Arlene Smith In Re Paul D. Marshal v. Office of Personnel Management ( 2022 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ARLENE SMITH IN RE PAUL D. DOCKET NUMBER
MARSHALL, AT-0831-10-0059-M-1
Appellant,
v.
DATE: May 16, 2022
OFFICE OF PERSONNEL
MANAGEMENT,
Agency,
and
MARTHA MARSHALL,
Intervenor.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Jeffrey S. Stephens, Esquire, Beaufort, South Carolina, for the appellant.
Jane Bancroft, Washington, D.C., for the agency.
Patrick D. Riley, Esquire, Lorain, Ohio, for the intervenor.
BEFORE
Raymond A. Limon, Vice Chair
Tristan L. Leavitt, Member
1
A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges a re not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
2
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
affirmed the reconsideration decision of the Office of Personnel Management
(OPM), finding that she was not entitled to a former spouse survivor annuity. For
the reasons discussed below, we GRANT the appellant’s petition for review ,
VACATE the initial decision, and REVERSE OPM’s reconsideration decision.
As explained below, we find that the appellant is entitled to a former spouse
survivor annuity.
BACKGROUND
¶2 This case is before the Board after the U.S. Court of Appeals for the Federal
Circuit (Federal Circuit) vacated the Board’s decision in Arlene Smith In re Paul
D. Marshall v. Office of Personnel Management, MSPB Docket No. AT-0831-10-
0059-B-2, Final Order (Jan. 22, 2014), in which the Board determined that the
appellant was not entitled to a former spouse survivor annuity based on a 1987
qualified domestic relations order (QDRO). Smith v. Office of Personnel
Management, 578 F. App’x 973 (Fed. Cir. 2014). The Federal Circuit remanded
the appeal, instructing the Board to consider the effect, if any, of a 1999
modification of the QDRO. Id. The relevant language of the 1987 QDRO is as
follows:
7. IT IS FURTHER ORDERED, ADJUDGED AND DECREED that
the Plaintiff, ARLENE MARSHALL, shall retain a vested interest in
the Defendant’s pension with the Federal Civil Service Retirement
System pursuant to a duly Qualified Domestic Order which the Court
creates herein as follows:
. . .
B. At the time the primary participant, PAUL MARSHALL, actually
receives his share of the pension; however, no later than his attaining
the age of 65 years, Plaintiff, ARLENE MARSHALL . . . , shall
receive a sum equal to 20% of the Defendant’s presently vested
amount;
3
C. Said distribution to the Plaintiff, ARLENE MARSHALL, as
alternative recipient shall be for the rest of her life, subject to the
terms and conditions of said Retirement Plan. In the event of the
death of the primary participant, . . . the said alternative recipien t,
ARLENE MARSHALL, . . . shall be entitled to the surviving
spouse’s allowance as alternative beneficiary in the event said
interest is greater than 20%, and in the event the primary participant
has not named one or more alternative beneficiaries; however , in no
event shall ARLENE MARSHALL’s interest be less than said 20%
of the presently vested interest as set forth above.
...
E. It is the intention of this Court to create a duly qualified domestic
order and the Court retains jurisdiction to do any an d all things
necessary to enforce its order and intent to provide Plaintiff,
ARLENE MARSHALL, with a vested 20% per month of Defendant’s
retirement benefits with the Federal Civil Service Retirement System
as heretofore set forth, pursuant to the Pension Reform Act of 1984,
effective January 1, 1985, and pursuant to law.
¶3 Arlene Smith In re Paul D. Marshall v. Office of Personnel Management,
MSPB Docket No. AT-0831-10-0059-B-1, Appeal File, Tab 6, Subtab 2d
at 21‑27. A December 21, 1999 modification of the 1987 QDRO made specific
amendments as follows:
1. Paragraph 7(B) is hereby deleted in its entirety and replaced with
the following:
“(B) At the time the primary participant, PAUL MARSHALL,
actually receives his share of the pension; however, no later than his
attaining the age of sixty-five (65) years, Plaintiff, ARLENE
MARSHALL, . . . shall receive [$338.60] per month;”
2. Paragraph 7(C) is hereby deleted in its entirety and replaced with
the following:
“(C) Said distribution to the Plaintiff, ARLENE MARSHALL, as
alternate recipient shall be for the rest of her life, subject to the
terms and conditions of said Retirement Plan.”
3. The fourth Line of Paragraph 7(E) is hereby modified to read as
follows:
“provide Plaintiff, ARLENE MARSHALL, with [$338.60]”
4. A new Paragraph 7(G) is hereby added as follows:
4
“The Defendant, PAUL MARSHALL, has remarried as evidenced
by the marriage license attached hereto as Exhibit B. Defendant’s
spouse, MARTHA MARSHALL, may be named by Defendant,
PAUL MARSHALL, as his surviving spouse for all pension and
retirement benefits available to a surviving spouse except for those
benefits allocated to the Plaintiff, ARLENE MARSHALL, as set
forth in Paragraph 1 of this Journal Entry.”
5. A new Paragraph 7(H) is hereby added as follows:
“The Court has considered the requirements and standard
terminology provided in Part 838 of Title 5, Code of Federal
Regulations. The terminology used in the provisions of this Order
that concern benefits under the Civil Service Retirement System are
governed by the standard conventions established by that part.”
¶4 Id. at 17-18. Thus, the 1987 QDRO as modified by the 1999 order provides
as follows:
B. At the time the primary participant, PAUL MARSHALL, actually
receives his share of the pension; however, no later than his attaining
the age of sixty-five (65) years, Plaintiff, ARLENE Marshall . . . ,
shall receive [$338.60] per month;
C. Said distribution to the Plaintiff, ARLENE MARSHALL, as
alternative recipient shall be for the rest of her life, subject to the
terms and conditions of said Retirement Plan.
...
E. It is the intention of this Court to create a duly qualified domestic
order and the Court retains jurisdiction to do any and all t hings
necessary to enforce its order and intent to provide Plaintiff,
ARLENE MARSHALL, with [$338.60] per month of the
Defendant’s retirement benefits with the Federal Civil Service
Retirement System as heretofore set forth, pursuant to the Pension
Reform Act of 1984, effective January 1, 1985, and pursuant to law.
...
G. The Defendant, PAUL MARSHALL, has remarried as evidence d
by the marriage license attached hereto as Exhibit B. Defendant’s
spouse, MARTHA MARSHALL, may be named by Defendant,
PAUL MARSHALL, as his surviving spouse for all pension and
retirement benefits available to a surviving spouse except for those
5
benefits allocated to the Plaintiff, ARLENE MARSHALL, as set
forth in Paragraph 1 of this Journal Entry.
H. The Court has considered the requirements and standard
terminology provided in Part 838 of Title 5, Code of Federal
Regulations. The terminology used in the provisions of this Order
that concern benefits under the Civil Service Retirement System are
governed by the standard conventions established by that part.
¶5 On remand, the administrative judge adopted the Board’s prior findings that
the 1987 QDRO failed to provide the appellant with a former spouse survivor
annuity. Arlene Smith In re Paul D. Marshall v. Office of Personnel
Management, MSPB Docket No. AT-0831-10-0059-M-1, Appeal File, Tab 17,
Initial Decision (ID) at 3. The administrative judge further found that the 1999
order did not expressly provide the appellant a former spouse survivor annuity .
ID at 4-8. The appellant has filed a petition for review. Petition for Review
(PFR) File, Tab 1. The agency has opposed the appellant’s petition. PFR File,
Tab 4.
DISCUSSION OF ARGUMENTS ON REVIEW
¶6 The appellant bears the burden of proving her entitlement to a survivor
annuity by preponderant evidence. Cheeseman v. Office of Personnel
Management, 791 F.2d 138, 141 (Fed. Cir. 1986); Gilliam v. Office of Personnel
Management, 91 M.S.P.R. 352, ¶ 9 (2002); 5 C.F.R. § 1201.56(b)(2)(ii). Under
the Civil Service Retirement Spouse Equity Act of 1984, the divorced spouse of a
retired Federal employee is entitled to a survivor annuity if the employee has
elected a survivor annuity under 5 U.S.C. § 8339(j)(3), or a survivor annuity has
been expressly provided for in a divorce decree or a court order or court -approved
property settlement agreement issued in conjunction with a divorce decree . See
5 U.S.C. § 8341(h)(1); Warren v. Office of Personnel Management, 407 F.3d
1309, 1313 (Fed. Cir. 2005). The Board has held that the expressly provided for
provision does not require “magic words,” but only that the intent to provide the
survivor annuity be clear, definite, explicit, plain, direct, and unmistakable, not
6
dubious or ambiguous. Thomas v. Office of Personnel Management, 46 M.S.P.R.
651, 654 (1991). The interpretation of what is expressly provided for in a court
order or court-approved property settlement agreement incident to a decree of
divorce must be made on a case-by-case basis. See Hahn v. Office of Personnel
Management, 71 M.S.P.R. 154, 156 (1996).
¶7 The administrative judge found that the language in the 1999 order failed to
award the appellant a survivor annuity because it did not use terms sufficient to
identify an entitlement to a survivor annuity, such as surv ivor annuity, death
benefits, or former spouse survivor annuity. ID at 7. She further found that
paragraph 7(G) did not clearly award a survivor annuity because it referenced
paragraph 1, which provided the appellant with a portion of her former spouse’s
annuity while he was alive. ID at 8. We disagree.
¶8 We conclude that the unmistakable intent of paragraphs 7(B) and (C) of the
1987 QDRO as modified by the 1999 order was to provide the appellant a lifetime
monthly benefit of $338.60. Such paragraphs, when read in conjunction with
paragraph 7(G), which provides that the appellant’s former husband could name
his current spouse as a surviving spouse for all retirement benefits available to a
surviving spouse except for those benefits allocated to the appell ant, demonstrate
a clear intent that the appellant continue to receive benefits following the dea th of
her former spouse. Such benefits would constitute a survivor annuity. Thus, we
find that the 1987 QDRO as modified by the 1999 order expressly provided the
appellant with a survivor annuity in the amount of $338.60 per month. See, e.g.,
Bliznik v. Office of Personnel Management, 58 M.S.P.R. 340, 344 (1993) (finding
that a divorce decree expressly provided for a survivor annuity when a survivor
annuity was the only payment that would provide the appellant with the “lifetime
benefit” to which she was entitled by the divorce decree).
¶9 The administrative judge found that while she believed that the parties
intended to provide the appellant with a survivor annuity, the 1999 order failed to
do so because, among other things, it failed to comply with OPM’s regulations.
7
ID at 7-8. In particular, 5 C.F.R. § 838.803(b), which provides that any court
order that provides that the former spouse’s portion of the employee annuity shall
continue after the death of the employee or retiree, such as a court order
providing that the former spouse’s portion of the employee annuity will continue
for the lifetime of the former spouse, but does not use terms such as survivor
annuity, death benefits, former spouse annuity, or similar terms is not a court
order acceptable for processing. ID at 8. 5 C.F.R. § 838.302(b) contains similar
language regarding orders awarding an annuity to a former spouse during the
Federal employee’s life, and states that court orders that provide that a former
spouse’s portion of the employee annuity will continue for the lifetime of the
former spouse are not court orders acceptable for processing.
¶10 Both 5 C.F.R. § 838.302 and 5 C.F.R. § 838.803 apply to court orders
received by OPM on or after January 1, 1993. 5 C.F.R. § 838.101(c)(1). Thus,
they would apply to the 1999 order, but not the 1987 order. The language
pertaining to the lifetime benefits was set forth in the 1987 order and remained
unchanged by the 1999 modifications. However, even assuming the regulations
apply, the Board has cautioned against a rigid application of 5 C.F.R. § 838.302(or section 838.803) that “‘frustrate[s] the language and intent of 5 U.S.C.
§ 8341(h).’” Arnold v. Office of Personnel Management, 94 M.S.P.R. 86, ¶ 16
(2003) (quoting Hunt v. Office of Personnel Management, 89 M.S.P.R. 449, ¶ 12
(2001)). The purpose of the regulations is to preserve OPM’s ministerial
function, assuring that OPM will not have to interpret orders to ascertain the
parties’ intent. Hunt, 89 M.S.P.R. 449, ¶ 11; see 57 Fed. Reg. 33570, 33571
(1992). Thus, the Board has held that there is no rational reason to apply the
regulation to deny a survivor annuity when the expressly provided requirement of
the statute is met. Hunt, 89 M.S.P.R. 449, ¶¶ 12-14. Here, we find that the
parties’ intent to provide a survivor annuity is clear based on the express
language of the order. Therefore, we find that failure to follow precisely the
requirements of the regulations does not bar the award of the survivor annuity.
8
¶11 Accordingly, we find that the 1987 QDRO as modified by the 1999 court
order provided the appellant a former spouse survivor annuity of $338.60 per
month. We vacate the initial decision and reverse OPM’s reconsideration
decision, which found that the appellant was not entitled to a former spouse
survivor annuity.
ORDER
¶12 We ORDER the Office of Personnel Management (OPM) to award the
appellant former spouse survivor annuity benefits in accordance with the terms of
the 1987 QDRO, as modified by the 1999 order. OPM must complete this action
no later than 20 days after the date of this decision.
¶13 We also ORDER OPM to tell the appellant promptly in writing when it
believes it has fully carried out the Board’s Order and of the actions it has taken
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).
¶14 No later than 30 days after OPM tells the appellant it has fully carried o ut
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).
NOTICE TO THE APPELLANT REGARDING
YOUR RIGHT TO REQUEST
ATTORNEY FEES AND COSTS
¶15 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 (5 U.S.C.), sections 7701(g), 1221(g), or 1214(g). The
9
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
and costs WITHIN 60 CALENDAR DAYS OF THE DATE OF THIS DECISION.
You must file your motion for attorney fees and costs with the office that issued
the initial decision on your appeal.
NOTICE OF APPEAL RIGHTS 2
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 cl aims 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
2
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.
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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:
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 an y 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. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
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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 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 respec tive
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 Employmen t
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
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(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
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. 3 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.go v. 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.
3
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.
13
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.
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.
FOR THE BOARD: /s/ for
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.