                           District of Columbia
                            Court of Appeals
No. 15-FM-938
                                                                    JUN 23 2016
MARCIA OSHINAIKE,
                                 Appellant,

      v.                                            DRB-3663-14

SOLOMON ADEDOLAPO OSHINAIKE,
                    Appellee.

                        On Appeal from the Superior Court
                            of the District of Columbia

            BEFORE: BLACKBURNE-RIGSBY and MCLEESE, Associate Judges;
and KING, Senior Judge.

                                 JUDGMENT

               This case came to be heard on the transcript of record and the briefs
filed, and was argued by counsel. On consideration whereof, and for the reasons
set forth in the opinion filed this date, it is now hereby

             ORDERED and ADJUDGED that the judgment of the trial court is
reversed, and the case is remanded for the trial court to revise the divorce decree to
reflect appellee’s waiver of any right to appellant’s Foreign Service pension,
annuity, and survivor’s benefits.

                                          For the Court:




Dated: June 23, 2016.

Opinion by Associate Judge Roy W. McLeese.

Dissenting opinion by Senior Judge Warren R. King.
Notice: This opinion is subject to formal revision before publication in the
Atlantic and Maryland Reporters. Users are requested to notify the Clerk of the
Court of any formal errors so that corrections may be made before the bound
volumes go to press.

            DISTRICT OF COLUMBIA COURT OF APPEALS

                                 No. 15-FM-938                         6/23/16

                        MARCIA OSHINAIKE, APPELLANT,

                                       V.

                  SOLOMON ADEDOLAPO OSHINAIKE, APPELLEE.

                         Appeal from the Superior Court
                          of the District of Columbia
                                (DRB-3663-14)

                    (Hon. Peter A. Krauthamer, Trial Judge)


(Argued January 20, 2016                                    Decided June 23, 2016)

      Emily Stolzenberg, with whom Jonathan M. Dana was on the brief, for
appellant.

      Chidi A. Ogolo for appellee.

      Before BLACKBURNE-RIGSBY and MCLEESE, Associate Judges, and KING,
Senior Judge.

      Opinion for the court by Associate Judge MCLEESE.

      Dissenting opinion by Senior Judge KING at page 11.
                                       2

      MCLEESE, Associate Judge: Appellant Marcia Oshinaike seeks review of the

trial court’s ruling that Ms. Oshinaike’s former husband, appellee Solomon

Oshinaike, did not waive his rights with respect to retirement benefits that Ms.

Oshinaike accrued as a Foreign Service officer. We reverse.



                                           I.



      Mr. Oshinaike and Ms. Oshinaike married in 1989.          At that time, Ms.

Oshinaike worked for a private employer.        Ms. Oshinaike joined the State

Department in 1992 and became a Foreign Service officer in 2005. In 2011, the

Oshinaikes executed an agreement concerning the assignment of property in the

event of divorce.   That agreement states, among other things, that “Solomon

Oshinaike waives all rights to Marcia Oshinaike’s pension and survivor benefits.”

In 2013, the parties executed a similar agreement stating, among other things, that

Mr. Oshinaike “waive[s] all rights to Marcia Oshinaike’s pension, federal health

benefits, annuity, and survivor benefits.” Both agreements also included language

indicating that Ms. Oshinaike waived her rights to Mr. Oshinaike’s corresponding

benefits.
                                       3

      Ms. Oshinaike filed for divorce in 2014. During the divorce proceedings,

Ms. Oshinaike sought a declaration that Mr. Oshinaike had validly waived his right

to retirement benefits that Ms. Oshinaike had accrued as a Foreign Service officer.

The trial court held an evidentiary hearing on the motion. In pertinent part, Ms.

Oshinaike testified as follows. Ms. Oshinaike drafted both agreements, which

were intended to provide for a division of property that would avoid a contested

divorce. At the time of the agreements, Ms. Oshinaike’s only pension and survivor

benefits arose from her employment with the Department of State and as a Foreign

Service officer.   Mr. Oshinaike knew that Ms. Oshinaike was in the Foreign

Service and that she had only one pension. Mr. and Ms. Oshinaike discussed the

agreements, and Mr. Oshinaike understood them. It was very clear to both Mr. and

Ms. Oshinaike that the agreements referred to Ms. Oshinaike’s Foreign Service

pension.



      Mr. Oshinaike testified that he was aware that Ms. Oshinaike worked in the

Foreign Service and that she had a pension because of that employment. Mr.

Oshinaike believed that his wife had some kind of benefits or saving plan in

connection with her prior private employment, but he was not sure about the nature

of those benefits. Mr. Oshinaike believed that Ms. Oshinaike had retirement

benefits from her initial employment with the State Department that were separate
                                          4

from Ms. Oshinaike’s retirement benefits as a Foreign Service officer.         Mr.

Oshinaike did not intend to waive his rights with respect to Ms. Oshinaike’s

Foreign Service pension.       Moreover, Mr. Oshinaike did not understand the

agreements to waive those rights, because such a waiver must be explicitly stated

and the agreements do not specifically state that Mr. Oshinaike was waiving his

rights to that pension.



      The trial court ruled as a matter of law that the agreements do not validly

waive Mr. Oshinaike’s rights with respect to Ms. Oshinaike’s Foreign Service

pension. The trial court explained that, under 22 U.S.C. § 4054(a) (2006), an

agreement to waive spousal rights to a Foreign Service pension must “expressly

provide[]” for such waiver. In the trial court’s view, such a waiver must include a

specific reference to a Foreign Service pension. Because the agreements in this

case do not specifically mention a Foreign Service pension, the trial court found

them legally inadequate to waive Mr. Oshinaike’s rights with respect to Ms.

Oshinaike’s Foreign Service pension. The trial court subsequently incorporated

that ruling into the final decree of divorce.
                                         5



                                          II.



      Ms. Oshinaike argues that the trial court erred by interpreting 22 U.S.C.

§ 4054(a) to require that a valid waiver of spousal rights make specific reference to

a Foreign Service pension. The proper interpretation of a statute is an issue of law

that we decide de novo. See, e.g., Eaglin v. District of Columbia, 123 A.3d 953,

955 (D.C. 2015).



      As previously noted, section 4054(a) requires that a spousal agreement to

waive rights to a Foreign Service pension must “expressly provide[]” for such

waiver. At first blush, the waivers in this case seem unambiguously to reach Ms.

Oshinaike’s Foreign Service pension, given the sweeping phrase “all rights” and

the specific reference to pension, annuity, and survivor benefits. See, e.g., DeRyke

v. Teets, 702 S.E.2d 205, 206-07 (Ga. 2010) (separation agreement providing that

“Each Party expressly waives all of his or her right, title, and interest in and to any

pension, profit sharing, or employee benefits plans of the other Party” was

“complete, clear, and unambiguous”) (internal quotation marks omitted); see

generally, e.g., Monsanto Co. v. C.E. Heath Comp. & Liability Ins. Co., 652 A.2d

30, 35 n.5 (Del. 1994) (“[T]he word ‘all’ is sometimes said to be the most
                                        6

comprehensive in the English language; it denotes the ‘whole number of,’ ‘each’

and ‘every.’”) (internal quotation marks omitted).



      In the trial court, Mr. Oshinaike suggested that the references in the

agreements to “pension” related to Ms. Oshinaike’s retirement benefits arising

from her private employment and her employment in the State Department before

she became a Foreign Service officer. That suggestion seems debatable at best,

given the term “any” and other language in the agreements, including the plural

term “benefits.”   In any event, Mr. Oshinaike does not explicitly renew that

suggestion in his brief in this court. Moreover, Mr. Oshinaike acknowledges that

the agreements are correctly understood to be unambiguous.



      We therefore turn to the argument Mr. Oshinaike does advance on appeal:

that a valid waiver under section 4054(a) requires specific reference to Foreign

Service retirement benefits. That appears to be an issue of first impression. We

once previously construed section 4054(a), in Angulo v. Gochnauer, 772 A.2d 830

(D.C. 2001).    Although the separation agreement in Angulo contained some

sweeping general language and was in some respects detailed, the agreement did

not specifically refer to retirement and pension benefits at all. Id. at 832-33, 836.

We held that the separation agreement therefore did not waive Foreign Service
                                        7

retirement benefits. See id. We did not decide whether specific reference to

Foreign Service retirement benefits was required, or whether instead an

unambiguous waiver of all retirement benefits would suffice. Id. Several other

courts have also construed section 4054(a), but as far as we are aware none has

addressed the precise issue before us. See id. at 835-36 (citing cases).



      We conclude that an unambiguous waiver of all pension, annuity, and

survivor benefits suffices under section 4054(a).       We recognize that section

4054(a) is intended to protect Foreign Service spouses and therefore should be

“strictly construed.”   Angulo, 772 A.2d at 835.        In our view, however, the

legitimate interests of Foreign Service spouses will not be undermined by

enforcing unambiguous waivers that specifically refer to all pension, annuity, and

survivor benefits. Moreover, we find persuasive the weight of authority from other

jurisdictions addressing whether a waiver of retirement or similar benefits was

sufficiently clear or explicit. See, e.g., Diversified Inv. Advisors, Inc. v. Baruch,

793 F. Supp. 2d 577, 581-82 (E.D.N.Y. 2011) (although broad waivers of claims,

rights, or property are inadequate under New York law, “[o]verwhelming authority

supports the proposition that a waiver [in a separation agreement] is sufficiently

explicit when it describes a precise category of claims to which rights are waived,

without expressly naming a specific instrument”) (citing cases); Metropolitan Life
                                        8

Ins. Co. v. Flusty, 545 F. Supp. 2d 624, 626, 629-30 (E.D. Mich. 2008) (separation

agreement providing that “any right” in any life-insurance policy or annuity was

“extinguished” was sufficiently explicit under Michigan law; “There is no magic

language that must be included to effectively waive a person’s interest in plan

proceeds.   Rather, courts that have examined what constitutes a waiver have

consistently stated that a waiver must simply be explicit, voluntary and made in

good faith. . . . ‘Explicit’ means that the divorce decree is not completely silent on

the issue of insurance proceeds. However, there are no specific words that must be

included. In determining if a waiver exists, a court must determine if a reasonable

person would have understood that she was waiving her beneficiary interest in the

life insurance policy at issue.”) (brackets and internal quotation marks omitted);

cf., e.g., Fox v. OPM, 100 F.3d 141, 142-44 (Fed. Cir. 1996) (separation agreement

that referred to survivor’s benefit plan but did not mention Civil Service

Retirement System (CSRS) “expressly provided” that former spouse was entitled

to benefit under CSRS; “magic words” are not necessary for agreement to

expressly provide for benefits) (citing administrative decisions).



      In arguing that specific reference to the Foreign Service is required, Mr.

Oshinaike relies heavily on statements to that effect in a handbook issued by the

State Department and in articles in the Foreign Service Journal and the American
                                       9

Foreign Service Association Newsletter. In response, Ms. Oshinaike argues that

the cited materials were not admitted into evidence at trial, have not been

authenticated, are not authoritative, and postdate the agreements at issue in this

case. Even leaving aside Ms. Oshinaike’s other objections, we agree with Ms.

Oshinaike that the cited materials are not entitled to significant weight. The cited

materials do not reflect formal agency action, and are thus not entitled to the

substantial deference that in some circumstances is accorded to formal agency

action under Chevron U.S.A. Inc. v. Natural Resources Defense Council, 467 U.S.

837 (1984). See, e.g., United States v. Mead Corp., 533 U.S. 218, 227-34 (2001)

(declining to give Chevron deference to informal agency ruling letter); cf. Nunnally

v. District of Columbia Metro. Police Dep’t, 80 A.3d 1004, 1013 & n.17 (D.C.

2013) (declining to give substantial deference to agency general order that

“essentially serves the purpose of an internal operating manual”) (internal

quotation marks omitted).     An informal agency interpretation, including one

reflected in an “agency manual[],” will in some circumstances be given a lesser

degree of deference, “proportional to its power to persuade.” Mead, 533 U.S. at

234, 235. The deference to be given such an interpretation “will depend upon the

thoroughness evident in its consideration, the validity of its reasoning, [and] its

consistency with earlier and later pronouncements.” 1303 Clifton St., LLC v.

District of Columbia, 39 A.3d 25, 31 (D.C. 2012) (internal quotation marks
                                       10

omitted). Mr. Oshinaike has not provided this court with the materials on which he

relies, and his description of those materials gives us no basis upon which to

accord the materials persuasive weight. Cf., e.g., Prochazka v. United States, 104

Fed. Cl. 774, 798 (2012) (“[I]nternal agency memoranda typically are not entitled

to deference, particularly when they concern agency personnel policies that are

never exposed to the light of formal rulemaking, but remain embedded in policy

statements, handbooks, directives, and the like.”) (brackets and internal quotation

marks omitted; citing cases).



      Mr. Oshinaike defends the judgment solely on the ground that his waiver

was as a matter of law insufficiently explicit to satisfy the requirements of section

4054(a). Because we conclude to the contrary, we reverse the judgment and

remand the case for the trial court to revise the divorce decree to reflect Mr.

Oshinaike’s waiver of any right to Ms. Oshinaike’s Foreign Service pension,

annuity, and survivor’s benefits.



                                                    So ordered.
                                               11

 1
 2         KING, Senior Judge, dissenting. 22 U.S.C. § 4054 (a)(1) (2006)1 requires

 3   that, in order to waive one’s property right in a spouse’s foreign service pension,

 4   he or she must do so expressly. I would find, as a matter of law, that the attempted

 5   waiver here was not “express.” I agree with the trial court that such a waiver must

 6   include a specific reference to the Foreign Service pension in order to be valid.


 7


 8         While the majority makes little of Angulo v. Gochnauer, 772 A.2d 830 (D.C.

 9   2001), I find it most helpful. The majority distinguishes Angulo, where this court

10   found that there was no express waiver, because the agreement in that case did not

11   use the word “pension” while the agreement between the Oshinaikes does.

12   However, the agreement in Angulo was also different from the Oshinaikes’

13   agreement because it was more detailed and comprehensive.2 I am persuaded that,


     1
       “Unless otherwise expressly provided by any spousal agreement. . . a former
     spouse of a participant or former participant is entitled to an annuity. . . [assuming,
     as here, that period of service requirements are met].” 22 U.S.C. § 4054 (a)(1) .
     2
       The Angulo opinion described pertinent sections of the parties’ agreement as
     such:

                  The parties stated in a “whereas” clause of the property
                  settlement agreement that they desired ‘“to settle all
                  rights, interests and obligations between them and to
                  obtain a full, complete and final property settlement and
                  agreement, including a settlement of all property interests
     (continued . . . )
                                       12




                                                                ( . . . continued)
            and all claims between or against each other[.]”’ The
            agreement thereafter contained the following provisions
            upon which appellant relies:

            (3) Each party hereby forever discharges, relinquishes
            and releases all right, title and interest which he or she
            now has or ever had or ever may have in and to the real,
            personal and mixed property of the other; all rights of
            curtesy and dower; all right, title and interest which he or
            she has or may ever have in and to the property or estate
            of the other at death, all right and interest to take against
            the other's will or under the intestate laws, and each and
            every other claim of right, title or interest he or she has or
            may ever have against the other....

            (6) Each party hereby agrees that no support or alimony
            shall be payable to either party by the other.

            (7) Each party further agrees that neither party shall
            maintain any form of insurance for the benefit of the
            other party. From the date of this agreement, neither
            party shall have any right or claim in any insurance
            policy of the other party...

            (11) The parties hereto shall and will at any time or times
            hereinafter make, execute and deliver any and all such
            further instruments and things as the other of such parties
            shall require for the purpose of giving full effect to these
            presents, and to the covenants and agreements thereof.

Angulo, 772 A.2d at 832-33.
                                            13

1   where even a waiver as detailed as the one in Angulo is not deemed “express” by

2   this court, the Oshinaikes’ similar, formulaic recitations should not be either.3



    3
        The entirety of the Oshinaikes’ November 2011 agreement read as follows:

                  Solomon Oshinaike waives all rights to Marcia
                  Oshinaike’s pension and survivor benefits.

                  Marcia Oshinaike waives all rights to Solomon
                  Oshinaike’s pension and survivor benefits.

                  Solomon Oshinaike waives all rights to Marcia
                  Oshinaike’s residence located at 2220 Quincy NE,
                  Washington, DC; there are no martial property issues to
                  be resolved.

                  Marcia Oshinaike waives all rights to Solomon
                  Oshinaike’s property in Lagos, Nigeria; there are no
                  property issues to be resolved.

                  There are no alimony or child support issues to be
                  resolved.

                  There are no marital or personal dept [sic] issues to be
                  resolved. Marcia Oshinaike and Solomon Oshinaike are
                  responsible for their own dept’s [sic] incurred in their
                  names.

    The Oshinaikes’ 2013 agreement, which was said to act as a “continuation” of the
    2011 agreement simply repeated most of the same language as the 2011 agreement
    and read as follows:

                  I, Solomon Oshinaike, waive all rights to Marcia
                  Oshinaike’s pension, federal health benefits, annuity, and
                  survivor benefits.

    (continued . . . )
                                           14

1


2         I find it significant that we did not hold in Angulo that there was no express

3   waiver solely on the ground that the words “Foreign Service” were missing; nor

4   did we hold that there was no express waiver because the word “pension” was

5   missing. I think it unwise to decide this case, as the majority does, on the ground

6   that the word “pension” was used here.         Such a holding only invites more

7   confusion. One need not stretch the imagination to come up with a number of

8   circumstances that would be just as uncertain to this court, and just as much a


                                                                        ( . . . continued)
                I, Marcia Oshinaike, waive all rights to Solomon
                Oshinaike’s pension, federal health benefits, annuity, and
                survivor benefits.

                I, Solomon Oshinaike, waive all rights to the residence
                and property located at 2220 Quincy Street NE,
                Washington, DC 20018; there are no property issues to
                be resolved.

                I, Marcia Oshinaike, waiver [sic] all rights to Solomon
                Oshinaike’s property in Lagos, Nigeria; there are no
                property issues to be resolved.

                There are no alimony or child support issues to be
                resolved.

                There are no marital or personal debt issues to be
                resolved. Marcia Oshinaike and Solomon Oshinaike are
                responsible for their own debt’s [sic] incurred in their
                names.
                                            15

1   question of first impression. For example, applying the majority opinion in this

2   case, what if the word pension is used in some existing or future agreement but

3   there is more than one pension in existence at the time of the agreement? What if

4   the word pension is not used but the words “Foreign Service” are? I think the

5   better course, and in line with both Angulo and our requirement to strictly construe

6   the Act4, is to hold that express waiver of the right to the pension in question under

7   the Act requires specific mention of the Foreign Service pension and no less.


8


9         For these reasons, I dissent.




    4
     The majority acknowledges that the Act must be “strictly construed.”             See
    majority opinion at 7 citing Angulo, 772 A.2d at 835.
