                      UNITED STATES OF AMERICA
                   MERIT SYSTEMS PROTECTION BOARD


ALAN W. CARTER,                                 DOCKET NUMBER
             Appellant,                         CH-0831-14-0619-I-1

             v.

OFFICE OF PERSONNEL                             DATE: March 4, 2015
  MANAGEMENT,
              Agency,

             and

KAREN CARTER,
             Intervenor.



           THIS FINAL ORDER IS NO NPRECEDENTIAL 1

      Alan W. Carter, Saint Louis, Missouri, pro se.

      Cynthia Reinhold, Washington, D.C., for the agency.

      Erin M. Zielinski, Esquire, St. Louis, Missouri, for the intervenor.


                                      BEFORE

                         Susan Tsui Grundmann, Chairman
                            Mark A. Robbins, Member




1
   A nonprecedential order is one that the Board has determined does not add
sign ificantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
                                                                                      2

                                      FINAL ORDER
¶1        The Office of Personnel Management (OPM) has filed a petition for review
     of the initial decision, which reversed its reconsideration decision regarding the
     processing of the appellant’s amended domestic relations order (DRO). For the
     reasons discussed below, we GRANT OPM’s petition for review, REVERSE the
     initial decision, and AFFIRM OPM’s reconsideration decision.

                      DISCUSSION OF ARGUMENTS ON REVIEW
¶2        The appellant, a former federal employee, submitted his application to
     commence Civil Service Retirement System (CSRS) retirement benefits in 2010.
     Initial Appeal File (IAF), Tab 4 at 102-05. The appellant was previously married
     and divorced during his federal employment.       Id. at 77, 102.    The divorce
     proceedings produced four documents that are material to this appeal.       Those
     documents are:
           (1) a March 3, 1995 Marital Settlement Agreement, id. at 62-76;
           (2) a March 3, 1995 Family Court Judgment and Decree of
              Dissolution, id. at 77-81;
           (3) a June 8, 1995 Domestic Relations Order (1995 DRO), id. at
              55—61; and
           (4) a March 13, 2013 Amended Domestic Relations Order (amended
              DRO), id. at 50-54.
¶3        The appellant’s pension was subject to the terms of the 1995 marital
     settlement agreement which resolved the property rights acquired by each party
     from the marriage. Id. at 63, 65-67. The 1995 DRO was drafted to comply with
     OPM regulations for apportioning benefits under the CSRS. Id. at 55. The 1995
     DRO provided that the intervenor would receive a former spouse survivor annuity
     at the maximum possible amount. Id. at 59. The amended DRO was drafted to
     correct provisions in the 1995 DRO involving CSRS benefits.         Id. at 51.   In
                                                                                           3

     particular, the amended DRO changed the former spouse survivor annuity to
     provide a “prorata share” based on the duration of the marriage. Id. at 52.
¶4        In 2011, OPM notified the appellant that it had processed his former
     spouse’s claim for retirement benefits under the 1995 DRO.              Id. at 98.   The
     appellant filed the amended DRO with OPM in 2013. Id. at 48. OPM notified the
     appellant that it could not process the amended DRO because the appellant had
     already retired and because it was not the first order dividing the marital property
     of the appellant and his former spouse.       Id. at 48.    The appellant requested
     reconsideration of OPM’s decision.      Id. at 14.   OPM issued a reconsideration
     decision that affirmed its initial decision that it could not process the amended
     DRO as it related to the survivor annuity benefit. Id. at 5. OPM informed the
     appellant of his right to appeal the decision to the Board. Id. at 7.
¶5        The appellant initiated a timely Board appeal challenging OPM’s
     reconsideration decision and requested a hearing.          IAF, Tab 1 at 1-6.        The
     administrative judge conducted a conference call with the parties and notified
     them that the appellant’s former spouse must be notified of the appeal and given
     the right to intervene because the outcome of the appeal would affect her rights
     and interests under the retirement plan. IAF, Tab 10 at 1, 3. The appellant’s
     former spouse submitted notice of her intent to intervene in the appeal, and the
     administrative judge granted the request to intervene.       IAF, Tabs 12-13.        The
     administrative judge conducted a subsequent conference call with all the parties
     and reviewed the issues in the appeal. IAF, Tab 14 at 1-3. During the conference
     call, the appellant withdrew his request for hearing, so the administrative judge
     set a close of record date for submission of evidence and argument. Id. at 3. The
     intervenor submitted evidence and argument that she agreed with the appellant’s
     argument that the amended DRO properly reflected the intent of the parties’
     original settlement agreement. IAF, Tab 16 at 3-4.
¶6        The administrative judge issued an initial decision that reversed OPM’s
     reconsideration decision and directed OPM to process the amended DRO as it
                                                                                      4

     related to the survivor annuity. IAF, Tab 17, Initial Decision (ID) at 6-7. The
     administrative judge found that the language of 5 C.F.R. § 838.806(b) allowed for
     the processing of the amended DRO because it was issued before the appellant
     died. ID at 5. The administrative judge reasoned that, because the subsection
     provided for the alternative of the order being issued either the day prior to
     retirement or the date of death, OPM could process the amended DRO if the
     appellant had not died, even though he had retired. ID at 5. In the alternative,
     the administrative judge found that, if 5 C.F.R. § 838.806(a) applied to the DRO,
     it was still acceptable for OPM to process. ID at 5. He stated that the amended
     DRO modified the 1995 DRO which was the second order that divided the marital
     property. ID at 5-6. Because the amended DRO did not modify the first order
     dividing the marital property, OPM could process this order. ID at 5-6.
¶7        OPM has filed a timely petition for review on the initial decision. Petition
     for Review (PFR) File, Tab 1.     The appellant has filed a response to OPM’s
     petition for review and seeks an order directing OPM to refund the excess
     deductions that it took to fund the survivor benefit provided for in the 1995 DRO.
     PFR File, Tab 2 at 11.
¶8        OPM argues that the administrative judge erred in finding the amended
     DRO to be acceptable for processing because the appellant retired before the date
     the court issued the amended DRO. PFR File, Tab 1 at 8. We agree.
¶9        As set forth in 5 U.S.C. § 8341(h), “a former spouse . . . is entitled to a
     survivor annuity under this subsection, 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). Section 8341(h)(4), however, provides that a modification of any
     such court-approved property settlement agreement dealing with a survivor
     annuity shall not be effective if the modification is made after the employee dies
     or retires. 5 U.S.C. § 8341(h)(4). By regulation, OPM has provided that a court
     order issued after an annuitant’s retirement or death and modifying the first order
                                                                                     5

      dividing the marital property is not acceptable for processing.          5 C.F.R.
      § 838.806(a).
¶10         In his initial decision, the administrative judge provided no case law in
      support of his determination that the amended DRO could be processed because
      the appellant had only retired but not died. ID at 5. The facts in the present
      appeal are similar to those in the case of Partain v. Office of Personnel
      Management, 63 F. App’x 473 (Fed. Cir. 2003).             Although Partain is an
      unpublished decision, the Board may rely on unpublished Federal Circuit
      decisions if it finds the court’s reasoning persuasive.    Mauldin v. U.S. Postal
      Service, 115 M.S.P.R. 513, ¶ 12 (2011). In Partain, the federal employee and his
      spouse were divorced in 1994 and their divorce settlement provided for a survivor
      annuity for the former spouse.    Partain, 63 F. App’x at 473.     The employee
      retired in 1999. Id. In 2001, the former spouse obtained orders from the divorce
      court amending the calculation of the survivor annuity, and OPM denied
      processing the adjustments. Id. at 474. The Board found that the 2001 orders
      were issued after the employee retired, so they were not effective to change the
      1994 order that established his former spouse’s survivor annuity.       Id.   Our
      reviewing court affirmed the Board’s decision, finding no legal error in the
      Board’s decision. Id. at 475.
¶11         In the present appeal, the parties were divorced in 1995, and the appellant
      retired in 2010. IAF, Tab 4 at 77, 102. The appellant seeks OPM’s processing of
      an amended DRO issued in 2013. Id. at 50-53. Therefore, the statutory language
      found in 5 U.S.C. § 8341(h)(4) and our case law support OPM’s argument that the
      amended DRO cannot be processed because it was issued after the appellant
      retired.
¶12         In the alternative, the administrative judge also found that the amended
      DRO would be acceptable for processing under 5 C.F.R. § 838.806(a) because it
      modified the second order dividing the marital property and not the first order.
      ID at 5-6. We disagree.
                                                                                            6

¶13         A “modification” in a decree, order, or agreement referred to in section
      8341(h)(1) shall not be effective if the modification is made after the retirement
      of the employee concerned and “to the extent that such modification involves an
      annuity under this subsection.” 5 U.S.C. § 8341(h)(4); Lim v. Office of Personnel
      Management, 98 M.S.P.R. 173, ¶ 6 (2005). As explained in 5 C.F.R. § 838.806:
            A court order awarding a former spouse survivor annuity is not a
            court order acceptable for processing 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.
      Lim, 98 M.S.P.R. 173, ¶ 6 (quoting 5 C.F.R. § 838.806(a)) (emphasis in original).
      The amended DRO, regardless of which order the document modifies, runs afoul
      of the statutory limits in 5 U.S.C. § 8341(h)(4).      First, the amended DRO was
      issued after the appellant retired.    See 5 U.S.C. § 8341(h)(4)(A).       Second, the
      amended DRO is a modification involving a survivor annuity.              See 5 U.S.C.
      § 8341(h)(4)(B).    Because the amended DRO is not effective for purposes of
      modifying the provisions for a survivor annuity under 5 U.S.C. § 8341(h)(4),
      OPM lacks the discretion to process the amendment. See Lim, 98 M.S.P.R. 173,
      ¶¶ 8, 10.
¶14         Accordingly, we REVERSE the administrative judge’s initial decision and
      AFFIRM OPM’s reconsideration decision. 2




      2
        We recognize that both parties agree that the terms of the amended DRO reflect the
      parties’ actual intent regarding the survivor annuity for the appellant’s former spouse.
      IAF, Tab 16 at 4. However, because the appellant retired from the federal service prior
      to correcting the DRO, OPM is barred by statute from processing the amended DRO and
      the statute contains no provision for amendment due to mutual mistake. See 5 U.S.C.
      § 8341; cf. James v. Office of Personnel Management, 372 F.3d 1365, 1369-70 (Fed.
      Cir. 2004) (declining to invalidate an election of a survivor annuity for a new spouse
      based on mutual mistake, in part to avoid the uncertainty that could result from
      allowing introduction of parole evidence contradicting the actual election).
                                                                                  7

                 NOTICE TO THE APPELLANT REGARDING
                    YOUR FURTHER REVIEW RIGHTS
     You have the right to request the United States Court of Appeals for the
Federal Circuit to review this final decision. 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).
     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
                                                                           8

warrants that any attorney will accept representation in a given case.




FOR THE BOARD:                            ______________________________
                                          William D. Spencer
                                          Clerk of the Board
Washington, D.C.
