                 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

                                        05-3104

                               JOSEPH F. DE MELO,

                                                     Petitioner,

                                          v.

                      OFFICE OF PERSONNEL MANAGEMENT,

                                                     Respondent.


                          __________________________

                          DECIDED: August 10, 2005
                          __________________________

Before MICHEL, Chief Judge, SCHALL, and PROST, Circuit Judges.

PER CURIAM.

      Joseph F. De Melo petitions for review of the final decision of the Merit Systems

Protection Board (“Board”) affirming the Office of Personnel Management’s (“OPM’s”)

final determination to award Mr. De Melo’s former spouse the entire net amount of his

retirement annuity.   See De Melo v. Office of Pers. Mgmt., No. DC0831040153-I-1

(M.S.P.B. Jan. 6, 2005). We affirm.

                                      BACKGROUND

      After Mr. De Melo retired from Federal service, he and his wife divorced. As a

result of the divorce, OPM received a court order issued by the Superior Court of New
Jersey, Chancery Division, Family Part, Union County. This court order directed OPM

to pay Mr. De Melo’s former spouse “100% of the Retiree’s gross monthly annuity.”

       In a final decision, OPM found the court order acceptable for processing.

Because OPM determined that payment could not exceed the net amount of Mr.

De Melo’s retirement annuity, see 5 C.F.R. § 838.211(b), OPM advised Mr. De Melo

that it would pay his former spouse the entire net amount rather than the gross amount

of the annuity.

       Mr. De Melo filed a petition for review with the Board. Before analyzing the

merits of OPM’s determination, the administrative judge noted that

              [a]lthough a hearing was initially requested and scheduled in
              this appeal, on March 1, 2004, during the prehearing
              conference, after a discussion of the law applicable to this
              case, [Mr. De Melo] agreed that the appeal would be
              adjudicated based solely on the parties’ written submissions.
              The hearing scheduled was therefore canceled.

De Melo v. Office of Pers. Mgmt., No. DC0831040153-I-1, (M.S.P.B. Mar. 3, 2004), slip

op. at 2. Turning to the merits, the administrative judge indicated that Mr. De Melo did

not dispute that the court order was acceptable for processing or that it awarded his

former spouse 100% of his gross monthly retirement annuity.           According to the

administrative judge, Mr. De Melo only presented assertions that were not appropriate

for the Board to address. Ultimately, the administrative judge found no basis to disturb

OPM’s findings, citing 5 U.S.C. § 8345(j)(1), 5 C.F.R. § 838.1004, and 5 C.F.R.

§ 838.211(b). The initial decision of the administrative judge became final when the full

Board denied Mr. De Melo’s petition for review.

       Mr. De Melo petitions for review of the Board’s final decision.         We have

jurisdiction pursuant to 28 U.S.C. § 1295(a)(9).



05-3104                                     2
                                      DISCUSSION

       We review a decision of the Board to ensure that it is not arbitrary, 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) (2000); Cheeseman v. Office of Pers. Mgmt.,

791 F.2d 138, 140 (Fed. Cir. 1986).

       Mr. De Melo first argues that the Board’s denial of his petition for review is

“wrong” because it did not take into account all the evidence he presented to the Board

in his petition for review. With regard to this disputation, however, Mr. De Melo does not

specifically identify what evidence he believes the Board ignored. Moreover, he has not

attempted to demonstrate that with the exercise of due diligence the evidence he

presented in his petition for review would not have been available before the close of

the record. See 5 C.F.R. § 1201(d)(1) (2004); Wright v. U.S. Postal Serv., 183 F.3d

1328, 1332 (Fed. Cir. 1999).

       Next, Mr. De Melo argues that the administrative judge erred in rendering her

decision “without consulting the parties involved” by canceling the scheduled hearing.

Mr. De Melo admits that there was a prehearing conference, but specifically disagrees

with the administrative judge’s statement that he “agreed that the appeal would be

adjudicated based solely on the parties’ written submissions.” Mr. De Melo’s contention

that he did not agree to waive the hearing directly contradicts the recitation of the facts

in the administrative judge’s initial decision. Mr. De Melo, however, must show “well-

nigh irrefragable proof” to overcome the “strong presumption in the law that

administrative actions are correct and taken in good faith.” Sanders v. U.S. Postal




05-3104                                     3
Serv., 801 F.2d 1328, 1331 (Fed. Cir. 1986). Mr. De Melo’s uncorroborated contention

fails to overcome that presumption.

      Mr. De Melo additionally contends that the New Jersey court did not “divide” his

retirement benefits when it awarded 100% of the gross amount of his retirement

benefits to his wife. Mr. De Melo points us to an OPM regulation, which states:

             A former spouse is entitled to a portion of an employee’s
             retirement benefits only to the extent that the division of
             retirement benefits is expressly provided for by the court
             order. The court order must divide employee retirement
             benefits, award a payment from employee retirement
             benefits, or award a former spouse annuity.

5 C.F.R. § 838.1004(a) (2004) (emphases added). Indeed, this regulation refers to a

former spouse being entitled to a “portion” of retirement benefits when the “division” of

benefits is expressly provided in an appropriate court order.        The relevant statute,

however, requires OPM to pay annuities “in whole or in part”:

             Payments under this subchapter which would otherwise be
             made to an employee, Member, or annuitant based on
             service of that individual shall be paid (in whole or in part) by
             the Office to another person if and to the extent expressly
             provided for in the terms of–

                    (A) any court decree of divorce, annulment, or legal
                    separation, or the terms of any court order or court-
                    approved property settlement agreement incident to
                    any court decree of divorce, annulment, or legal
                    separation . . . .

5 U.S.C. § 8345(j) (2000) (emphasis added). Thus, the regulation’s references to a

“portion” and a “division” of benefits cannot properly be read to require OPM only to

honor partial awards of annuities. In other words, OPM was required to honor the court

order’s award of the entire retirement annuity to Ms. De Melo.




05-3104                                     4
       Mr. De Melo also maintains that the Board erred by failing to take into account

his numerous mental and physical health problems.              OPM, however, has no

discretionary authority to modify the plain language of the court order for any mitigating

reason, including a mental or physical health problem. OPM is required by statute to

pay the amount expressly provided for in the terms of the court order. See id.

       Finally, Mr. De Melo points out that the New Jersey court made its decision

without his acknowledgment, consultation, or presence. According to Mr. De Melo, the

court order was arbitrary and capricious, an abuse of judicial discretion, and illegal for

lack of proper procedure. Specifically, Mr. De Melo alleges that some of the allegations

made by the New Jersey court, and particularly ones related to his finances, are

unsubstantiated and false. Mr. De Melo is unable to point to any statute or regulation

authorizing OPM, the Board, or this Court to review the underlying merits of a state

court divorce order disposing a retirement annuity in a divorce proceeding, and we

decline the invitation to do so. In short, this is not the proper forum for challenging the

underlying merits of the New Jersey court’s order.

       We have reviewed the Board’s final decision, and we find that it is not arbitrary,

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.

                                     CONCLUSION

       For the foregoing reasons, we affirm the final decision of the Board.




05-3104                                     5
