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             DISTRICT OF COLUMBIA COURT OF APPEALS

                                  No. 14-SP-117

                           CHERYL RIVERA, APPELLANT,

                                         V.

                           JACK LEW, et al., APPELLEES.

                                  On Certification
                     from the United States Court of Appeals
                        for the District of Columbia Circuit
                                (Case No. 13-5222)

(Submitted March 13, 2014                            Decided September 11, 2014)

      Ronald C. Machen Jr., United States Attorney, and R. Craig Lawrence and
Alan Burch, Assistant United States Attorneys, filed a motion for summary
affirmance on behalf of the federal appellees.

       Lonie Anne Hassel and Julia E. Zuckerman filed a motion for summary
affirmance on behalf of appellees District of Columbia Retirement Board and
District of Columbia Police Officers‟ and Firefighters‟ Retirement Plan.

      Raymond S. Dietrich filed an opposition to the motions for summary
affirmance on behalf of appellant.1


      1
         These motions and the opposition were filed in the United States Court of
Appeals for the District of Columbia Circuit. The parties have filed a joint
statement advising that these papers and the record in the United States District
Court provide this court with all that it needs to decide the certified question. See
D.C. App. R. 22 (a)(2).
                                            2


     Before WASHINGTON, Chief Judge, and FISHER and EASTERLY, Associate
Judges.

      FISHER, Associate Judge: Pursuant to D.C. Code § 11-723 (2012 Repl.), the

United States Court of Appeals for the District of Columbia Circuit certified the

following question of law to this court:



             When a District of Columbia employee dies while still
             employed, must the Mayor comply with a posthumously-
             issued nunc pro tunc court order that on its face relates
             back to a date before the employee‟s death and
             retroactively amends a divorce settlement agreement to
             provide the employee‟s former spouse with entitlement to
             benefits in a way that is inconsistent with the last benefits
             election executed by the employee prior to his death?
             See D.C. Code §§ 1-529.02(c), 1-529.03(b), (c).



We answer that the Mayor need not comply with such an order, reserving an issue

that is not presented by the facts of this case.



                                I. Legal Framework



                              A. The Retirement Plan



      The District of Columbia Retirement Board (DCRB) is responsible for

managing the retirement assets of the District of Columbia‟s judges, teachers,
                                         3


firefighters, and police officers. D.C. Code §§ 1-711 to 1-716 (2006 Repl. & 2009

Supp.).    In administering the District of Columbia Police Officers‟ and

Firefighters‟ Retirement Plan, the DCRB must “determine the amount of any

payments for annuities or other retirement or disability benefits.” D.C. Code

§ 1-903.04 (a) (2006 Repl.). As part of this determination, “the Board may make

reasonable interpretations of and implement all governing authorities.” D.C. Code

§ 1-711 (e) (2009 Supp.).       “Although our review of legal issues (such as

interpretation of statutes and regulations) is de novo, we defer to the agency‟s

interpretation of the statute and regulations it is charged by the legislature to

administer, unless its interpretation is unreasonable or is inconsistent with the

statutory language or purpose.” District of Columbia Office of Human Rights v.

District of Columbia Dep’t of Corr., 40 A.3d 917, 923 (D.C. 2012).          “That

deference is based on the agency‟s presumed expertise in construing the statute it

administers.” Id. (internal quotation marks omitted).



      The United States Treasury Department‟s Office of D.C. Pensions (ODCP)

is responsible for benefits accrued for service rendered by District of Columbia

firefighters and police officers prior to June 30, 1997. See D.C. Code §§ 1-

801.02 (10), 1-803.01 (a), and 1-803.02 (2006 Repl.). Thus, when an employee‟s

service occurred before and after June 30, 1997, his benefits are partly the
                                          4


responsibility of a federal agency (ODCP) and partly the responsibility of a district

agency (DCRB). See D.C. Code § 1-803.02 (d) (2006 Repl.). Although the initial

benefit determinations are made by the DCRB, each agency conducts an

independent review based on its own statutes and regulations before issuing

separate rulings on appeal. See D.C. Code §§ 1-805.01 to .02 (2006 Repl.);

31 C.F.R. §§ 29.404-05 (2009). These agencies coordinated their decisions in this

matter, but the certified question only asks us to interpret District of Columbia law.



      When a member of the District of Columbia Police Officers‟ and

Firefighters‟ Retirement Plan dies before retirement, each of his survivors is

entitled to an annuity that “shall begin on the day after the date on which the

member or former member dies[.]” D.C. Code § 5-716 (e)(1), (2) (2009 Supp.).

“The term „survivor‟ means a person who is entitled to [an] annuity . . . based on

the service of a deceased member[,]” and is limited to a plan member‟s surviving

children, 2 widow, or widower.     D.C. Code §§ 5-701 (8), 5-716 (b)-(c) (2009

Supp.). If a member “dies prior to retirement leaving no survivor entitled to

receive an annuity[,] . . . all deductions for retirement made from the salary of such


      2
        Children qualify as survivors while living, unmarried, and under the age of
eighteen (or twenty-two if a full-time student or any age if incapable of self-
support due to a disability incurred before reaching the age of eighteen).
D.C. Code § 5-716 (e)(2)-(3) (2009 Supp.).
                                          5


deceased member” shall be paid “[t]o the beneficiary or beneficiaries designated in

writing by such member[.]” D.C. Code § 5-706 (c) (2008 Supp.). As the law

indicates, a designated beneficiary may only receive this lump sum payment of

retirement contributions when a plan member dies without leaving survivors

eligible to receive a survivor annuity.



                     B. The Spouse Equity Amendment Act



      Noting that “[c]ourt orders purporting to award a survivor annuity to a

former spouse are currently unenforceable[,]” the Council of the District of

Columbia adopted the Spouse Equity Amendment Act of 1988 in order “to

conform the District‟s remaining retirement systems as much as possible with the

changes made in” the federal Civil Service Retirement System that, “among other

things, . . . permit[] a court to award survivor annuities to former spouses[.]”

D.C. Council, Report on Bill 7-389, District of Columbia Spouse Equity

Amendment Act of 1988, at 1 (October 27, 1988) (emphasis in original). Under this

law, however, a former spouse is not entitled to a survivor annuity unless a

“qualifying court order” (sometimes referred to as a “QDRO”) “by its terms

awards to a former spouse . . . a survivor annuity.” D.C. Code § 1-529.02 (c)

(2001).
                                           6




      Modeled after a federal statute enacted in 1978, the Spouse Equity

Amendment Act of 1988 requires the Mayor to “comply with any qualifying court

order that is issued prior to the employee‟s retirement.” D.C. Code § 1-529.03 (b)

(2001). The Mayor is also required to “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 (c) (2001). Neither the

original federal statute nor the Spouse Equity Amendment Act of 1988 explicitly

addressed whether court orders issued after the death of an employee who has not

yet retired are enforceable.



      Noting this lack of clarity, Congress amended federal pension law in 1986.

A summary of the amendment identified the statutory “inconsistency” under which

“a court order could be changed following the death of an employee who has not

yet retired[,]” but could not be “amended after the employee‟s retirement[.]”

131 Cong. Rec. S18098 (daily ed. Dec. 19, 1985) (section-by-section summary of

Senate committee amendment to H.R. 3384). For this reason, Congress amended

the statute in order to “bar[] changes in court orders after an employee‟s death as

well as after retirement.” Id.; see 5 U.S.C. § 8341 (h)(4) (2009) (the election “shall
                                          7


not be effective . . . if such modification is made after the retirement or death of

the employee”) (emphasis added). Likewise, “[a] court order awarding a former

spouse [a] survivor annuity” may not be processed under federal regulations “if it

is issued after the date of retirement or death of the employee and modifies or

replaces the first order dividing the marital property of the employee or retiree and

the former spouse.”     5 C.F.R. § 838.806 (a) (2009).       No similar statutes or

regulations focusing on the death of the employee have been adopted by the Mayor

or Council of the District of Columbia.



                    II. Factual and Procedural Background



      Although we have been asked to answer a question of law, it will be helpful

to place that issue in its factual context. Luis Rivera was an active Metropolitan

Police Department officer and a member of the District of Columbia Police

Officers‟ and Firefighters‟ Retirement Plan when he died on December 1, 2009.

He had been married to Cheryl Rivera from October 10, 1992, until February 27,

2009, when the Circuit Court of Brevard County, Florida, issued a final judgment

dissolving their marriage.     That judgment also ratified and incorporated a

Property/Asset Settlement Agreement. Neither the judgment nor the agreement

mentioned a survivor annuity for Ms. Rivera in the event of Mr. Rivera‟s death.
                                          8


Instead, the settlement agreement states that “the wife is entitled to and shall

receive her half marital portion of the husband‟s Washington D.C.‟s Police

Department Pension[,]” and provides a formula for calculating the amount of that

portion. This provision of the agreement refers to a payment wholly distinct from

a survivor annuity. See D.C. Code § 1-529.02 (c) (2001).



      At the time of his death, Luis Rivera was unmarried and had two children: a

daughter by Ms. Rivera and a son by Lourdes Lopez. Each child was entitled to a

survivor annuity. Ms. Rivera also sought a survivor annuity as a former spouse,

but the DCRB denied this claim because none of the supporting documents

Ms. Rivera provided “constitute[d] a QDRO (either separately or together) as

required under the District of Columbia Spouse Equity Act of 1988 (see D.C. Code

§§ 1-529.01 et seq.).” Without an approved QDRO, the DCRB explained, it “must

look to the language of the Settlement Agreement to determine whether there is

clear intent as to the survivor benefit, and to the provisions of the Plan related to

who is eligible for survivor benefits when a participant dies before retiring.” 3

Based on this analysis, it determined that Ms. Rivera was not entitled to a survivor

annuity.


      3
         Although the statute refers to a “survivor annuity,” the DCRB commonly
uses the term “survivor benefit” to describe the same thing.
                                         9




      On July 2, 2010, Ms. Rivera, through her attorney, requested that the DCRB

stipulate to the entry of a nunc pro tunc QDRO, with the explanation that “[t]he

parties intended for Ms. Rivera to receive survivor benefits from the plan.”

(Emphasis in original.) She contended that this intent is “confirmed by the fact

that [Mr. Rivera] designated Cheryl Rivera as the beneficiary under the plan and he

declined to change the beneficiary designation after his divorce.” Here, Ms. Rivera

was referring to a form in which Mr. Rivera designated her to receive the “refund”

of contributions that would be made if he died without leaving a survivor entitled

to receive a survivor annuity.



      The DCRB “reviewed the request and [was] unable to accept the QDRO as it

is written.” Although the DCRB “recognize[d] that a QDRO may be issued after

the death of a plan participant, [Ms. Rivera‟s] proposed QDRO includes a spousal

survivor benefit that was not included in the parties‟ Property/Asset Settlement

Agreement.” 4 Furthermore, the DCRB was not convinced that the beneficiary

designation form “clearly confirms the parties‟ intention for Ms. Rivera to receive


      4
        The DCRB did not explain the circumstances in which a QDRO could be
issued after an employee‟s death. It did, however, make clear that this particular
posthumous order could not be enforced.
                                          10


spousal survivor benefits under the Plan.       In fact, the Plan‟s Designation of

Beneficiary form clearly states that . . . the beneficiary designation does not affect

the rights of any survivors who may qualify for annuity benefits.”               This

designation has no effect on survivor benefits because a designated beneficiary

only receives a lump sum payment of retirement contributions when the plan

member “dies prior to retirement leaving no survivor entitled to receive” a survivor

annuity. See D.C. Code § 5-706 (c) (2008 Supp.). The DCRB later noted that, if

anything, the designation of Ms. Rivera as the beneficiary of a lump sum payment

of retirement contributions demonstrated Mr. Rivera‟s intent that she not receive a

survivor annuity (“If he intended that you would receive a survivor annuity, there

would be no need to also provide that you would receive these retirement

contributions, because you could not get both.”).



      After receiving the DCRB‟s response, Ms. Rivera moved for the entry of her

proposed QDRO, nunc pro tunc, in the Circuit Court of Brevard County, Florida,

arguing that “[t]he parties intended for CHERYL RIVERA to receive survivor

benefits under the Plan when they entered into their marital settlement agreement

on March 6, 2008.” In support of this contention, Ms. Rivera submitted the same

beneficiary designation form she had previously sent to the DCRB. She also

attached her own affidavit and the affidavit of her former husband‟s attorney, both
                                          11


indicating that the parties intended to include a QDRO that provided survivor

benefits for Ms. Rivera in the original Property/Asset Settlement Agreement. On

August 12, 2010, the Brevard County Circuit Court issued Ms. Rivera‟s proposed

QDRO, nunc pro tunc to February 27, 2009.



      When Ms. Rivera submitted a copy of the nunc pro tunc domestic relations

order (DRO), the DCRB informed her that it and the ODCP would each separately

“consider the . . . submission as an appeal of DCRB‟s . . . denial of your request for

a spousal survivor benefit pursuant to a DRO.” It also explained that “[i]f the

agencies determine that you are entitled to a spousal survivor benefit, the terms of

the Plan require that the benefits currently being paid to the two children be

significantly reduced.”   The DCRB subsequently denied Ms. Rivera‟s appeal,

noting that “[a]bsent a qualifying court order entered into prior to an active Plan

participant‟s death, survivor rights under the Plan are fixed at the time of the

participant‟s death by operation of law.” “At the time of Mr. Rivera‟s death,” the

DCRB added, “a qualifying DRO had not been submitted” and “[n]either the Plan

nor the Spouse Equity Act expressly define[s] a posthumous nunc pro tunc DRO as

a qualifying court order requiring compliance.” Thus, the DCRB again ruled that

Ms. Rivera did “not qualify as a former spouse for purposes of a survivor benefit

and DCRB cannot grant your request.”
                                         12




      Ms. Rivera sought judicial review in the United States District Court for the

District of Columbia by filing a civil action as authorized by the retirement statute.

See D.C. Code §§ 1-747 (a)(1)(B), 1-815.01 (a)(1), 1-815.02 (a) (2006 Repl.).

After that court granted the DCRB‟s motion for summary judgment, Ms. Rivera

appealed the ruling to the United States Court of Appeals for the District of

Columbia Circuit, which in due course presented us with the certified question of

law quoted above.



                                   III. Analysis



      In cases such as this one, we defer to the agency‟s interpretation of the

statute it administers, unless its interpretation is unreasonable or is inconsistent

with the statutory language or purpose. Nothing in the language or legislative

history of the Spouse Equity Amendment Act of 1988 indicates that a court order

like Ms. Rivera‟s must be enforced.



      Ms. Rivera points to the statutory language which requires the Mayor to

“comply with any qualifying court order that is issued prior to the employee‟s

retirement.” D.C. Code § 1-529.03 (b) (2001). She argues that the posthumous
                                          13


nunc pro tunc order issued on August 12, 2010, qualifies under this provision

because Mr. Rivera had not in fact retired prior to that date.             However,

Mr. Rivera‟s death precluded retirement, and it was eminently reasonable for the

DCRB to conclude that the posthumous order had not been “issued prior to the

employee‟s retirement.”



      The law also provides that the Mayor is permitted to comply with a

qualifying court order “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 (c) (2001).

Although the statute does not explicitly address how this provision applies when

the employee dies before retiring, we think it is sensibly construed like federal law.

Death, like retirement, establishes the demarcation line.



      Under federal law, posthumous orders purporting to amend a settlement

agreement were expressly rendered unenforceable by a 1986 amendment of the

U.S. Code and by subsequently promulgated federal regulations. These changes

were not incorporated into the District of Columbia‟s Spouse Equity Amendment

Act of 1988, however, and Ms. Rivera has argued that this was a conscious choice

by the Mayor and Council designed to permit such orders to be enforced. But we
                                          14


have often noted “the hazard of attempting to impute meaning to legislative

inaction unless it is absolutely clear the Council can be said to have known about

an issue, cared about it, and somehow dealt with it.” Sch. St. Assocs. Ltd. P’ship v.

District of Columbia, 764 A.2d 798, 812-13 (D.C. 2001). Moreover, we have seen

no evidence that the Council was aware of the federal clarifying amendments, and

we therefore cannot conclude that its failure to incorporate them demonstrates that

it intended a different result. In fact, one of the stated purposes of the District of

Columbia‟s statute was to conform to federal law, and we see no basis for inferring

from the Council‟s silence that it intended in this respect to diverge from that law.



      The DCRB deemed the survivor annuities payable under the retirement plan

to be “fixed” at the time of Mr. Rivera‟s death. Because the plan allows members

to provide a survivor annuity for former spouses, the DCRB looked for a QDRO

issued prior to Mr. Rivera‟s death that “by its terms” entitled his former spouse to

an annuity, and it examined the settlement agreement for “clear intent as to the

survivor benefit.” There was no such QDRO and the settlement agreement did not

mention a survivor annuity.



      Although Ms. Rivera attempted to generate a QDRO after Mr. Rivera‟s

death, these efforts were in vain. As the DCRB explained, “[n]either the Plan nor
                                         15


the Spouse Equity Act expressly define[s] a posthumous nunc pro tunc DRO as a

qualifying court order requiring compliance.” In fact, “[b]ased on the Spouse

Equity Act‟s plain statutory language,” Ms. Rivera‟s court order “is not a

qualifying court order.” This was a “reasonable interpretation” of “governing

authorities.” D.C. Code § 1-711 (e) (2009 Supp.).



      A contrary interpretation would indulge the fiction that a deceased employee

remains capable of retiring, allowing posthumous court orders to significantly

amend survivor annuities long after they should have been fixed. It would also

allow inconsistent determinations affecting plan beneficiaries, such as Mr. Rivera‟s

children, whose benefits are jointly administered by the DCRB and the ODCP.5



      It is not our role to decide this case, but only to determine whether the

Mayor must comply with a posthumously issued court order of the type described




      5
          In this case, 44.9123% of Mr. Rivera‟s service time occurred before
June 30, 1997, so the ODCP is responsible for that percentage of each survivor
annuity. However, federal law and regulations prohibit the ODCP from
recognizing the Florida court‟s posthumous order as a QDRO. Thus, an
interpretation requiring the DCRB to recognize that same order would cause a
direct conflict between the agencies that administer each portion of the survivor
annuity Ms. Rivera seeks.
                                          16


in the certified question of law. For the reasons described above, we answer that

he or she need not comply with such an order.6



      In accordance with D.C. Code § 11-723 (g) (2012 Repl.), the Clerk is

directed to transmit a copy of this opinion to the United States Court of Appeals for

the District of Columbia Circuit and to each of the parties.



                                      It is so ordered.




      6
         We reserve one question that is not presented by the facts of this case. A
genuine nunc pro tunc entry “„make[s] the record speak the truth by recording or
correctly evidencing an act done or judgment rendered by the court at a former
time and not carried into the record[.]‟” Appeal of A.H., 590 A.2d 123, 131 (D.C.
1991). However, “„[i]t is not the function of an order nunc pro tunc to alter the
judgment actually rendered. Its purpose is to merely correct the record of the
judgment.‟” Id. In other words, “„[n]othing can be entered nunc unless it actually
happened tunc.‟” Id. (quoting Council of Sch. Officers v. Vaughn, 553 A.2d 1222,
1231 (D.C. 1989) (Schwelb, J., concurring in part and dissenting in part)). We
express no views on whether the Mayor would be required to comply with a
posthumously issued order that truly qualified as a nunc pro tunc entry that should
have been made before the plan member‟s death.
