also thought it signifi-
cant that the amended domestic relations order modifies
the June 1995 domestic relations order and not the March
1995 marital settlement agreement. Alan does not rely on
that ground here, which in any event lacks merit.
CARTER v. OPM 5
DISCUSSION
We must affirm the Board’s decision unless it is arbi-
trary, capricious, an abuse of discretion, or otherwise not
in accordance with the law; obtained in violation of proce-
dures required by law, rule, or regulation; or unsupported
by substantial evidence. 5 U.S.C. § 7703(c); Addison v.
Dep’t of Health & Human Servs., 945 F.2d 1184, 1186
(Fed. Cir. 1991).
We first reject Alan’s contention that the June 1995
domestic relations order is ambiguous. The above-quoted
language, from section 5 of the June 1995 order, is clear
in providing for “the maximum possible former spouse
survivor annuity” under the relevant federal retirement
system. S.A. 68. Section 5 is entitled “former spouse
survivor annuity”; it refers to 5 U.S.C. § 8341(h)(1); and it
is the only provision of the June 1995 order that address-
es the “former spouse survivor annuity” at all, let alone
with the clarity required by federal law. 5 U.S.C.
§ 8341(h)(1); see 5 C.F.R. §§ 838.101(a)(2), 838.912(c)(1).
Although Alan cites other provisions of the June 1995
order in arguing that the order is unclear, those provi-
sions involve benefits other than a former spouse survivor
annuity.
Thus, only one provision of the June 1995 order ad-
dresses the subject, and it uses OPM’s own model lan-
guage, see 5 C.F.R. part 838, subpart I, appendix A,
paragraph 701, in providing for an award of “the maxi-
mum possible survivor annuity.” That language is unam-
biguous, certainly in the respect at issue here: Karen was
awarded the maximum possible amount. And that lan-
guage is determinative, and is not made unclear by any
retirement booklets or annuity statements with incon-
sistent monthly contribution amounts that OPM may
have sent to Alan. Reply Br. at 2; see Hayward v. Office of
Pers. Mgmt., 578 F.3d 1337, 1345 (Fed. Cir. 2009).
6 CARTER v. OPM
The Board correctly concluded that OPM was barred
by statute and regulation from processing Alan’s change
request based on the 2013 amended domestic relations
order because that order modified the June 1995 order
and, as is undisputed, it issued after Alan had already
retired. 5 U.S.C. § 8341(h)(4) 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 retire-
ment or death of the employee or Member con-
cerned, and
(B) to the extent that such modification involves
an annuity under this subsection.
OPM’s implementing regulation, 5 C.F.R. § 838.806(b),
adds:
For purposes of awarding, increasing, reducing, or
eliminating a former spouse survivor annuity, or
explaining, interpreting, or clarifying a court or-
der that awards, increases, reduces or eliminates
a former spouse survivor annuity, the court order
must be—
(1) Issued on a day prior to the date of retirement
or date of death of the employee; or
(2) The first order dividing the marital property of
the retiree and the former spouse.
The statute clearly states that a modification issued
after the federal employee’s retirement is ineffective to
the extent it involves a former spouse survivor annuity
like the one at issue here. The regulation states that such
a modification must either be the first order dividing
marital property or issue before the employee retires.
CARTER v. OPM 7
There is no substantive difference between the statute
and regulation that is material to the present case.
Here, the March 2013 amended domestic relations or-
der was not the first order dividing marital property. It
followed the June 1995 order, which certainly divided
marital property (putting aside what happened before
June 1995). It was issued in March 2013, well after Alan
retired in October 2010. And it modified the June 1995
order specifically regarding the annuity at issue. We have
held, on facts similar to those involved in this case, that
changing the former spouse survivor annuity from “the
maximum possible” to the pro rata share earned during
marriage is a modification under § 8341(h)(4) because it
reduces the amount the former spouse is entitled to
receive. See Moran v. Office of Pers. Mgmt., 310 F.3d
1382, 1384–85 (Fed. Cir. 2002). And the conclusion
stands even if the amended order’s substantive modifica-
tion is deemed a “clarification.” 5 C.F.R. § 838.806(b)
(encompassing orders that explain or clarify an earlier
order); Moran, 310 F.3d at 1385. 2
Our conclusion is not altered by whether the Carters
intended in 1995, or agree now, that Karen should receive
a pro rata share of, rather than the maximum possible,
survivor annuity. OPM’s role is limited to the essentially
ministerial task of giving effect to the actual language of
2 It is immaterial for the legal issue presented
whether, as Alan asserts, the June 1995 order was an
impermissible modification of the March 1995 marital
settlement agreement. Pet. Br. at 6–7. In any event, the
March 1995 marital settlement agreement expressly
reserved issuing a later domestic relations order to divide
federal retirement benefits. In this situation, the June
1995 order, issued long before Alan’s retirement, was
effective. See 5 U.S.C. § 8341(h)(4); Vaccaro v. Office of
Pers. Mgmt., 262 F.3d 1280, 1287 (Fed. Cir. 2001).
8 CARTER v. OPM
the domestic relations order. Moran, 310 F.3d at 1384.
For the same reasons, OPM cannot be faulted for not
evaluating the merits of Alan’s claim that the June 1995
domestic relations order violated Missouri law. See 5
C.F.R. § 838.101(a)(2); Perry v. Office of Pers. Mgmt., 243
F.3d 1337, 1340–41 (Fed. Cir. 2001). Thus, the Board
properly affirmed OPM’s refusal to consider the March
2013 amended domestic relations order because it was
issued too late to have the desired effect of modifying the
June 1995 domestic relations order.
CONCLUSION
For the foregoing reasons, the judgment of the Board
is affirmed.
No costs.
AFFIRMED