                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     FREDERICK G. THORNE, JR.,                       DOCKET NUMBER
                   Appellant,                        AT-0831-13-1823-I-1

                  v.

     OFFICE OF PERSONNEL                             DATE: October 17, 2014
       MANAGEMENT,
                   Agency.



                THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Frederick G. Thorne, Jr., Malabar, Florida, pro se.

           Tynika Faison-Johnson, Washington, D.C., for the agency.


                                           BEFORE

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


                                       FINAL ORDER

¶1         The appellant has filed a petition for review of the initial decision, which
     affirmed the final decision of the Office of Personnel Management (OPM)
     awarding a portion of the appellant’s Civil Service Retirement System (CSRS)
     annuity to his former spouse. Generally, we grant petitions such as this one only

     1
        A nonprecedential order is one that the Board has determined does not add
     significantly 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 Parties may cite nonprecedential orders,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

     when: the initial decision contains erroneous findings of material fact; the initial
     decision is based on an erroneous interpretation of statute or regulation or the
     erroneous application of the law to the facts of the case; the judge’s rulings
     during either the course of the appeal or the initial decision were not consistent
     with required procedures or involved an abuse of discretion, and the resulting
     error affected the outcome of the case; or new and material evidence or legal
     argument is available that, despite the petitioner’s due diligence, was not
     available when the record closed. See Title 5 of the Code of Federal Regulations,
     section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this
     appeal, and based on the following points and authorities, we conclude that the
     petitioner has not established any basis under section 1201.115 for granting the
     petition for review. Therefore, we DENY the petition for review and AFFIRM
     the initial decision, which is now the Board’s final decision.             5 C.F.R.
     § 1201.113(b).

                                      BACKGROUND
¶2        The appellant and his former spouse were married from January 1, 1974,
     until they divorced on May 20, 1993, a period spanning 232 months of the
     appellant’s creditable service under the CSRS. Initial Appeal File (IAF), Tab 5 at
     30. On March 3, 1997, the appellant and his former spouse entered into a second
     amended order (“Order”) regarding the appellant’s civil service retirement. Id. at
     29-33. The Order stated that the appellant assigned to the former spouse “an
     annuity” to be determined in the following manner:
           The CSRS and the OPM shall determine the Employee’s entitlement
           to all retirement benefits under the plan as of May 20, 1993. The
           amount determined shall be the amount in total benefits the
           Employee would have received had he retired on that day. The
           amount so determined shall then be divided in half, with one-half set
           aside as the Former Spouse’s share of the Employee’s entitlement to
           retirement benefits as of that date. The Former Spouse’s one-half,
           and any accretion to said one-half, shall be paid to her at such time
           as the retirement goes into pay status. The Former Spouse’s share
                                                                                           3

            shall not be credited with any amount paid into the retirement plan
            by or on behalf of the Employee after May 20, 1993. The Former
            Spouse’s share shall only be credited with growth resulting from
            passive gains by her interest in the plan, if any.
     Id. at 30.   The Order further explained the former spouse’s right to receive
     “annuity payments” under the agreement, stating that the appellant would “take
     all necessary steps to ensure that the [f]ormer [s]pouse’s annuity payments”
     would begin as soon as she may receive them under the Order. Id. at 32.
¶3         The appellant’s retirement annuity commenced on June 1, 2011, and OPM
     initially computed the former spouse’s apportionment as 50 percent of the
     appellant’s gross annuity as of the commencement date. IAF, Tab 1 at 9. After
     the   appellant    contested   the    apportionment   amount,    OPM    corrected    the
     apportionment based on the language of the Order, calculating the former
     spouse’s annuity using the appellant’s high-three average salary and months of
     service as of May 20, 1993. Id. at 9-10. The appellant filed a reconsideration
     request with OPM, arguing that the intent of the Order was that his contributions
     as of May 20, 1993, would be divided, rather than establish an ongoing monthly
     annuity to his former spouse. Id. at 10. In its reconsideration decision, OPM
     notified the appellant that, under 5 C.F.R. § 838.612, a court order using the term
     “retirement benefits” can be used to divide either an employee annuity or refund
     of employee contributions, and that because the appellant applied for a retirement
     annuity rather than a refund of his contributions, OPM was required by the Order
     to use the formula in the court order dividing the monthly annuity. Id. However,
     OPM     notified    the   appellant     that   he   could   petition   the   court   for
     modification/clarification of the Order, and that it would accept an amended court
     order pursuant to 5 C.F.R. § 838.225. Id.
¶4         The appellant filed this appeal, arguing that OPM had repeatedly
     misinterpreted the Order and miscalculated his civil service retirement benefits
     without explaining how the calculations were made. Id. at 4-5. He argued that
     because he was only 45 years of age and had only 19 years and 4 months of
                                                                                             4

     creditable service as of May 20, 1993, he had no retirement eligibility as of that
     date and thus no retirement annuity to divide.              IAF, Tab 8 at 5.         The
     administrative judge sent a notice to the appellant’s former spouse regarding her
     right to participate as an intervenor in the appeal. IAF, Tab 10. 2
¶5         The administrative judge conducted a prehearing conference, during which
     the parties agreed that the issues in the appeal are whether the Order dated March
     3, 1997:    (1) is valid and enforceable, and (2) obligates OPM to provide an
     ongoing annuity to the appellant’s former spouse, rather than a one-time division
     of the appellant’s retirement contributions as of May 20, 1993. IAF, Tab 14. The
     administrative judge confirmed the issues with the parties during the December 4,
     2013 hearing. IAF, Tab 15, Hearing Tape. During the hearing, the appellant
     argued that the Order was enforceable and that, by its clear language, his former
     spouse was entitled to only one-half of his retirement contributions as of May 20,
     1993, but not to any portion of his retirement annuity. The administrative judge
     affirmed OPM’s reconsideration decision, finding that the Order was enforceable
     and acceptable for processing, and that the appellant had not established by a
     preponderance of the evidence that the Order required a one-time payment to his
     former spouse or that OPM had incorrectly calculated the appellant’s share of the
     retirement annuity. IAF, Tab 16, Initial Decision (ID) at 4-6.
¶6         In his petition for review, the appellant repeats his argument that OPM had
     misinterpreted the Order and maintains that the administrative judge failed to
     consider the Order in its entirety. Petition for Review (PFR) File, Tab 1 at 4-5.
     The appellant further argues that OPM’s prior recalculations of the retirement


     2
       The notice was mailed to the appellant’s former spouse but was returned to sender.
     IAF, Tab 14. Although the appellant’s former spouse did not receive the notice, we
     find that it did not prejudice her substantive rights and does not warrant a remand
     because her rights have not been adversely affected by either the initial decision or this
     final order. See Alexander v. Office of Personnel Management, 58 M.S.P.R. 358, 368
     (1993).
                                                                                      5

     annuity apportionments indicated a lack of competency and clear understanding
     of the Order. Id. at 5.

                      DISCUSSION OF ARGUMENTS ON REVIEW
¶7         The appellant has the burden of proving, by a preponderance of the
     evidence, that his former spouse is not entitled to the portion of his annuity
     benefits   awarded        by   OPM.     Hamilton     v.   Office   of   Personnel
     Management, 114 M.S.P.R. 439, ¶ 14 (2010); see Cheeseman v. Office of
     Personnel Management, 791 F.2d 138, 140-41 (Fed. Cir. 1986). A preponderance
     of the evidence is that degree of relevant evidence that a reasonable person,
     considering the record as a whole, would accept as sufficient to find that a
     contested fact is more likely to be true than untrue. Hamilton, 114 M.S.P.R. 439,
     ¶ 14; 5 C.F.R. § 1201.56(c)(2). In this case, the appellant must establish that
     OPM incorrectly interpreted the Order in calculating his former spouse’s share of
     his retirement benefits.
¶8         The appellant testified in the hearing that the language of the Order was
     clear, and he made no argument in his petition for review that the Order was not
     valid and enforceable. See PFR File, Tab 1 at 4-5. The appellant has made no
     argument that the administrative judge erred in finding that the Order met the
     requirements for processing under 5 C.F.R. Part 838, and we find no reason to
     disturb this finding. Instead, the petition for review focuses on the second issue
     in the appeal, asserting that the Order entitled his former spouse only to one-half
     of the contributions paid into the retirement system as of May 20, 1993. Id. In
     interpreting the terms of a court order awarding a former spouse a share of an
     employee annuity or a refund of contributions, OPM applies the regulations under
     5 C.F.R. Part 838, Subpart F. See 5 C.F.R. §§ 838.102(a)(4), 838.601(a). The
     regulations distinguish between the division of an employee annuity and refund of
     employee contributions.        A court order using the terms “annuities” and
     “retirement benefits” may be used to divide an annuity or a refund of
                                                                                       6

      contributions, while such terms as “contributions” and “deposits” may only be
      used to divide the amount of employee contributions paid into the fund. 5 C.F.R.
      § 838.612.
¶9         We find that the appellant has failed to establish by a preponderance of the
      evidence that his former spouse is entitled to only a lump-sum payment of
      one-half of his retirement contributions as of May 20, 1993, or that OPM
      miscalculated his annuity.   As noted above, OPM informed the appellant that,
      because he had elected and received retirement benefits rather than taking a
      refund of his contributions, the agency was obligated to use a monthly annuity in
      calculating the share for his former spouse.     IAF, Tab 1 at 10; see 5 C.F.R.
      § 838.612. The Order contained a separate provision regarding the apportionment
      of a “lump-sum credit” that would be triggered by the appellant’s receipt of such
      credit, in contrast to the provision regarding dividing the CSRS annuity that
      would occur “at such time as the retirement goes into pay status.” IAF, Tab 5
      at 30-31.    OPM’s and the administrative judge’s interpretation that the Order
      called for an annuity for the former spouse is reasonable on its face and supported
      by the plain language of the Order.      Id. at 29-33.   In addition to the direct
      reference to an annuity in the clause dividing the CSRS plan benefits, the Order
      also refers to the former spouse’s right to receive “annuity payments,” which
      undermines the appellant’s argument that the Order called for a one-time
      payment. Id. at 32. Even though the appellant was not eligible for immediate
      retirement as of May 20, 1993, OPM’s regulations provide that “[a] court order
      that awards a portion of an employee annuity as of a specified date before the
      employee’s retirement awards the former spouse a prorata share” of the
      employee’s gross monthly annuity. 5 C.F.R. § 838.621(c); see IAF, Tab 8 at 5;
      see also Hamilton, 114 M.S.P.R. 439, ¶ 16.
¶10        The record does not support a finding that OPM’s recomputed former
      spouse annuity calculations are incorrect or a misinterpretation of the Order. A
      court order that awards a portion of an employee annuity as of a specified date
                                                                                7

prior to the employee’s retirement generally awards the former spouse a pro rata
share, which is defined as one-half of the fraction whose numerator is the number
of months of federal civilian and military service that the employee performed
during the marriage and whose denominator is the total number of months of
federal service.    5 C.F.R. § 838.621(a), (c); see Adler v. Office of Personnel
Management, 114 M.S.P.R. 651, ¶ 12 (2010), aff’d, 437 F. App’x 928 (Fed. Cir.
2011); Hamilton, 114 M.S.P.R. 439, ¶¶ 16-17. The first amended order regarding
the CSRS in the appellant’s divorce proceedings explicitly used this formula.
IAF, Tab 5 at 45. The appellant and his former spouse then amended the division
of marital property in the Order, signifying that they did not wish to use this
standard formula.    See id. at 30.    We find OPM’s interpretation of the Order
reasonable on its face, finding that the appellant’s former spouse’s share of the
annuity should account for only the high-three salary and creditable service as of
May 20, 1993. IAF, Tab 1 at 9-10. Such a formula adequately accounts for the
language of the Order entitling the former spouse to a one-half share of
“retirement benefits” as of May 20, 1993, but with no credit for amounts paid into
the retirement system after that date. See IAF, Tab 5 at 30. Finally, we note that
both OPM and the administrative judge notified the appellant that he could seek a
clarification/modification of the Order from the court and that the appellant
maintains that the Order was clear and enforceable. See IAF, Tab 1 at 10; ID at
6; PFR File, Tab 1 at 4-5.

                   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
                                                                                  8

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




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