                 NOTE: Pursuant to Fed. Cir. R. 47.6, this disposition
                   is not citable as precedent. It is a public record.


    United States Court of Appeals for the Federal Circuit

                                       06-3073

                              KATHRYN A. HINOJOSA,

                                                             Petitioner,


                                           v.


                     OFFICE OF PERSONNEL MANAGEMENT,

                                                             Respondent.


                           __________________________

                           DECIDED: November 9, 2006
                           __________________________


Before LOURIE, RADER, and SCHALL, Circuit Judges.

SCHALL, Circuit Judge.


                                      DECISION

      Kathryn A. Hinojosa petitions for review of the final decision of the Merit Systems

Protection Board (“Board”) that affirmed the reconsideration decision of the Office of

Personnel Management (“OPM”) denying Ms. Hinojosa’s application for a former

spouse survivor annuity.   Hinojosa v. Office of Pers. Mgmt., No. CH0831050485-I-1

(M.S.P.B. October 4, 2005) (“Final Decision”). We affirm.
                                      DISCUSSION

                                            I.

       Ms. Hinojosa is the former spouse of Enrique Hinojosa (“Mr. Hinojosa”), who

retired from federal service as an air traffic controller on March 3, 2003. At the time of

his retirement, Mr. Hinojosa elected to receive a reduced annuity with a survivor benefit

for Ms. Hinojosa. On July 21, 2003, Mr. and Ms. Hinojosa divorced, and the Court of

Common Pleas for Sandusky County, Ohio (“state court”) issued a divorce decree,

entitled Consent Final Judgment Entry (“July Order”).       The July Order contained a

division of the marital property, including pension benefits, specifically stating that Ms.

Hinojosa was awarded “50% of the marital portion” of Mr. Hinojosa’s “retirement

benefit.”   The July Order provided that the parties were to agree on a Qualified

Domestic Relations Order (“QDRO”) and outlined several assumptions to govern the

QDRO, including one stating that “the benefits assigned to the alternate payee (Wife)

shall include any and all temporary and supplemental benefits.” The July Order also

specified that the state court retained “jurisdiction with respect to the QDRO to the

extent required to maintain its qualified status and original intent of the parties” and

“jurisdiction to enter further orders as are necessary to enforce the assignment of the

benefits” to Ms. Hinojosa. The July Order also provided that Mr. Hinojosa “shall not

take actions, affirmative or otherwise, that can circumvent the terms and provisions of

the [QRDO], or that may diminish or extinguish the rights and entitlements” of Ms.

Hinojosa.

       On August 8, 2003, Mr. Hinojosa married Vallie Valentine. On October 29, 2003,

the state court issued the QDRO (“October Order”), which provided that Ms. Hinojosa




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would receive the maximum possible former spouse survivor annuity unless Mr.

Hinojosa elected to provide a survivor annuity for a new spouse married after retirement

in which case Ms. Hinojosa would receive a pro-rata share of the former spouse

annuity.

       Ms. Hinojosa submitted both the July and October Orders to OPM when she

applied for a former spouse survivor annuity on June 29, 2005. OPM, in its February

14, 2005 reconsideration decision, denied Ms. Hinojosa’s claim for a survivor annuity,

finding that the July Order was the first order dividing marital property and that the

October Order was an impermissible modification of the July Order because, under 5

C.F.R. § 838.806, a first order dividing marital property cannot be modified after the

retirement or death of the employee. OPM also determined that the language of the

July Order did not expressly provide a former spouse survivor benefit, as required under

5 C.F.R. § 838.804.

       Ms. Hinojosa timely appealed to the Board. In an initial decision dated June 2,

2005, the administrative judge to whom the appeal was assigned sustained the

agency’s action. Hinojosa v. Office of Pers. Mgmt., No. CH0831050485-I-1 (M.S.P.B.

June 2, 2005) (“Initial Decision”). The Initial Decision became the final decision of the

Board on October 4, 2005 when the Board denied Ms. Hinojosa’s petition for review for

failure to meet the criteria for review set forth at 5 C.F.R. § 1201.115(d). Final Decision.

This appeal followed. We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(9).

                                             II.

       Our scope of review in an appeal from a decision of the Board is limited.

Specifically, we must affirm the Board’s decision unless we find it to be arbitrary,




06-3073                                      3
capricious, an abuse of discretion, or otherwise not in accordance with law; obtained

without procedures required by law, rule, or regulation having been followed; or

unsupported by substantial evidence. 5 U.S.C. § 7703(c); Kewley v. Dep’t of Health &

Human Servs., 153 F.3d 1357, 1361 (Fed. Cir. 1998).

      We held, in both Vaccaro v. Office of Personnel Management, 262 F.3d 1280,

1287 (Fed. Cir. 2001) and Rafferty v. Office of Personnel Management, 407 F.3d 1317,

1323 (Fed. Cir. 2005), that a second court order awarding a survivor annuity was an

improper modification of a first court order, which did not mention an annuity, under 5

U.S.C. § 8341(h)(4) and the pertinent OPM regulations, including 5 C.F.R. § 838.806.1

On appeal, Ms. Hinojosa argues that Vaccaro and Rafferty are distinguishable from her

case because Congress did not intend for section 8341(h)(4) to apply to parties who

were married at the time of retirement and who subsequently divorce as long as the

spouse did not waive her right to a survivor annuity, the modification does not increase

the survivor annuity beyond what was agreed to in the retirement application, and the



 1
      Section 8341(h)(4) states:
             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 effective—
             (A) if such modification is made after the retirement or death of the
             employee or Member concerned, and
             (B) to the extent that such modification involves an annuity under this
             subsection.
      In addition, section 838.806(b) provides:
             For purposes of awarding, increasing, reducing, or eliminating a former
             spouse survivor annuity, or explaining, interpreting or clarifying a court
             order 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 martial property of the retiree and the former
             spouse.


06-3073                                     4
employee has not died. Ms. Hinojosa therefore contends that the October Order did not

impermissibly modify the July Order in violation of section 8341(h)(4).

         Ms. Hinojosa’s contention is without merit for two reasons. First, Vaccaro and

Rafferty are not distinguishable from the present case because 5 C.F.R. § 838.806 lays

out specific requirements for court orders awarding survivor annuities based on the

timing and content of the court orders and not based on the funding of the annuities or

the employee’s death.       Second, the clear and unambiguous language of section

8341(h)(4) and 5 C.F.R. § 838.806 defeats Ms. Hinojosa’s arguments regarding

legislative history and Congressional intent because clear and unambiguous statutory

language must be interpreted according to its plainly-expressed terms. See Consumer

Reports Safety Comm’n v. GTE Sylvania, 447 U.S. 102, 108 (1980). We see no error in

the Board’s decision that the October Order was an impressible modification of the July

Order.

         Ms. Hinojosa alternatively argues that the July Order itself awarded Ms. Hinojosa

a survivor annuity. Specifically, Ms. Hinojosa maintains that the language in the order

“any and all temporary and supplemental benefits” and the prohibition against Mr.

Hinojosa taking “actions, affirmative or otherwise, that can circumvent the terms and

provisions of the [QRDO], or that may diminish or extinguish the rights and entitlements

of the non-participant (Wife)” expressly provide for a survivor annuity. Even though we

held that “magic words” are not required to award a survivor annuity, a court order or

settlement agreement must contain a “clause which could fairly be read as awarding a

[Civil Service Retirement System] survivor annuity.” Fox v. Office of Pers. Mgmt., 100




06-3073                                      5
F.3d 141, 145-46 (Fed. Cir. 1996). Here, the July Order contains no term that could be

fairly read to award a survivor annuity.

         Finally, we have considered Ms. Hinojosa’s claim that the state court in the July

Order reserved jurisdiction to award Ms. Hinojosa a survivor annuity in the October

Order.     Ms. Hinojosa’s argument that a reservation of jurisdiction is permissible is

directly contrary to OPM regulations. OPM regulations disallow the use of reservations

since an order awarding a survivor annuity must be the first order and the first order

does not include any court order issued under reserved jurisdiction. See 5 C.F.R. §§

838.806, 838.1004(e)(4)(ii)(B); see also Rafferty, 407 F.3d at 1323. The state court

therefore could not properly reserve jurisdiction to award Ms. Hinojosa a survivor

annuity.

         For the foregoing reasons, the final decision of the Board is affirmed.

         Each party shall bear its own costs.




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