                   NOTE: This disposition is nonprecedential.

    United States Court of Appeals for the Federal Circuit

                                    06-3325

                              JOHN H. STRAITON,

                                                      Petitioner,

                                        v.

                  OFFICE OF PERSONNEL MANAGEMENT,

                                                      Respondent.

                        ___________________________

                        DECIDED: December 8, 2006
                        ___________________________

Before RADER and DYK, Circuit Judges, and WHYTE, District Judge.*

RADER, Circuit Judge.

       John H Straiton petitions for review of the final decision of the Merit

Systems Protection Board (Board) that affirmed the decision of the Office of

Personnel Management (OPM).          OPM based Mr. Straiton’s share of his

retirement annuity on Mr. Straiton’s actual monthly annuity payment at the time of

retirement rather than on a hypothetical monthly annuity payment based on his

salary at the time of his divorce. Straiton v. Office of Pers. Mgmt., No. AT-0831-

05-0798-I-1 (MSPB Nov. 18, 2005)(Final Decision). Discerning no error, this

court affirms.

                                        I

*
    Honorable Ronald Whyte, District Judge, United States District Court for the
Northern District of California, sitting by designation.
       John and Esther Straiton divorced on April 10, 1987 after approximately

sixteen and one-half years of marriage. On September 3, 2000, Mr. Straiton

retired from the federal government after thirty-three years of federal service.

Upon his retirement, OPM calculated the division of his retirement annuity based

on a hypothetical annuity using an “average pay” of $50,354 - the pay Mr.

Straiton expected to receive at the time of the divorce under the couple’s

marriage settlement agreement (MSA).

       More than three years after Mr. Straiton retired, OPM reconsidered its

interpretation of the divorce judgment. OPM concluded that the divorce judgment

did not contain express language limiting Mrs. Straiton’s portion of Mr. Straiton’s

annuity to the annuitant’s pay level at the time of the divorce.      OPM further

concluded the express language of the divorce judgment did not limit the “total

years of service” in the annuity formula to the length of service at the time of the

divorce.      Additionally, OPM granted Mrs. Straiton annual cost-of-living

adjustments.

       Based on its revised interpretation of the divorce judgment, OPM

determined it had underpaid Mrs. Straiton and overpaid Mr. Straiton a total of

$24,123.31.    On July 1, 2004, OPM notified Mr. Straiton of OPM’s intent to

recover these funds. Mr. Staiton appeals.

                                         II

       This court must affirm the Board’s decision unless it is arbitrary,

capricious, an abuse of discretion, or otherwise not in accordance with law;

obtained without procedures required by law, rule, or regulation having been



06-3325                                  2
followed; or unsupported by substantial evidence. 5 U.S.C. § 7703(c); Kewley v.

Dep’t of Health & Human Servs., 153 F.3d 1357, 1361 (Fed. Cir. 1998).

       A former spouse receives that portion of an employee's retirement benefits

expressly provided in a divorce order. 5 C.F.R. § 838.1004(a) (2006). Further,

       [u]nless the court order directly and unequivocally orders otherwise,
       a court order that awards a former spouse a portion of an employee
       annuity either on a percentage basis or by use of a fraction or
       formula provides that the former spouse's share of the employee
       annuity will be adjusted to maintain the same percentage or fraction
       whenever the employee annuity changes as a result of--

          (i) Salary adjustments occurring after the date of the decree and
          before the employee retires; and

          (ii) Cost-of-living adjustments occurring after the date of the
          decree and after the date of the employee's retirement.

5 C.F.R. § 838.622(b)(1) (2006).

       The After Acquired Property and Retirement Rights sections of the MSA

are as follows:

              10. AFTER ACQUIRED PROPERTY: All income, earnings,
       or other property received or acquired by either party to this
       agreement on or after the date of separation shall be the sole and
       separate property of the receiving or acquiring party. Each party as
       of the effective date of this agreement, does hereby and forever
       waive, release and relinquish all right, title, and interest in and to
       such income, earnings, or other properties so received or so
       acquired by the other party.

                22. RETIREMENT RIGHTS:
                For 16½ years during the marriage of the parties, Husband
       was employed as a civil servant in the United STates [sic]
       government (NASA), and is to be rated GS 14, Step 5, at a salary
       rate of $50,354 to commence upon his entering into work at
       Kennedy Space Center, Florida. (The parties acknowledge that in
       California they enjoyed a higher income from husband’s
       employment, due to special pay reflecting California’s higher cost of
       living).
                The parties agree that based on the 16½ years as set forth
       above, the community property equation as to wife’s rights in said


06-3325                                  3
       retirement, is ½ x 16½ over total years of service, x monthly
       income.
               The parties further agree that, upon Husband’s retirement
       from the employment giving rise to retirement rights recited herein,
       the income then received shall be divided between the parties
       according to the formula above-cited; and that husband will do
       nothing to prevent such income from being divided at the source, to
       the extent that such division is available from the paying source at
       that time. (Emphasis added)

       In addition to the MSA, the divorce judgment includes an “Attachment to

Judgment of Dissolution of Marriage,” reciting, inter alia,

              IT IS FURTHER ORDERED that petitioner is entitled to a
       community property share of Respondent’s NASA retirement
       income as follows: ½ x 16½ over total years of service x monthly
       income. Upon Respondent’s retirement from NASA employment,
       the income then received shall be divided according to the above
       formula and Respondent shall do nothing to prevent such income
       from being divided at the source. (Emphasis added.)

       Mr. Straiton argues the phrase “as set forth above” in section 22 of the

MSA refers to the $50,354 salary recited in the preceding paragraph. OPM,

however, suggests a more natural reading of section 22 in which “as set forth

above” refers to, and emphasizes the “16½ years” recited in the preceding

paragraph and repeated just before to “as set forth above.” Further, although

MSA refers to Mr. Straiton’s expected salary at the time of the divorce, it does not

expressly require use of this salary in the calculation of the division of the

annuity.

       Regarding Mr. Straiton’s argument that OPM’s revised interpretation

creates an inconsistency between sections 10 and 22 of the MSA, this argument

necessarily requires equating retirement income as an after acquired income,

earnings, or other property.     The Board, however, explicitly found retirement

benefits are not income, earnings, or property and that section 10 does not apply.


06-3325                                   4
Indeed, Mr. Straiton’s reading of a conflict between sections 10 and 22 would

completely render section 22 ineffective.

         Additionally, Mr. Straiton’s relies on In re Marriage of Brown, 15 Cal.3d

838, (1976) for the proposition that division of his retirement annuity must be

based on his salary at the time of his divorce.        His reliance on Brown is

misplaced. In overruling French v. French 17 Cal.2d 775 (1941), the California

Supreme Court merely held that non-vested pension rights are community

property. 15 Cal.3d at 842. Brown enunciates only the unremarkable proposition

that community property, including rights to community assets not yet vested,

must be divided equally at the time of divorce.      Id. at 847-48.   Brown says

nothing regarding the actual determination of the community property or its

division.

         For the foregoing reasons, this court affirms the final decision of the

Board.




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