                         UNITED STATES OF AMERICA
                      MERIT SYSTEMS PROTECTION BOARD
                                      2015 MSPB 19

                            Docket No. DC-0843-14-0621-I-1

                                Stephen Edward Moss,
                                       Appellant,
                                            v.
                          Office of Personnel Management,
                                         Agency.
                                    February 24, 2015

           Stephen Edward Moss, Rockville, Maryland, pro se.

           Patrick Jennings, Washington, D.C., for the agency.

                                        BEFORE

                            Susan Tsui Grundmann, Chairman
                            Anne M. Wagner, Vice Chairman
                               Mark A. Robbins, Member



                                OPINION AND 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) denying his request to waive his potential future entitlement to a
     court-awarded former spouse survivor annuity so that he could receive an
     unreduced share of his former spouse’s current monthly retirement annuity. For
     the following reasons, we DENY the petition for review and AFFIRM the initial
     decision.
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                                      BACKGROUND
¶2         The appellant and his former spouse were divorced on December 8, 1997.
     Initial Appeal File (IAF), Tab 8 at 25-26. In conjunction with a Judgment of
     Absolute Divorce, the Circuit Court for Montgomery County, Maryland issued an
     order awarding the appellant both an apportionment of a retirement annuity and
     the maximum possible former spouse survivor annuity, with the cost of the
     survivor annuity to be deducted from his share of the retirement annuity.         Id.
     at 27-29.   The appellant’s former spouse retired under the Civil Service
     Retirement System (CSRS) on or about March 30, 2012.             Id. at 30-33.   The
     former spouse was unmarried and elected an annuity payable only during her
     lifetime and apparently did not inform OPM of the existence of the court order
     apportioning her annuity. Id. at 30-31. On or about April 17, 2013, the appellant
     contacted OPM about implementing the court order, and OPM verbally informed
     the appellant of the cost of his former spouse survivor annuity. See IAF, Tab 1
     at 19. On April 17, 2013, the appellant emailed to OPM a request to waive his
     future entitlement to his former spouse survivor annuity so that he could receive
     an unreduced share of the retirement annuity. IAF, Tab 7 at 7. He also submitted
     an affidavit on May 7, 2013, asking OPM to “irrevocably waive [his] right to
     [his] court-awarded CSRS survivor benefit award” because of health concerns
     and the “catastrophic” cost of the survivor annuity.      IAF, Tab 1 at 19. In an
     initial decision issued on July 3, 2013, OPM granted the appellant his
     court-awarded retirement and survivor annuity benefits and determined the
     monthly cost of the survivor annuity to be $598.       IAF, Tab 8 at 16-17.      The
     agency also denied his request to waive his survivor annuity. Id. On August 5,
     2013, the appellant requested reconsideration of OPM’s decision denying his
     request to waive his survivor annuity.      See IAF, Tab 1 at 13.       The agency
     affirmed its initial decision in a reconsideration decision, id. at 13-18; IAF, Tab 8
                                                                                           3

     at 10-15, * and the appellant appealed the reconsideration decision to the Board
     without requesting a hearing, IAF, Tab 1.
¶3         On appeal, the appellant argued that OPM erroneously denied his request to
     waive his entitlement to receive a former spouse survivor annuity and allow him
     to collect an unreduced share of his former spouse’s current retirement annuity.
     IAF, Tab 7 at 4-5. He contended that Clark v. Office of Personnel Management,
     120 M.S.P.R. 440 (2013), and Holly v. Office of Personnel Management,
     121 M.S.P.R. 134 (2014), support his argument that he has a statutory right to
     waive his survivor annuity under 5 U.S.C. § 8345(d). IAF, Tab 7 at 4-5. He also
     stated that the language of his irrevocable waiver “should be treated as surplusage
     in view of the Clark decision,” which held that 5 U.S.C. § 8345(d) does not
     authorize an irrevocable waiver of an annuity.         IAF, Tab 7 at 5; see Clark,
     120 M.S.P.R. 440, ¶ 9. In an initial decision based on the written record, the
     administrative judge affirmed OPM’s reconsideration decision.            IAF, Tab 12,
     Initial Decision (ID) at 1, 4. She relied on Clark in finding that OPM properly
     denied the appellant’s request to irrevocably waive his future entitlement to a
     court-awarded former spouse survivor annuity. ID at 3-4.
¶4         The appellant has filed a petition for review. Petition for Review (PFR)
     File, Tab 1. OPM has filed a response in opposition. PFR File, Tab 4.

                                          ANALYSIS
¶5         In his petition for review, the appellant argues that the administrative judge
     misinterpreted the Board’s case law and statutes. PFR File, Tab 1. He alleges
     that both Clark and Holly support his argument that 5 U.S.C. § 8345(d) provides
     him “the right to waive his entitlement to a survivor annuity at any time.” Id.

     *
       The appellant’s copy of the reconsideration decision is dated April 8, 2014, while the
     agency’s copy is dated March 18, 2014. IAF, Tab 1 at 13-18, Tab 8 at 10-15. Because
     the date of the reconsideration decision is immaterial to the outcome of this appeal and
     neither party raises it as an issue, we need not address this discrepancy further.
                                                                                     4

     at 6-7.   The appellants in this case and in Holly both received court orders
     pursuant to divorce proceedings that awarded a portion of their former spouse’s
     retirement annuity and the maximum survivor annuity, with the cost of the
     survivor annuity borne by the appellants. See Holly, 121 M.S.P.R. 134, ¶ 3; see
     also IAF, Tab 8 at 28. However, the Board held in Holly that the appellant could
     waive her entitlement to a court-awarded former spouse survivor annuity. Holly,
     121 M.S.P.R. 134, ¶ 14. OPM argues that Holly is distinguishable because the
     appellant there had the right to elect a survivor annuity through a property
     agreement incorporated by the court order, whereas the appellant here was
     awarded the survivor annuity without an election right. PFR File, Tab 4 at 10-11.
     We agree that this is a distinguishing factor between the cases.
¶6         A former spouse of a deceased employee or annuitant is entitled to a
     survivor annuity if and to the extent expressly provided for in the terms of “any
     decree of divorce or annulment or any court order or court-approved property
     settlement agreement incident to such decree.”         5 U.S.C. § 8341(h)(1).   A
     modification of the provisions involving an annuity in such a decree or order
     shall not be effective if made after the retirement or death of the employee
     concerned. 5 U.S.C. § 8341(h)(4); see 5 C.F.R. §§ 838.806(b), 838.1004(e)(1).
     The appellant in Holly did not attempt to alter the terms of the property
     settlement but simply exercised her election right.     Holly, 121 M.S.P.R. 134,
     ¶¶ 9-10. The Board in Holly found persuasive the appellant’s argument that the
     property settlement did not provide an unconditional or certain award of a
     survivor annuity.   Id.    Additionally, OPM’s regulations specifically allow a
     former spouse to irrevocably elect not to be eligible for a former spouse survivor
     annuity when a court order provides an election right. 5 C.F.R. § 838.932. In
     contrast, the appellant’s court order does not provide a right to elect a former
     spouse survivor annuity.    IAF, Tab 8 at 28.     Because the appellant’s former
     spouse has already retired, OPM must follow the terms of the court order. See
     5 U.S.C. § 8341(h)(4); see also 5 C.F.R. §§ 838.806(b), 838.1004(e)(1).
                                                                                       5

¶7         Furthermore, 5 U.S.C. § 8345(d) does not permit the appellant to waive his
     entitlement to a former spouse survivor annuity in order to increase his current
     share of a retirement benefit. Instead, the statute allows an individual entitled to
     an annuity to decline to accept payment of the annuity. 5 U.S.C. § 8345(d). Such
     an individual remains entitled to the annuity and can begin accepting payment at
     any time upon proper notice to OPM. See id. The appellant cannot yet waive
     payment of his former spouse survivor annuity under 5 U.S.C. § 8345(d) because
     his former spouse is still living. See 5 U.S.C. § 8341(h)(3)(A). Accordingly, the
     administrative judge properly affirmed OPM’s reconsideration decision.

                                           ORDER
¶8         This is the final decision of the Merit Systems Protection Board in this
     appeal. Title 5 of the Code of Federal Regulations, section 1201.113(c) (5 C.F.R.
     § 1201.113(c)).

                       NOTICE TO THE APPELLANT REGARDING
                          YOUR FURTHER REVIEW RIGHTS
           You have the right to request review of this final decision by the United
     States Court of Appeals for the Federal Circuit. You must submit your request to
     the court at the following address:
                               United States Court of Appeals
                                   for the Federal Circuit
                                 717 Madison Place, N.W.
                                  Washington, DC 20439

           The court must receive your request for review no later than 60 calendar
     days after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec.
     27, 2012). If you choose to file, be very careful to file on time. The court has
     held that normally it does not have the authority to waive this statutory deadline
     and that filings that do not comply with the deadline must be dismissed. See
     Pinat v. Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).
                                                                                  6

         If you need further information about your right to appeal this decision to
court, you should refer to the federal law that gives you this right. It is found in
Title 5 of the United States Code, section 7703 (5 U.S.C. § 7703) (as rev. eff.
Dec. 27, 2012). You may read this law as well as other sections of the United
States     Code,     at   our    website,   http://www.mspb.gov/appeals/uscode/htm.
Additional         information     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, and 11.
         If you are interested in securing pro bono representation for your court
appeal, you may visit our website at http://www.mspb.gov/probono for a list of
attorneys who have expressed interest in providing pro bono representation for
Merit Systems Protection Board appellants before the court. The Merit Systems
Protection Board neither endorses the services provided by any attorney nor
warrants that any attorney will accept representation in a given case.



FOR THE BOARD:


______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.
