                             UNITED STATES DISTRICT COURT
                             FOR THE DISTRICT OF COLUMBIA


CHERYL RIVERA,

                        Plaintiff,
                                                      Civil Action No. 11-1305 (BJR)
                v.
                                                      MEMORANDUM OPINION ON CROSS-
                                                      MOTIONS FOR SUMMARY JUDGMENT
JACK LEW,
Secretary of the United States Department
of the Treasury, et al.,

                        Defendants.



        Plaintiff Cheryl Rivera was married to Luis Rivera, a District of Columbia police officer,

until their divorce in February 2009. Mr. Rivera died later that year, and Ms. Rivera sought

survivor benefits from the District of Columbia Police and Firefighters Retirement Plan

(hereinafter “Plan”). When the District of Columbia Retirement Board (hereinafter “DCRB”) and

the U.S. Treasury Department’s Office of D.C. Pensions (hereinafter “ODCP”) denied her

request, Ms. Rivera filed the instant suit against DCRB; the Plan; the United States Secretary of

the Treasury Jack Lew; 1 and Mr. Rivera’s two surviving children, A.R. and G.L, 2 who currently

receive Plan benefits. The parties have now filed cross-motions for summary judgment. Because

DCRB and ODCP’s denial of Ms. Rivera’s benefits claim was consistent with relevant law, the

Court will grant Defendants’ motions and deny Plaintiff’s.


1
    Although this suit was originally brought against Timothy Geithner as the then-Secretary of the
    United States Department of the Treasury, Jack Lew, the current Secretary, is substituted as
    Defendant under Federal Rule of Civil Procedure 25(d)(1).
2
    Lourdes Lopez, G.L.’s mother and legal guardian, is named as a Defendant in G.L.’s stead. A.R. is
    herself named as a Defendant, but, because her mother and legal guardian is the Plaintiff in this
    action, she is represented by guardians ad litem. See generally Order on Mot. for Joinder and
    Appointing Guardians Ad Litem (Dkt. #34).
I.     BACKGROUND

       The facts underlying this case are undisputed. Cheryl and Luis Rivera were married in

October 1992 and divorced in February 2009. See Pl.’s Statement of Material Facts Not in

Dispute (Dkt. #44-4) (hereinafter “Pl.’s SOF”) ¶¶ 1–2. Until his death in December 2009, Mr.

Rivera served as a District of Columbia Police Officer and was an active participant in the D.C.

Police and Firefighters Retirement Plan, which provides pension, survivor, and other benefits to

its members and their beneficiaries. See id. ¶¶ 4–6; Treasury’s Statement of Facts (Dkt. #49)

(hereinafter “Treasury’s SOF”) ¶ 8; see also generally D.C. Code §§ 5-701 et seq. Pursuant to

the Balanced Budget Act of 1997, as amended, D.C. Code §§ 1-801 et seq., the Plan is funded by

both the District of Columbia and the federal government. See id.; see also Treasury’s SOF ¶¶ 1–

2. Specifically, ODCP, an office of the U.S. Department of Treasury, is responsible for paying

benefits for service rendered prior to June 30, 1997, and the DCRB, an independent D.C. agency,

is responsible for benefits related to service rendered after that date. See D.C. Code §§ 1-801 et

seq.

       Given this “split of fiscal responsibility,” 31 C.F.R. § 29.301, the Plan’s administration is

somewhat complex. Initial applications for Plan benefits are processed by DCRB, see id.

§ 29.404(a), and DCRB also provides for reconsideration of initial benefit determinations, see id.

§ 292.404(b)–(d). Applicants claiming federal benefits—i.e., from service rendered prior to June

30, 1997—may then appeal DCRB’s reconsideration decision to ODCP. See id. § 29.405;

Treasury Order 102-23 (Aug. 13, 2004) (delegating Secretary’s authority to ODCP).

       Shortly after Mr. Rivera died, DCRB began paying Plan annuities to his two surviving

children, A.R. (whose mother is the Plaintiff, Ms. Rivera) and G.L (whose mother is Lourdes

Lopez). See Treasury’s SOF ¶ 13. Because the Riveras were no longer married at the time of Mr.




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Rivera’s death, Ms. Rivera was not automatically eligible for similar benefits. Rather, the D.C.

Spouse Equity Act of 1998, D.C. Code §§ 1-529.01 et seq., provides that a former spouse like

Ms. Rivera is only eligible for Plan survivor benefits if she submits a “qualifying court order”

that “state[s] the former spouse’s entitlement to [such benefits].” See id. § 1-529.02(c). In May

2010, Ms. Rivera contacted DCRB by telephone in order to claim benefits. In support, she

submitted various documents related to her divorce, including a Property/Asset Settlement

Agreement that addressed her entitlement to Mr. Rivera’s pension. Id. ¶ 14; see also

Administrative Record (hereinafter “A.R.”) at 5, 35.

       DCRB denied Ms. Rivera’s claim, concluding that the Settlement Agreement did not was

not a “qualifying court order” because it did not state her entitlement to a survivor annuity. See

A.R. 33–34. Ms. Rivera requested reconsideration of DCRB’s decision, asking DCRB to

stipulate to the Brevard County (Florida) Circuit Court’s entry of a nunc pro tunc domestic

relations order that would retroactively amend the Settlement Agreement to state her entitlement

to survivor benefits. See id. at 5–6, 42–43, 50; Treasury’s SOF ¶¶ 17–18. DCRB acknowledged

that a qualifying court order “may be issued after the death of a plan participant,” but it declined

to stipulate to the proposed order because it “include[d] a spousal survivor benefit that was not

included in the parties’ [original] Property/Asset Settlement Agreement.” A.R. 50. Accordingly,

it denied Ms. Rivera’s request for reconsideration. See id.

       Despite DCRB’s refusal to stipulate to the proposed nunc pro tunc order and its denial of

her claim, Ms. Rivera proceeded to petition the Brevard County Circuit Court for the entry of her

proposed order. See Treasury’s SOF ¶ 21; A.R. 56. In August 2010, the court entered the order,

which purported to retroactively amend the Riveras’ Settlement Agreement to “establish[ ] [Ms.




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Rivera’s] entitlement to receipt of the entire monthly regular survivor benefit.” Id.; see also id. at

54–57.

         In September 2010, Ms. Rivera submitted the court-approved nunc pro tunc order to

DCRB, again requesting that DCRB approve her claim to Mr. Rivera’s survivor benefits. See id.

at 54. DCRB responded by letter a few weeks later, explaining that DCRB and ODCP would

construe Ms. Rivera’s submission to be a further appeal of DCRB’s decision denying her claim.

See id. at 12. The letter further explained that “[b]ecause DCRB and ODCP are [each]

responsible for a portion of any benefit payable based on Mr. Rivera’s service, and the rules

governing the two agencies are not the same, each agency [would] independently consider [Ms.

Rivera’s] appeal.” Id. DCRB also sent letters to Ms. Rivera in her capacity as A.R.’s guardian

and to Ms. Lopez in her capacity as G.L.’s guardian, informing them that the children’s survivor

benefits would be reduced from approximately $2,600 per month to approximately $300 per

month if Ms. Rivera won her appeal. See A.R. 65–88.

         In January 2011, DCRB and Treasury jointly issued a decision denying Ms. Rivera

appeal. 3 See A.R. 2–10. The decision reasoned that “[n]either the Plan nor the Spouse Equity Act

expressly define[s] a posthumous nunc pro tunc [domestic relations order] as a qualifying court

order.” Id. at 6 (citing D.C. Code §§ 1-529.02(c), 1-529.03(b)–(c)). “Absent a qualifying order

entered into prior to an active Plan participant’s death,” DCRB and ODCP went on to explain, a

survivor’s legal entitlement to Plan benefits “are fixed at the time of the participant’s death by

operation of law.” Id. Accordingly, because the Settlement Agreement the Riveras entered prior

to Mr. Rivera’s death did not establish Ms. Rivera’s entitlement to survivor benefits, DCRB and

3
    The joint decision was issued in the form of a substantive letter from DCRB, see A.R. 2–8, and a
    separate letter from ODCP concurring in DCRB’s analysis, see id. 9–10. Treasury’s motion explains
    that “Treasury and DCRB jointly assessed . . . Plaintiff’s claim, and Treasury allowed DCRB to take
    the lead in drafting the final decision, given DCRB’s substantial expertise in administering the
    provisions of the Spouse Equity Act . . . .” Treasury’s Mot. at 5 n.3.


                                                   4
ODCP concluded that she failed to “qualify as a former spouse for purposes of a survivor

benefit.” Id. at 7.

        Ms. Rivera filed the instant appeal in July 2011, 4 initially naming Treasury, DCRB, and

the Plan as Defendants. See Compl. (Dkt. #1) at 1. In light of the children’s financial interest in

the case, the Court subsequently granted unopposed motions to join A.R. and Ms. Lopez, G.L.’s

guardian, as Defendants. See Minute Order (June 13, 2012) (joining Ms. Lopez); Order on Mot.

for Joinder (Dkt. #34) (joining A.R. and appointing guardians ad litem). The parties have now

filed cross-motions for summary judgment. On the one hand, Ms. Rivera’s motion seeks to

overturn DCRB and ODCP’s denial of her benefits claim. See generally Pl.’s Mot. (Dkt. #44).

She does not challenge DCRP and ODCP’s determination that the original Settlement Agreement

did not constitute a “qualifying court order,” but rather argues only that the agencies erred by

failing to recognize the nunc pro tunc order entered by Florida court. See id. at 1. Defendants, on

the other hand, defend DCRB and ODCP’s interpretation of the D.C. Spouse Equity Act as

excluding posthumous nunc pro tunc orders. To that end, Treasury and the District Defendants

(DCRB and the Plan) filed separate motions for summary judgment, see generally Treasury’s

Mot. (Dkt. #49); D.C. Defs.’ Mot. (Dkt. #45); A.R.’s guardians ad litem filed a recommendation

for summary judgment in Defendants’ favor, see generally Guardians’ Rec. (Dkt. #48); and Ms.

Lopez filed a motion for summary judgment on G.L.’s behalf that incorporated the other

Defendants’ filings, see Lopez’s Mot. at 1.




4
    The Balanced Budget Act of 1997, as amended, D.C. Code § 1-815.02(a), vests “exclusive
    jurisdiction” over appeals from ODCP’s Plan benefits determinations in the D.C. District Court. The
    D.C. Code also provides a cause of action for review of DCRB’s benefits determinations. See id. §1-
    747(a)(1)(B).


                                                   5
II.     LEGAL STANDARD

        Federal Rule of Civil Procedure 56 provides for entry of summary judgment if “there is

no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of

law.” Fed. R. Civ. P. 56(a). Since this case is an appeal from an agency decision, the Court’s role

at this juncture is limited to considering the administrative record and deciding whether the

agency action conforms to relevant legal requirements. See, e.g., Kight v. United States, 850 F.

Supp. 2d 165, 169 (D.D.C. 2012); Stuttering Found. of Am. v. Springer, 498 F. Supp. 2d 203,

207 (D.D.C. 2007). The parties agree on this much. But because the decisions of two different

agencies—ODCP, an office in the U.S. Department of Treasury, and DCRB, a D.C. agency—are

at issue, the question of which framework controls the Court’s review is more contentious.

Specifically, the parties dispute whether this case is governed by the federal Administrative

Procedure Act, 5 U.S.C. § 706; the D.C. Administrative Procedure Act, D.C. Code § 2-510; or

the Balanced Budget Act of 1997, as amended, D.C. Code § 1-801 et seq. See, e.g., Pl.’s Mot. at

3–4 (relying on the D.C. APA); Pl.’s Opp. at 1–2 (same); Treasury’s Mot. at 2–5 (relying on the

APA); Treasury’s Op. at 4–5 (same); Treasury’s Reply at 3 (relying on the Balanced Budget

Act).

        Fortunately, however, nothing in this case turns on the slight differences between the

various proposed standards, all of which are deferential to the agencies’ decision. The Balanced

Budget Act of 1997, as amended, spells out the standard of review applicable to ODCP’s Plan

benefits decisions: “Any factual determination made by the [agency],” the statute provides,

“shall be presumed correct unless rebutted by clear and convincing evidence.” D.C. Code § 1-

805.02(b). Moreover, “[t]he [agency’s] interpretation and construction of the benefit provisions

of the District Retirement Program and this chapter shall be entitled to great deference.” Id. The




                                                 6
thrust of the APA is similar, permitting the Court to “set aside agency action” where such action

is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5

U.S.C. § 706.

           With respect to the DCRB, the D.C. Code specifically authorizes the agency to make

“reasonable interpretations of . . . all governing authorities.” Id. § 1-711(e). And just like the

federal APA, the D.C. APA directs the court to “set aside any action or findings and conclusions

found to be . . . [a]rbitrary, capricious, an abuse of discretion, or otherwise not in accordance

with law.” D.C. Code § 2-510(a)(3).

III.       ANALYSIS

           The parties’ cross-motions raise only one issue: did DCRB and ODCP err by determining

that Ms. Rivera’s nunc pro tunc order was not a “qualifying order” under the D.C. Spouse Equity

Act? 5 Ms. Rivera argues that the text, legislative history, and purpose of the D.C. Spouse Equity

Act; general equitable principles; and the parties’ intent all support her position that the agencies

were required to recognize the nunc pro tunc order and grant her survivor benefits. Defendants

disagree, relying heavily on the plain language of the D.C. Spouse Equity Act.

           In relevant part, the Act provides:

           (b) The Mayor shall comply with any qualifying court order that is issued prior to
           the employee's retirement. . . . .

           (c) The Mayor shall comply with any qualifying court order that is issued after the
           employee's retirement only to the extent it is consistent with any election
           previously executed at the time of retirement by the employee regarding that
           former spouse. . . . .

D.C. Code § 1-529.03. Ms. Rivera emphasizes that the statute makes no express exception for

nunc pro tunc orders, instead requiring “compl[iance] with any qualifying court order,” id. § 1-

5
       Although Defendants’ motions respond to a few other arguments seemingly raised in Ms. Rivera’s
       Complaint, see e.g., Treasury’s Mot. at 8–11, Ms. Rivera presses only one argument at this juncture:
       that her nunc pro tunc order was a “qualifying court order.”


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529.03(b). See Pl.’s Mot. at 4–5. “[E]xceptions not made,” she argues, “cannot be read.” Id. at 4

(emphasis omitted).

       As Defendants point out, however, Ms. Rivera points to no court that has ever recognized

a posthumous nunc pro tunc order as a “qualifying court order” for purposes of the D.C. Spouse

Equity Act or the Plan. Moreover, her interpretation ignores all of the statute’s qualifying

language. The statute does not simply state that the agencies must “comply with any qualifying

court order,” but rather that they must “comply with any qualifying court order that is issued

prior to the employee’s retirement.” D.C. Code § 1-529.03(b) (emphasis added). Orders “issued

after the employee’s retirement,” the statute continues, require compliance “only to the extent

[they are] consistent with any election previously executed at the time of retirement.” Id. § 1-

529.03(c) (emphasis added). Accordingly, under any standard of review, DCRB and ODCP got

the statute exactly right: the D.C. Spouse Equity Act does not include a flat prohibition of

posthumous orders, but such orders require compliance “only to the extent [they are] consistent

with any election previously executed,” id. § 1-529.03(c). See A.R. 6–7, 50.

       And here, as the agencies’ correctly concluded, the only order issued prior to Mr.

Rivera’s retirement was the original Settlement Agreement, which, as Ms. Rivera does not

dispute, fails to state her entitlement to survivor benefits. Furthermore, the nunc pro tunc order,

which was issued after Mr. Rivera’s death, is inconsistent with the original Settlement

Agreement insomuch as it purports to assign survivor benefits to Ms. Rivera. Ms. Rivera’s only

response is to argue that “the issue of making an election under the Plan is moot” because Mr.

Rivera had not retired at the time of the death. See Pl.’s Opp. at 4. But DCRB and ODCP’s

conclusion that the posthumous order was not “issued prior to the employee’s retirement,” D.C.

Code § 1-529.03(b), is eminently reasonable.




                                                 8
       Having lost the textual battle, Ms. Rivera falls back on legislative history, purpose, and

equity arguments, none of which undermines DCRB and ODCP’s decision to deny her benefits

claim. First, pointing to legislative history demonstrating that the D.C. Spouse Equity Act was

modeled after a similar federal statute, see Council of the District of Columbia, Report on Bill 7-

389, D.C. Spouse Equity Amendment Act of 1988, at 1–5 (Oct. 27, 1998), as well as to

Congress’s subsequent amendment of that federal statute to expressly prohibit recognition of

posthumous orders, see Civil Service Retirement Spouse Equity Act, as amended, 5 U.S.C. §

8341(h)(4), Ms. Rivera argues that the District Council’s failure to enact a similar amendment

demonstrates the Council’s affirmative intent to permit the recognition of posthumous orders.

See Pl.’s Mot. at 6–9. Defendants, however, draw the contrary inference from the relationship of

the D.C. Spouse Equity Act to the federal statute, insisting that it makes sense to interpret the

two statutes consistently. See, e.g., District Defs.’ Mot. at 14–15. Given the clarity of the

statute’s text, the Court need not draw either inference. Indeed, as the Supreme Court has

explained, a legislative body’s failure to act “lacks persuasive significance because several

equally tenable inferences may be drawn from such inaction, including the inference that existing

legislation already incorporated the offered change.” United States v. Craft, 535 U.S. 274, 287

(2002) (quoting Central Bank of Denver, N.A., 511 U.S. 164, 187 (1994)) (internal quotation

mark omitted).

       Second, Ms. Rivera contends that the primary purposes of the D.C. Spouse Equity Act—

“increas[ing] the economic protection of former spouses[,] improv[ing] morale among District

employees[,] and provid[ing] fiscal protection to the trust”—would be furthered by recognizing

her nunc pro tunc order. Pl.’s Mot. at 9. But as Defendants explain, the purposes of the Act are

better served by excluding posthumous nunc pro tunc orders. In particular, permitting a would-




                                                  9
be beneficiary to alter a Plan member’s benefit elections after his death “undermines the

member’s right to select the recipient of his or her survivor benefits, opens the door for litigation

among multiple parties claiming to be the rightful beneficiary, and creates confusion and

uncertainty in plan administration.” District Defs.’ Mot. at 15–16.

       Third and finally, Ms. Rivera turns to equity-based arguments. Emphasizing that

“retirement issues in divorce” are complex, she maintains that nunc pro tunc orders are

sometimes practically necessary to “right a wrong.” Pl.’s Mot. at 10. In addition, although she

acknowledges that “[u]nder the D.C. Code, intent of the parties is not a factor when determining

the status of a qualifying order,” Ms. Rivera nevertheless contends that parties’ intent “may be

considered as an equitable factor by this Court.” Id. at 11. The Court is not unsympathetic to Ms.

Rivera’s situation, but this case turns on a legal question, not an equitable one. And even if it

were proper for the Court to consider equitable factors, Ms. Rivera is not the only interested

party. Indeed, the benefits Mr. Rivera’s two children currently receive would be significantly

reduced if the nunc pro tunc order entitled Ms. Rivera to benefits. See Guardians’ Rec. at 1–2.

As for the parties’ intent, Ms. Rivera conceded that the D.C. Spouse Equity Act permits no such

consideration. Rather, the statute expressly requires that a “qualifying court order” award

survivor benefits “by its terms.” D.C. Code § 1-529.02(c).




                                                 10
       IV.    CONCLUSION

       The Court finds that the DCRB and ODCP correctly interpreted the D.C. Spouse Equity

Act to preclude recognition of posthumous nunc pro tunc orders. Accordingly, Plaintiff’s motion

for summary judgment is denied and Defendants’ cross-motions for summary judgment are

granted.

       A separate Order consistent with this Memorandum Opinion will follow.

       June 14, 2013




                                                   BARBARA J. ROTHSTEIN
                                                   UNITED STATES DISTRICT JUDGE




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