             NOTE: Pursuant to Fed. Cir. R. 47.6, this disposition is not
             citable as precedent. It is a public record. The disposition
             will appear in tables published periodically.

     United States Court of Appeals for the Federal Circuit

                                      05-3221

                                 CAROL A. ROCCO,

                                                    Petitioner

                                          v.


                     OFFICE OF PERSONNEL MANAGEMENT,

                                                    Respondent.

                          ___________________________

                          DECIDED:   November 18, 2005
                          ___________________________


Before MAYER, Circuit Judge, FRIEDMAN, Senior Circuit Judge, and BRYSON, Circuit
Judge.

PER CURIAM.

       The divorced wife of a deceased retired federal civilian employee seeks a

portion of her former husband’s Civil Service Survival Annuity.    She relies upon a

provision of the divorce decree. The Merit Systems Protection Board (“Board”) upheld

the decision of the Office of Personnel Management (“OPM”) that under the governing

statutes and regulations she could not invoke the divorce decree as a basis for her

claim. We affirm.
                                             I

      The facts are undisputed. Carol and Louis Rocco married in 1967. At the time,

he was serving in the United States Army. He retired from the United States Army in

1978 and began drawing military retirement benefits. He then started working for the

Department of Veterans Affairs.

      In 1984 the Roccos were divorced in New Mexico. The divorce decree gave her

“[o]ne-third of the disposable retired or retainer pay of Husband.” Under the decree,

      [he] also agree[d] to retain [Carol Rocco] as the irrevocable beneficiary of
      the survivor benefit annuity portion of his retirement pay . . . This voluntary
      election by [Louis Rocco] is in consideration of [Carol Rocco]’s having
      given up her career on numerous occasions to relocate and start again in
      her own career because of changes in [Louis Rocco]’s duty stations during
      his military career.


Louis Rocco then made for Carol Rocco a “deemed former spouse election” with the

Department of the Army (“Army”) to create a survivor benefit annuity. OPM paid his

former wife one third of his retirement pay, as the divorce decree provided.

      Later in 1994, Louis Rocco remarried.

      In November 2000, he retired from his civilian job.         He waived his military

retirement pay so his military service could be included in calculating the amount of his

Civil Service retirement annuity.   In effecting that waiver, Louis Rocco did not fully

complete OPM’s prescribed form. Because of this, OPM did not learn of the divorce

decree until 2001, after it had accepted the waiver.

      In March 2001, Louis Rocco elected a survivor benefit “for my spouse.”            In

August 2001, OPM learned about the divorce decree, and retroactively deducted from

Louis Rocco’s annuity and paid Carol Rocco the amounts she would have received



05-3221                                     2
under the divorce decree.      Pub L. No. 104-201 (1996); see 5 U.S.C. § 8411(c)(5)

(2000).

       Louis Rocco died in October 2002. Carol Rocco applied for survivor’s annuity

payments under the Civil Service retirement system. She based her claim to those

benefits on the divorce decree.

       OPM denied the claim. In its reconsideration decision, it stated that the Civil

Service Retirement Spouse Equity Act of 1984 (“Spouse Equity Act”), Pub. L. No. 98-

615, 98 Stat. 3195, which allowed OPM to consider divorce decrees, did not cover

divorces occurring before May 7, 1985, and that the divorce decree “did not instruct Mr.

Rocco to provide survivor benefits for you after his death.”

       The Board affirmed. In his initial decision, which became final when the Board

denied review, the administrative judge held that Carol Rocco did not “qualify for a

survivor’s benefit under” the Spouse Equity Act because “the provisions of [that] Act that

allow for the enforcement of divorce decrees are only applicable to decrees issued on or

after May 7, 1985, and the appellant and the annuitant were divorced in March 1984.”

He stated that the provisions that permitted “a former spouse to apply for a survivor

annuity without regard to the provision in the applicable divorce decree required that

such applications be filed by May 7, 1989, and the appellant did not request a survivor

annuity until after the annuitant’s death in 2002.” The administrative judge further held

that, in waiving military retirement pay in 2001, Louis Rocco had not shown the

“‘required unmistakable intent’ to elect a survivor annuity” for his former wife.




05-3221                                       3
                                            II

       Carol Rocco primarily bases her claim to a survivor’s annuity on the provisions of

the divorce decree giving her “[o]ne-third of the disposable retired or retainer pay of

[her] Husband” and agreeing to “retain” [her] as the irrevocable beneficiary of the

survivor benefit annuity portion of his retirement pay.” If Louis Rocco had continued to

receive retirement benefits under the Army retirement system, she could have had a

valid claim.

       Unfortunately for Carol Rocco, however, her former husband waived his right

under the military retirement system, and elected instead to use his military service to

increase his civil service retirement benefits. The effect of that waiver was to end his

military retirement benefits and to limit his retirement benefits to those provided under

the Civil Service Retirement Act.

       Under the Spouse Equity Act, which governs the rights of civil service annuitants’

spouses or former spouses, “a former spouse of a deceased employee . . . 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.” 5 U.S.C. § 8341 (h)(1) (2000). The Act further

provided that § 8341 would be effective “one hundred and eighty days after enactment”

and would apply “to any individual who, on or after such effective date, is married to any

employee or Member.” 93 Stat. at 3204; see 5 U.S.C. 8341 (note).

       In other words, the divorce-protected rights of a former spouse recognized in §

8341(h)(1) exist only with respect to individuals who were spouses 180 days after the

effective date of the Act, i.e., on May 7, 1985. Accordingly, there are no federal survivor

rights under the Spouse Equity Act based on divorces before May 7, 1985.             OPM



05-3221                                     4
regulations so recognize. See 5 C.F.R. § 838.1004(d)(1) (2004) (only divorce decrees

rendered on or after May 7, 1985 are “qualifying court orders”).

       Because the Roccos were divorced in 1984, Carol Rocco cannot invoke that

provision of the Spouse Equity Act, upon which her claim to survivor annuity benefits

primarily rests.

       Carol Rocco also relies on 10 U.S.C. § 1450(f)(2) (2000), which bars members of

the military establishment who are required, pursuant to a divorce decree or court order,

to provide an annuity to a former spouse, from changing an election to provide such

annuity expect pursuant to a court order authorizing such change.        This provision,

however, deals only with annuities for members of the military service.         It is not

available to Carol Rocco, because her former husband waived his retirement benefits

under the military retirement system when he elected to use his military service to

enhance his Civil Service Retirement Benefits.

       Carol Rocco also challenges her former husband’s waiver of military retirement

benefits because of alleged procedural errors in effecting that action. In the context of

this case, however, these arguments are unpersuasive.

       Finally, she apparently argues that the government should be estopped from

denying her military survivor’s benefit because it failed to give her adequate notice for

her to challenge Louis Rocco’s waiver of those benefits. The Supreme Court “has

never upheld as assertion of estoppel against the Government by a claimant seeking

public funds.”     Office of Personnel Management v. Richmond, 496 U.S. 414, 434

(1990). “Payments of money from the Federal Treasury are limited to those authorized

by statute.” Id. at 416. As we have shown, there is no statutory authorization for



05-3221                                     5
payment of civil service annuity retirement benefits to Carol Rocco, and she cannot

invoke estoppel to obtain such benefits.

       We realize that our decision defeats some of Carol Rocco’s expectations under

the divorce decree. On the other hand, when Louis Rocco elected a survivor’s annuity

“for my spouse,” after retirement from his civilian job, he intended to benefit his second

wife rather than Carol Rocco.      In any event, under the complex detailed statutory

provisions governing retirement and survivor benefits for former wives of military and

civilian employees, Carol Rocco could not qualify for Louis Rocco’s survivor’s annuity

benefits.

                                        CONCLUSION

       The decision of the Merit Systems Protection Board upholding OPM’s denial of

survivor’s benefits to Carol Rocco is

                                        AFFIRMED.




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